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THIRTY YEARS INTO DEMOCRACY: SHOULD RACE, NATIONALITY AND GENDER STILL BE REQUIRED FOR LAND AUDITS?

Issued by Ismail Joosub on behalf of the FW de Klerk Foundation on 13/01/2025

 

President Cyril Ramaphosa recently signed into law the Deeds Registries Amendment Act of 2024, a significant piece of legislation aimed at modernising South Africa’s land registration processes. This Act amends the Deeds Registries Act of 1937, seeking to streamline deed registration procedures and enhance uniformity in the system. Section 6 introduces a notable amendment to section 10 of the principal Act, specifically adding section 10(1)(t). This section authorises the Minister of Agriculture, Land Reform and Rural Development to regulate the collection of personal information concerning race, gender, citizenship and nationality for statistical and land audit purposes.

 

Purpose and Use of Personal Information

The Deeds Registries Amendment Act specifies that the collection of sensitive personal data such as race, gender, citizenship and nationality will be solely for statistical purposes and land audits. In particular, the information will be used to monitor land ownership patterns and identify potential imbalances or historical inequities in land distribution. Importantly, the law guarantees that this data will not be made available to the public. It will only be used internally by the relevant departments for governmental purposes, such as land audits and statistical reporting.

Despite this assurance of confidentiality, the provision still raises concerns about whether the state should continue to collect such information, especially when the country’s democratic principles emphasise equality and non-racialism.

 

Constitutional Considerations

South Africa’s Constitution enshrines the values of equality, human dignity and freedom from discrimination. Section 9(1) of the Constitution states that all people are equal before the law and are entitled to the equal protection and benefit of the law. However, section 9(2) allows for affirmative action measures designed to address the socio-economic inequalities resulting from apartheid. The Constitution, thus, provides a limited justification for race-based measures when they serve to correct past discrimination.

Nonetheless, section 9(3) of the Constitution prohibits unfair discrimination on the grounds of race, gender and nationality, unless such measures can be justified in terms of broader goals like promoting equality. This creates a tension: While the Constitution allows affirmative action to address past disadvantages, it also requires that such measures be carefully tailored to ensure they do not perpetuate discrimination. Affirmative action must be justified by ongoing, demonstrable need and should evolve in response to changing social and economic conditions.

Given the passage of time since apartheid ended, the question arises: Is it still necessary to collect racial and demographic data, or could this data be replaced with more appropriate indicators of inequality, such as economic need or geographic location?

 

The Van Heerden Case

The Van Heerden case (Minister of Finance v. Van Heerden, 2004) provides critical legal context for assessing the constitutionality of race-based measures. In this case, the Constitutional Court emphasised that affirmative action measures must be necessary, appropriate and effective in achieving legitimate public goals. It also clarified that such measures should not perpetuate existing inequalities, but should be directed at advancing disadvantaged groups, without unfairly disadvantaging others.

Applying these principles to land reform, the critical question is whether the continued use of race as a primary category for land audits remains justified. Three decades into democracy, the need for race-based categorisation in land audits is increasingly debatable. While past imbalances in land ownership are undeniable, focusing solely on race risks perpetuating divisions that the Constitution seeks to overcome.

 

Moving Beyond Racial Categories

The Constitution’s Preamble calls for a non-racial society where opportunities are not defined by race. This vision stands in contrast to the ongoing use of race-based (amongst other) categories in the Deeds Registries Amendment Act. Although race remains a valid indicator for addressing historical land imbalances, it is increasingly being recognised that socio-economic status, rather than race, might be a more accurate reflection of need.

Over time, South Africa’s land reform discourse has evolved to consider a wider range of factors, such as poverty and economic exclusion, in addition to racial considerations. This broader understanding reflects the idea that land reform should not only seek to redress historical racial disparities, but also tackle contemporary socio-economic inequalities. In this context, an emphasis on economic need, rather than solely on race, may be a more effective way to achieve long-term transformation and justice.

For example, land audits could focus on geographic regions or communities that have experienced persistent poverty and marginalisation, regardless of the racial composition of those communities. This approach aligns with the Constitution’s broader commitment to equality and non-racialism.

 

Impact on Dignity and Privacy

Furthermore, the ongoing collection of race, nationality and gender data raises significant concerns about privacy and dignity, especially under the Protection of Personal Information Act (“POPIA”). POPIA mandates that personal data be collected only for specific, lawful purposes and handled with due regard for individual privacy. While the Deeds Registries Amendment Act states that such information will not be publicly available, the very act of collecting sensitive personal data raises questions about how well individuals’ dignity will be protected.

Given South Africa’s history of racial classification and the continuing social challenges related to race and nationality, the collection of such data—especially for statistical purposes—could inadvertently reinforce racial and national divisions. The potential for misuse of this data is real and the government must ensure that robust safeguards are in place to protect individuals’ dignity and privacy.

 

Alternatives to Race-Based Measures

One of the core principles of our Constitution is to build a non-racial society. In the context of land reform, there are growing calls to move beyond race-based measures. Rather than using race as a primary category, land audits could be based on socio-economic indicators such as income, access to housing, education and employment. These factors more accurately reflect the realities of those in need of land reform, irrespective of race.

Government land reform initiatives increasingly focus on the economic status of individuals, not just their racial identity. This shift aligns with the evolving vision of a South Africa where race is no longer the defining characteristic of disadvantage.

 

Conclusion

The introduction of section 10(1)(t) in the Deeds Registries Amendment Act raises fundamental constitutional and practical questions about the continued relevance of race, nationality and gender data collection. While the collection of such information may serve certain policy goals, the country’s democratic principles of equality, non-racialism and dignity demand that we critically assess whether these categories are still necessary for land audits and reform after three decades of democracy.

The time may have come to move beyond race-based measures. The government should consider using more inclusive, socio-economic criteria that better reflect the need for land reform. South Africa’s Constitution envisions a future where race no longer defines one’s opportunities or access to resources. To fulfil this vision, we must reconsider the tools we use to address inequality and ensure that personal information is handled with the utmost respect for privacy and dignity.

The FW de Klerk Foundation Annual Conference

The FW de Klerk Foundation Annual Conference – hosted in conjunction with the Konrad-Adenauer-Stiftung – took place on 31 January 2025. The theme of this year’s conference is: “South Africa’s Position in the World Today”.
 

 Esteemed speakers include Ambassador Andreas Peschke (Ambassador of the Federal Republic of Germany); Magda Wierzycka (CEO of Sygnia); Dr Harlan Cloete (Local Governance and Public Leadership – Research Fellow) and Johan “Rassie” Erasmus (Springbok Coach).