Opinion piece by Errol Naidoo
Article source: Family Policy Institute
“Rescue SA Civil Rights Alliance” (RSACRA) founding affidavit challenging the constitutionality of race-based laws in SA was lodged with the North Gauteng High Court on 19 May. This constitutes the first of several High Court cases RSACRA will file to hold government accountable for its constitutional failures and crimes against the people of SA.
The founding affidavit challenging the constitutionality of race-based laws in SA was scheduled to be lodged with the High Court on 30 April. However, the application was delayed by Advocate Mark Oppenheimer SC to strengthen and enhance the affidavit.
The case against unlawful race classification laws in SA’s post-apartheid “non-racist, non-sexist” democracy will be argued in the High Court by one of the country’s foremost constitutional law experts, Adv Mark Oppenheimer SC. Arguments in the founding affidavit are a product of the RSACRA legal team. We believe this is a strong and winnable case.
Summary: The framework upon which race based laws are based is irrational and unlawful because it relies on racial classification without any legally defined or constitutionally compliant mechanism for determining race. It offends the founding principle of non-racialism in the Constitution by entrenching race as a decisive factor in law and policy.
The 142 race-based laws currently on South Africa’s statute books are inconsistent with international law, which permits remedial measures only if they are temporary and subject to sunset clauses, which are absent here. It has failed to achieve its stated objectives, resulting not in broad-based advancement, but in limited benefit and continued inequality.
RSACRA’s application is grounded in the Constitution, specifically sections 1(b) (non-racialism), 1(c) (rule of law), 2 (constitutional supremacy), and 9 (equality), which require that any differentiation be lawful, rational, and constitutionally compliant.
There is currently no lawful statutory mechanism that defines or regulates how race is to be determined in SA following the repeal of the Population Registration Act 30 of 1950. Despite this, numerous laws and policies still depend on racial classification as a gateway to employment opportunities, procurement participation, licensing, and economic benefits.
This creates a system that is uncertain, arbitrary, and inconsistent with the rule of law, as individuals and entities are required to be classified without clear legal standards. International law permits remedial or special measures only if they are temporary, proportionate, and capable of achieving clearly defined objectives. This framework fails.
The legislation contains no sunset clauses, no measurable benchmarks, and no clear endpoint to determine when its objectives have been achieved. After approximately 30 years of constitutional democracy, these measures have not produced broad-based advancement, have disproportionately benefited a limited group of (politically connected) individuals, and have coincided with economic decline and reduced overall prosperity.
As a result, measures that were intended to be temporary and remedial have become permanent, self-sustaining, and disconnected from their original purpose.The State cannot justify the indefinite continuation of these measures on the basis that their objectives have not been achieved, particularly where such failure may be attributable to poor implementation, maladministration, or (state facilitated) corruption.
The application contends that, after three decades, the continued enforcement of race-based measures is irrational, arbitrary, and constitutionally unsustainable.
The relief sought is not to abolish all legislation, but to declare such measures invalid to the extent that they rely on racial classification without lawful criteria, lack measurable outcomes, and operate without temporal limits.
The application further seeks a declaration of constitutional invalidity, a suspension period to allow Parliament to correct the defects, and an interim regime to prevent coercive or unlawful classification.( Please pray for the success of RSACRA’s High Court application.)
Subsequent applications by RSACRA’s legal teams include prosecuting the ANC led government for denying children’s constitutional rights, its failure to uphold the freedoms and security of citizens and the deteriorating socio-economic environment as a result of rampant state facilitated corruption, fraud, money laundering and gross mismanagement.
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Date published: 19/05/2026
Feature image: Sourced through Magnific for illustration purposes only.
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