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Rex van Schalkwyk | 19 June 2023

Without a definition of the term ‘black’, the proposed water regulations are meaningless.

The ANC government has re-racialised the SA body politic. The most recent example is the set of regulations that prescribe racial quotas for water licensing for bulk usage (predominantly by large irrigation farmers, but excluding mining).

Subterranean and surface water was nationalised, together with mineral rights, by the ANC shortly after it came to political power. This means in effect that access to these valuable resources is accessible only upon application and as the prerogative of the government.

Such vast powers can, of course, be abused. And abused they have been. The ANC has an oft-repeated agenda for the expropriation of property without compensation. Many critics of this policy have expressed the view that the immediate victims will be large-scale farmers, many of whom have extensive irrigation lands. These are surely the most valuable, and viable, farms in the country. Now the ANC has come up with a plan.

Draft regulations published by the department of water & sanitation stipulate the shareholding to be held by “blacks” as a qualifier and precondition to the issue of a licence for the use of water above a certain threshold. There is a sliding scale, which terminates at 1-million cubic metres, in a prescribed period, at which level the entity must be controlled by a minimum 75% black ownership.

It follows that a farming venture requiring this volume of water will be denied a licence if the racial target is not met. How is a successful irrigation farmer to contrive a 75% black ownership for his property without surrendering that portion, essentially for no reward? That will amount to expropriation without compensation done “voluntarily”.

There are at least two fundamental problems with this sleight of hand: it is a form of legislation done by decree (regulation), whose substance can be legitimately realised only by an act of parliament; and the regulation in this form lacks certainty. Both failures are violations of the rule of law, which is a foundational principle of SA law. This essay will deal only with the second of the two failures; the first is an issue for another day.

The rule of law decrees that a law made by a lawful authority must be certain: it must be certain as to its purpose and it must be certain as to its meaning. Moreover, it must be certain as to its method of application. Any form of ambiguity in the law renders it uncertain and therefore unenforceable.

The question that arises regarding the draft regulations is the meaning to be attached to the word “black”. Is it, for instance, a generic term used, as the Americans do, to apply to any person of mixed race; to a person of Asian extraction; or a person who merely identifies with and has habitually assumed “black” habits and culture?

What about someone who, in imitation of the transgender movement, simply identifies as black? This may, of course, be done for good reason. A close friend of mine whose grandfather went to war returned to find his son, a toddler when he left, in the care of a Basotho family, speaking only Sesotho and wearing what in Afrikaans is called a stertriempie.

Does an objective test exist to define “blackness”? The apartheid government recognised this conundrum and understood that something had to be done about it. For this reason it came up with the Population Registration Act, whereby every citizen was classified according to race, which was recorded in that person’s identity document. An office for race classification was established to oversee the process of racial categorisation.

Before the ANC government came to power it was recognised, very sensibly, that the continuation of this law was inimical to the nonracial dispensation the new constitutional order decreed, and it was unceremoniously scrapped by the outgoing National Party.

Now, however, the ANC government has a need for a Population Registration Act again. Without a clear definition of the term “black”, and a corresponding definition of those who are not so qualified, the proposed regulations become meaningless, and therefore unlawful.

The ANC must decide: is SA a nonracial democracy, or a re-racialised aristocracy akin to that of the apartheid government?

• Van Schalkwyk, a former supreme court judge, is an author and chairs the Free Market Foundation board and rule of law panel. He writes in his personal capacity.

‘Disclaimer - The views expressed here are not necessarily those of the BEE CHAMBER’.

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