By Ismail Joosub

Distinguished guests, colleagues and fellow South Africans, we gather today to turn our Constitution’s promise of equality and dignity into a lived reality for all. At the outset, let us confront some harsh realities: Nearly 30 years after democracy, South Africa remains one of the most unequal countries on earth. Unemployment is staggeringly high – roughly one in three adults is jobless and nearly half of young people cannot find work. Millions live in poverty. So you see, these aren’t just statistics, they reflect the daily reality of young graduates unable to find jobs and of families struggling to put food on the table. We see the frustration of a generation with much to offer but no chance to participate. As Nelson Mandela reminded us, “Overcoming poverty is not a gesture of charity, it is an act of justice.” This cannot continue. I put it to you: Is this the inclusive prosperity we envisioned in 1994? Clearly not. Yet we are not here to lose hope – we are here to chart a path forward. Now we must examine our legal landscape and ask whether our laws are healing the wounds of our past or inadvertently creating new ones.

South Africa’s Constitution is our lodestar, enshrining non-racialism, human dignity, the achievement of equality and the advancement of human rights and freedoms as founding values of the Republic. Section 9 of the Bill of Rights guarantees equality and even permits affirmative measures (under section 9(2)) to advance those disadvantaged by unfair discrimination. Thus, the Government may make laws that discriminate against South Africans based on their race to achieve substantive equality – i.e. a South Africa where everyone fully and equally enjoys all rights and freedoms. Importantly, the Constitutional Court in Minister of Justice v Van Heerden has held that for such redress measures to be presumed to be fair, they must meet three key requirements: first, they must target a genuinely disadvantaged group; second, they must be reasonably designed to protect or uplift that group; and third, they should not impose such substantial and undue harm on those excluded from its benefits that South Africa’s long-term constitutional goal (of a non-racial and non-sexist society) would be threatened. In other words, affirmative policies should be a bridge to a future of equal opportunity, not a permanent new inequality.

However, the Constitution, with its founding value of non-racialism, clearly never intended affirmative action to become a perpetual racial entitlement, because this would threaten the long-term goal of a non-racial society. Surely, the sun must eventually set. We must always keep front of mind that the ultimate goal, as Justice Ngcobo noted, is a non-racial, non-sexist society where each person’s worth is equal. Thus, any policy that undermines that long-term vision by entrenching racial division or elite privilege betrays our Constitution’s ideals. And remember, our Constitution even protects the right to free economic activity – section 22 says every citizen has the right to choose their trade, occupation, or profession freely. But for that right to be meaningful, citizens must have real access to opportunities, capital and skills.

With this vision in mind, we must ask: Do our current economic policies align with these principles, or do they fall short?

Indeed, the jurisprudential test laid down in Minister of Finance v Van Heerden is not simply a constitutional suggestion, it is a binding doctrinal framework within which all affirmative action must operate. The Constitutional Court made it unequivocally clear: a measure cannot claim the protection of section 9(2) unless is reasonably capable of attaining the desired outcome- it must be carefully designed to advance those disadvantaged by unfair discrimination and not merely be a racial proxy or serve an elite class. This is captured in the subsidiary law that gives effect to section 9 of the Constitution – the Equality Act, which states that “it is not unfair discrimination to take measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination or the members of such groups or categories of persons”. However, if the remedial measures are arbitrary, capricious or display naked preference they could hardly be said to be designed to achieve the constitutionally authorised end. It is sufficient if the measure carries a reasonable likelihood of meeting the end.  Importantly, in terms of van Heerden the measure cannot impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal – the non-racial society – would be threatened.

Furthermore, section 1 of the Constitution lists non-racialism and non-sexism as founding values, meaning that any measure that fails to meet the three requirements set out in van Heerden, will be mere unfair discrimination based on race – something which is prohibited by the Equality Act. Any infringement on the rights to equality, dignity, or occupational freedom must pass the test laid down in section 36 of the Constitution- the limitations clause. I.e. it must show itself to be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. If not, it fails constitutional muster.

I put it to you, then: prolonged reliance on race-based criteria in government policies that entrench permanent racial classification, ignore economic nuance and ultimately serve the few over the many are not merely flawed – they are unconstitutional: This is because:

1. They undermine our long-term constitutional goal and lack design. This means that they must be presumed to be unfair discrimination on the ground of race – something that is prohibited by both the Equality Act and the Constitution; and
2. They fail to pass the Equality Act’s fairness test, because [insert].

As we evaluate our policies, it becomes clear that South Africa has many well-intentioned transformation laws – notably the Broad-Based Black Economic Empowerment Act (B-BBEE Act of 2003) and the Employment Equity Act of 1998. On paper, these aim to redress apartheid’s legacy. In practice, however, too often they have become tick-box exercises rather than engines of real inclusion.

Take B-BBEE. Its noble intent was to broaden black ownership and opportunity. Yet over time it has devolved into a compliance checklist. Companies chase points for black ownership and procurement, but how much empowerment is actually happening on the ground? Even the B-BBEE Commission has cautioned against this “tick-box” culture. The result is that while some politically connected individuals have become very wealthy, the masses of disadvantaged South Africans have seen little change. In fact, leading analysts like Professor William Gumede conclude that BEE has led to increased poverty, unemployment and inequality – thus widening the gap it was meant to close. Put plainly, B-BBEE may have hurt the black majority more than anyone, by creating a small wealthy elite while leaving most people no better off. As one civil society group observed, BEE has become “an elitist policy designed to protect connected interests at the expense of the unemployed majority”. The consequences are felt in missed opportunities: for example, onerous BEE rules even blocked the entry of Starlink, a satellite internet service that could have provided cheap broadband in rural areas. Prof Gumede even estimates that over R1 trillion in BEE deals has enriched fewer than 100 people since 1994. That is hardly broad-based empowerment. We still see sky-high black poverty and youth unemployment despite decades of BEE – a clear sign that we’ve pursued the right goals with the wrong tools.

The same constitutional concerns arise with the proposed R100 billion Transformation Fund. While positioned as a tool for economic inclusion, the fund builds on the same flawed foundations as B-BBEE: Its allocation of benefits based primarily on race raises red flags under section 1 (non-racialism) and section 9 (equality) of the Constitution, particularly since B-BBEE has demonstrably failed to reduce inequality. Moreover, the fund’s structure appears to bypass the National Revenue Fund in violation of section 213 of the Constitution, while tying public procurement eligibility to contributions may breach section 217’s requirements for competitiveness and cost-effectiveness. Without express parliamentary approval, it risks becoming a shadow budget, vulnerable to elite capture and political misuse. Let me be clear: this is not transformation by constitutional design; it is redistribution by executive fiat. South Africa cannot afford another unaccountable fund that entrenches inequality while ignoring the principles of legality, transparency and outcome-based empowerment.

The same pattern appears in other areas. Our employment equity regulations, meant to foster workplace diversity, sometimes default to rigid quotas without actually improving skills or job creation. For instance, the Employment Equity Amendment Act of 2022 introduces binding “sectoral numerical targets” across 18 sectors, requiring companies with more than 50 employees to align their workforce demographics with national or regional racial profiles or risk penalties including fines of up to R2,7 million or 10% of annual turnover and disqualification from state tenders. This centralised approach empowers the Minister of Employment and Labour to set these targets in consultation with sector stakeholders, but critics argue it effectively imposes racial quotas without addressing underlying inequalities in education and training. Such one-size-fits-all rules risk hurting businesses and workers alike, without truly empowering those in need. And while strong labour laws protect those with jobs, they have also made employers hesitant to hire new workers. Analyst Johann Els, Chief Economist at Old Mutual, has even warned that South Africa will never reach the 5-6% GDP growth we need as long as our labour market remains so over-regulated. So you see, a law that inadvertently discourages hiring ends up hurting the very people it’s meant to help – the unemployed.

I would be remiss not to mention that South Africa also has, what we can euphemistically call, a “spending problem”. How many of you remember the recent budget scandal(s)? The truth is, our stagnant economic growth cannot be separated from how government spends. According to the Auditor-General, over R38 billion was lost to fruitless and wasteful expenditure in the 2023/24 financial year alone. That figure nearly cancels out the projected R42 billion to be have been gained from the controversial VAT increase – proving that revenue shortfalls are not just a function of low taxes, but of poor fiscal discipline. The AG also warned that over 70% of audited departments failed to comply with basic financial controls, weakening service delivery and economic impact. How can we expect investors, entrepreneurs, or even job-seekers to thrive in an environment where public funds vanish through mismanagement? If we’re serious about growth, then reform must begin with government itself. Spending must be efficient, transparent and constitutional – anything less undermines the rule of law and betrays the very people such budgets claim to serve.

Meanwhile, an informal, or township, economy thrives outside the formal legal framework. Millions of people rely on the informal sector for their very survival – nearly 20% of all employed South Africans work in informal businesses – yet our policies largely ignore or even inhibit this sector with burdensome by-laws, instead of supporting it. Formalising major players like the taxi industry could unlock jobs, revenue and safer infrastructure – and broaden the tax base for SARS without raising rates.. This informal market is not a “problem” to police – it is an opportunity to cultivate. Failing to recognise and assist the informal sector means missing a huge chance for inclusive growth at the community level.

In short, many of our current laws, from BEE to labour rules, focus on form over substance. They measure inputs and compliance, rather than actual outcomes. We must change that. Are these policies delivering real equality and inclusion, or just paperwork? I put it to you that the evidence points to the latter. To truly achieve an inclusive economy, we need to move beyond ticking boxes and start moving the needle on poverty, unemployment and ownership for the many.

How do we fix these missteps and better align our policies with our Constitution’s vision? We must be bold and innovative. Let’s consider a few shifts.

First, measure real outcomes and not just paperwork. We should create a Transformation Index or scorecard that rewards tangible results: jobs created, skills developed and businesses funded, rather than only percentages of black ownership. For example, if a company invests heavily in training young black engineers or supports 50 new township entrepreneurs, that should count more than a token ownership deal. Empowerment must be about uplifting people, not just transferring stakes on paper.

Second, target socio-economic need. Over time, we should shift criteria from race to class. Race was a proxy for disadvantage – but nearly thirty years on, we can refine our approach. An inclusive policy might prioritise poor rural communities, township youth, or women entrepreneurs across all races who face the greatest barriers. By using socio-economic indicators (education, income, location) to guide support, we ensure help goes to those who truly need it, while preventing a new elite capture. This upholds section 9(2)’s call to advance the disadvantaged, without creating perpetual racial categories.

Third, promote broad-based ownership and enterprise. Instead of forcing companies into narrow BEE ownership deals, allow more flexibility through mechanisms like Equity Equivalents. This existing program lets firms invest in community development or small black-owned businesses in lieu of handing over equity – resulting in tangible empowerment. We should expand such alternatives. Likewise, encourage Employee Share Ownership Plans (“ESOPs”) that give workers a direct stake in their companies, spreading wealth to ordinary employees and truly broadening ownership. We can also explore enterprise zones in disadvantaged areas by offering tax breaks and streamlined rules for businesses that set up and hire locally. These ideas, proven elsewhere, could unlock growth in communities that need it most. We may even venture so far as to suggest a bold reset – for instance, establishing an Opportunity Fund to finance education and new enterprises for the poor, or adopting a non-racial economic empowerment policy that focuses purely on economic disadvantage and merit. These proposals aim to achieve equity by uplifting the underprivileged of all races, rather than enforcing narrow racial quotas.

Fourth, pursue smart reform of labour laws. We can protect workers and encourage hiring at the same time. The law should make it easier for firms to take a chance on inexperienced job-seekers. For example, simplifying dismissal procedures for probationary employees, or exempting very small businesses from certain onerous regulations, could stimulate job creation without undermining core labour rights. The Constitution’s guarantee of fair labour practices does not demand red tape that stifles jobs. We can strike a balance that maintains worker dignity while reducing the fear employers have of expanding their workforce.

Every one of these shifts moves us closer to substantive equality. In each case, we focus on capacity-building and opportunity – in line with the Constitution’s vision – rather than mere token compliance. The end goal is a healthy, inclusive economy where redress is achieved through growth and empowerment, not zero-sum redistribution among a few. By realigning our policies now, we can ensure that today’s corrective measures lay the foundation for tomorrow’s truly non-racial, prosperous society.

Finally, achieving an inclusive economy will require a new partnership between government, business and communities. The public sector must create an environment where the private sector can thrive and invest, because the private sector has the capital, expertise and networks to create jobs at scale. We must also confront hard truths: at present, the bulk of government revenue is eaten up by the public sector wage bill and debt service, leaving too little for development. This must change through discipline and reform. Policy certainty is crucial. When rules like mining charters or licensing requirements keep changing or become too onerous, investors take their money elsewhere. We must send a clear message that South Africa is open for business and welcomes all who can help grow our economy.

Government’s role is to provide policy certainty and infrastructure and to spend public resources efficiently on the services that enable growth (education, healthcare, security). Business’s role, in turn, is to invest and expand here at home – to train workers, to innovate, to build industries. Moreover, we should seize opportunities in emerging sectors – from renewable energy to digital services to agro-processing – where our country can create jobs. By encouraging investment and skills development in these high-growth industries, we can leapfrog constraints and generate inclusive growth for the 21st century. We should incentivise enterprise through sensible measures: cut unnecessary red tape, streamline permits and offer tax breaks for those who build factories or call centres in high-unemployment areas. Rather than government and business being at odds, they must work hand-in-hand. When a company grows and hires, South Africa wins; when government ensures the rule of law and a skilled workforce, business wins. It’s a mutual dependence that we must cultivate.

Our nation has a youth bulge. Every year, hundreds of thousands of school-leavers and graduates join the labour market. We need to ensure they find opportunities here at home – not languish in unemployment or leave for greener pastures. Crucially, we must give young South Africans a stake in this partnership. Youth are not just beneficiaries; they are innovators and entrepreneurs in their own right. Let’s support youth-led startups, expand apprenticeships and learnerships and make it easier for a first-time job-seeker to get that initial experience. Remember, investing in our youth is investing in our country’s future. We simply cannot build an inclusive economy if we leave behind the very generation that will carry our nation forward.

This spirit of partnership – government as enabler, business as driver and citizens as active participants – is how we will generate the inclusive growth we seek. It aligns with our Constitution’s call for national unity and shared prosperity. Everyone has a role: the state sets the stage, business creates opportunity and our people seize those opportunities to improve their lives and communities.

For a moment, let us step back and recognise that our mission here echoes a global call. The G20’s theme this year is “Solidarity, Equality, Sustainability” – and this is exactly the sustainability we speak of today. Even this microphone I am speaking into, if you think about it, is a product of global solidarity and shared progress. Its components were mined, manufactured and assembled through cooperation across many countries – a tangible reminder that our world is interconnected. So, when we champion sustainability, we mean not only protecting our environment but also sustaining our society and economy for future generations. That requires solidarity in our efforts and a commitment to equality, so that all our people, especially the youth, can share in the growth. So when we speak about sustainability, what we are really referring to are young people, for they are the future. Their energy and creativity will sustain our nation in the decades to come. Investing in them – in their education, in their startups, in their skills – is how we ensure that the ideals of solidarity, equality and sustainability take root for generations to come.

Ladies and Gentlemen, we stand at a crossroads. We can either cling to failing formulas and watch our dream deferred, or we can embrace bold reforms and fulfil our Constitution’s promise. I am confident we will choose the latter. Why? Because everywhere I look, I see South Africans determined to turn promises into reality.

Let’s imagine the South Africa we strive for: an inclusive economy where a child in a rural village or township has the same chance to prosper as a child in any suburb; where your hard work and talent – not your skin colour or family connections – determine your success; where every person who wants to work or start a business finds doors open, not walls. It’s a nation where inequality fades and shared prosperity grows. A nation true to the spirit of our Constitution.

The road will not be easy. But we have a guiding light in our Constitution and a wealth of ideas (many shared here today) to get us there. Now it falls to us – government, business, civil society and citizens alike – to act. We must carry forward the insights from this conference into concrete changes in policy and practice. We must insist that from this day, outcome-driven inclusion becomes the yardstick for all economic policy.

I leave you with one final thought – in one word: hope. Despite our challenges, I have hope – hope that our youth will see a brighter future in this land, hope that we will unite across all divides to build a sustainable prosperity for all. I know we have the principles, the people and the passion to truly achieve an inclusive economy. Let us go forward from here and make it happen. Together, we will surely succeed.

Together, let us make our economy inclusive and bring the Constitution’s promise to life for everyone. Thank you.