The country will not change until it re-examines itself and discovers what it really means by freedom.
James Baldwin
Sometimes change doesn’t require more horsepower. Sometimes we just need to unlock the parking brake.
Jonah Berger
Author’s note:
I accept that constitutionally authorised redress is legitimate, and I also think its design, evidence base and duration are properly open to challenge. I write as someone interested in how South Africa argues about this, not as a neutral observer of the outcome. This article is neither legal argument nor political positioning (there is enough of that), but conflict analysis.
Introduction
In late September 2026, Dr Martin van Staden, Head of Policy at the Free Market Foundation (FMF) and editor of the Institute of Race Relations’ Index of Race Law, addressed the National Press Club in Washington, DC, at the White Cross Project Conference hosted by Lex Libertas. The text on which the address was based was published in the Daily Friend the day before, and I rely on that text here.
It repeats the figures that arguably have become one of the most quoted statistics in South Africa’s race debate. The Index’s latest update is dated 11 June 2025, and it records 324 racial Acts of Parliament in total, of which 145 are operative. Van Staden’s text adds that 136 of the 145 remain racially operative, and that 122 of the 324 were adopted since the end of apartheid, which is roughly 38%.
The number has travelled far beyond its source. Journalist Anton Harber, executive director of the Henry Nxumalo Foundation, says the claim no doubt lies behind a tweet by Democratic Alliance politician Helen Zille that there are more racist laws today than under apartheid. On 12 December 2025, tech billionaire Elon Musk posted on X that South Africa now has more anti-white laws than apartheid had anti-Black laws. In mid-September 2026, Washington announced visa restrictions on people it deems complicit in “race-based discrimination,” discussed below.
While that number (the “145”) changes from time to time, my arguments here are not dependent on exactly where it is pitched. Accuracy in the count matters for other reasons, but I am not here too concerned about the number itself.
For me, two questions follow. What does the number establish? And what does it do? The first concerns law and method; the second concerns conflict dynamics. The answers diverge, and the damage is done in how we as a nation deal with that narrative as it spins off in different directions. As conflict analysis, I want to assess some of the allegations, criticisms and the harm being done, and then add a few points of strategy that I believe would sharpen the debate and improve the results.
1. Counting apples and oranges
I begin with the strongest objection, because the rest follows from it. Apartheid was not a quantity of statutes. It was a system: racial classification imposed by the state, a racial franchise, forced removals, controls on movement, residence and education, and criminal sanction for crossing the lines. Counting Acts and comparing totals is like comparing two legal orders or reported cases by page count.
The Index’s own design makes the point, even if inadvertently. It is binary: a law is a race law or it is not, with no scale of severity. Its test is broad. In Van Staden’s own summary, the Index asks whether an Act recognises or creates a legal relevance for race, or lets an official make race relevant. In effect, it asks whether skin colour does or could matter at all to what the law is concerned with. So an Act with a representivity requirement for appointing a board member counts the same as the Act that anchors the post-1994 framework. The table runs from the Coloured Persons’ Education Act of 1963, still formally on the statute book, to the Drug-Free Sport, National Library and Weather Service Acts, where, on Harber’s account, race enters through a single board-appointment clause.
Van Staden has answers. A single racial provision is enough, he says, because the 1961 and 1983 Constitutions also referred to race only fleetingly yet are rightly regarded as foundational race laws. He adds that, had the 1996 Constitution been an ordinary Act of Parliament, it too would be on the Index. As to the National Water Act, he argues that its redress provisions have in practice been construed to mean that government consciously takes the race of recipients into account, and he points to its board-composition provisions on demographic representation.
On the purpose clauses, that reasoning may be right semantically, but it is an inference about administrative practice, not a textual finding, and it is counted as one unit like any other. And if even the Constitution would qualify, the count plainly cannot distinguish racial exclusion from the constitutionally authorised redress that the Constitution itself permits.
The Index also counts only Acts of Parliament for now, not regulations, codes or charters, and Van Staden says the true number is far higher. It excludes Amendment Acts, which he says avoids double counting. Whatever the true total, a count of statutes is not weighted for burden, which is why it cannot survive comparative analysis. Van Staden himself has drawn the distinction the Index cannot. Addressing an AfriForum conference in May 2024, he said that pre-1994 race law was significantly more harmful than post-1994 race law; that post-1994 race law is more peripheral and cosmetic, though growing more harmful each year, and is poorly implemented by an incapable state; that most post-1994 race laws are representivity provisions that, as a classical liberal, he does not think matter much; and that the real harm lies in a small handful of laws imposing private-sector requirements.
This is important for our assessment. By his own account, the harm is not in the large body of public-sector representivity provisions but in a handful of statutes, and counting Acts cannot tell the difference. The Index also discloses a crucial caveat. “Operative” means not formally repealed, and some originally racial laws from before 1994 remain formally operative but are not enforceable, given the 1993 and 1996 constitutions. Van Staden explains why he does not go further: he limits his own discretion, declining to decide which laws are “functionally obsolete,” because that would force him to judge constitutionality, and by that logic he could deem the Employment Equity and B-BBEE Acts unenforceable too. The convention, he says, is that Parliament explicitly repeals what it no longer wants. That is a principled position, and in my view it answers any suggestion that the vagueness is for effect. The table does, however, allow a reader to bound the question. On my count of the June 2025 table (readers can verify it from the Index’s downloadable spreadsheet), 114 of the 145 operative laws are post-1994 and 31 are pre-1994. Of those 31, nine are deracialised, six were originally non-racial and later racialized, one is classed as ancillary, and about 15 are originally racial pre-1994 statutes. Those 15 are the only candidates for “dead letters,” so the potentially dormant category is at most roughly a tenth of the headline. That is a fair criticism of the headline figure, but a modest one. Harber calls the 1921 Bethelsdorp Settlement Act, one of the 15, long dormant and irrelevant. Van Staden’s answer is that the real scandal is Parliament’s failure to repeal it despite a decade-old Law Reform Commission recommendation. On that, he has a point, albeit a different one than the sheer weight of “145 race laws” The Index also counts “Ancillary” laws, those not necessarily directly racial in their text but forming a necessary part of race law, including laws whose racial nature is unclear. By my count, about five of the 145 fall in that category.
The FMF has answers to the wider critique, and often in the shrillness of partisan debate we do ourselves a disfavour by not stating both (or all) sides fairly. Take Harber’s review of eight listed laws as an illustration. He found several in which race barely features: long-redundant laws, some that make no mention of race, some that mention it only to prohibit discrimination, and some that allow no more than recording demographic details. Van Staden replies that Harber acknowledges the racial character of virtually every law he considers and objects to the label, not the facts.
The Index excludes laws that merely prohibit racial discrimination, he says, but it counts statutes that prohibit discrimination while themselves making race relevant. The Labour Relations Act, for instance, is included because of its provisions on affirmative action programmes and on the demographic composition of the CCMA. The Index also corrects itself: after a public query, Van Staden acknowledged an error concerning the Waste Act, and the live table now shows it, along with the Protected Areas and National Small Enterprise Acts, as “Racialized” rather than originally “Racial.” He says at least three mainstream media houses have fact-checked the Index and found it accurate as far as picking up occurrences of race-in-law. Harber’s sample of eight is thin, and the Index invites the public to report errors. That is good practice, and it undercuts any claim that the Index is carelessly assembled.
And this is where the debate and its conclusions get fuzzy, often (I am prepared to accept) unintentionally. The Index answers “how many statutes touch race?” It does not answer “how much racial exclusion exists?” If we had 5,000 “race laws” but none established or maintained racial exclusion, we would have no exclusion problem to speak of, even if we would still have a debate about classification, which I return to below. Every downstream use of the figure assumes the second question has been properly answered.
2. What the FMF does get right
I have written before about how catastrophically and unnecessarily we misunderstand and argue about the BBBEE conflict (see the sources below). That is one of the main reasons I believe this is a worthwhile debate to have, but to have in a more informed manner. As much as modern media models force us into partisanship, the “race-based laws” framing does get some important aspects of this lingering, complex conflict correct.
I would agree with the FMF on at least five points.
(a) The Index is real, transparent and corrected in public
It lists its caveats, including the nine deracialised laws and the unenforceable pre-1994 statutes, it publishes its update history, and it invites error reports. Critics rarely dispute that these laws exist and use race in some legal way. Van Staden’s own summary of the debate is that the critics do not claim the laws are imaginary but that they are necessary, and that they shifted from a fact-check to a “vibe-check.” On existence, he is largely right. Dismissing the Index as propaganda is wrong and tactically foolish. That strategy is what fuels identity conflicts (not the same as identity politics).
(b) Intention cannot be the test
If a definition turned on legislators’ good intentions, any apartheid statute could be rescued by its architects’ stated purposes. Working with the intention of the legislator is an established and generally reliable legal tool to work with in specific instances of vagueness or ambiguity, but it does not help us in this assessment and its wider reach. Van Staden makes this point sharply: nobody asks today whether the intentions behind the laws that entrenched slavery, segregation or apartheid were pure. A law that requires racial classification requires it, whether or not the purpose is noble. Critics who say “that isn’t really a race law” stand on weaker ground than those who say “it is, and it is lawful.”
(c) Non-racialism is a founding constitutional value
Section 1(b) of the Constitution lists it among the founding values. A state that makes business, employment and procurement turn on racial declaration is making a trade-off, and trade-offs deserve continuing scrutiny. Van Staden identifies the B-BBEE, Employment Equity, Competition and Public Procurement Acts as the four laws that in practice make it impossible or nearly impossible to do substantive business without accounting for race. That argument is real, and in my reading the rebuttals I have seen have mostly asserted, rather than shown, why that reach is necessary, especially if we weigh advantages to disadvantages over the last three decades, as a comprehensive conflict analysis should do.
(d) “Not required” is correct, at least for the private economy Section 9(2) of the Constitution is permissive: redress measures may be taken. The Constitution does not mandate any particular racial instrument in the private economy, and the FMF is entitled to say so. (By Van Staden’s own account, the Constitution does require broad representivity in the public service, the judiciary and Chapter 9 institutions, which I return to below.) That is a gap a defender of the status quo must fill with argument, and in my experience the replies tend to rely on slogans rather than on comparative models of redress used elsewhere (see my article on other available models).
(e) The FMF has an alternative, and it deserves engagement
Van Staden argues that opportunities and burdens should follow people’s actual present socio-economic circumstances rather than their race, and his Washington text criticises the fact that the laws carry no exemption for poor whites or for rich Black South Africans. Defenders who treat the FMF as simply denialists, or worse, will lose to a position that is coherent and that also appears in mainstream reform debates, here and elsewhere. The FMF is also not uniform in tone: Dr Brian Benfield, a retired Wits economics professor and FMF board member, stresses in a recent Business Day piece that his warning to financial regulators is not an argument against transformation. Those valid arguments are also, in the marketplace of ideas, assisted by some very inept strategizing by opponents of the Index and that approach. State defensiveness has also helped its critics.
The Constitutional Court requires redress to be capable of achieving equality. In SARIPA (2018), as one example, a ministerial policy failed section 9(2) because the record did not show it was likely to achieve equality, and the majority also found it arbitrary and beyond the Minister’s powers. Redress is not self-justifying, and defenders who behave as though it were hand the FMF its best material.
3. Where the argument collapses
Before we focus on the conflict analysis as a lens, there is one clearly observable error that most of these debates make, and clarifying it should help before we go further. The Index measures race-in-law. Helen Zille’s claim, as Harber presents it, concerns racist law. Musk’s concerns anti-white law. These are different propositions with different burdens of proof, and in practice they would require different strategies to manage or resolve. They overlap only to the extent that a given law is shown to impose unfair burdens, which the Index does not test, and the 145 supports only the first category.
Van Staden, to be fair, has made a version of the anti-white claim himself: in April 2025 he wrote that virtually all of the race laws still enforced today operate primarily against white individuals, while insisting that the Index does not judge whether any law is harmful or beneficial. It is an assertion the Index cannot support. The Index also does not support the comparison that has attached to it. On the Index’s own totals, 122 of 324 Acts, about 38%, post-date 1994. That leaves roughly 200 that pre-date it. The Index dates each Act by its original adoption, so an older Act racialized after 1994 (the Insolvency Act, racialized in 2003, which Van Staden himself uses as an example, or the Deeds Registries Act) we find in the older group. Whether the number operative today exceeds the number operative at some past date is a different comparison, and I have not seen the Index publish it. Van Staden’s Washington text uses the 38% figure, not a claim that today’s total exceeds apartheid’s.
The leap to “more than apartheid” is made by others, but it is made from his number. Even if one conceded, for argument’s sake, that post-1994 South Africa has more race laws than apartheid South Africa had, which the Index’s own totals do not establish, it would not help with the concerns raised thus far. The neutrality claim needs careful consideration, because Van Staden is open about it.
He has said that he and the IRR hold a normative view of race law, and that the Index (the table, the dataset) is meant to be a neutral resource. In 2024 he described it, at least in its then state, as “not an analytical tool, but simply an informative database.” The difficulty is that the Index’s own page describes the laws as covering race relevance “usually by creating racial disabilities and burdens,” and its masthead calls it an index of legislated colour discrimination. That wording presupposes the answer to the question at the heart of the debate: burden or redress? The dataset’s own title and framing are normative even if its definition is binary. Van Staden is also a member of AfriForum, the Afrikaner-focused civil-rights organization, appeared in its documentary on race law, and says AfriForum has not exaggerated anything unduly in using the Index. His advocacy goes further, and the tone has changed. In May 2024 he described post-1994 race law as more peripheral and cosmetic than apartheid’s.
In the published text of his Washington address, he describes South African race law as formally totalitarian, says it touches every domain of society, and calls it racial persecution. He says that on a plain reading the Constitution is designed as a firewall against race law. He asks American businesses to practise “maximum achievable non-compliance” with South African race laws, and asks Washington to cooperate only with private South African entities that have publicly opposed them. Audiences differ, but a reader should notice the distance. That escalation in rhetoric is clear, and undoubtedly intentional. Harber reports that Van Staden now compares the 2024 Deeds Registries amendment to the Group Areas Act, although in Harber’s reading the Act’s only reference to race empowers the registrar to record a purchaser’s demographic details for statistical and land-audit purposes.
Van Staden’s reply is that the Act is classification of the kind the Population Registration Act embodied, and that the records of racial ownership will be weaponised for redistribution purposes in the future. That is a prediction about future use. Today the Act classifies; it does not yet exclude. That is another distinction the tool as designed cannot make. Building a neutral dataset and campaigning with it are both legitimate, and Van Staden is open about both roles. The narrower point is that the more the dataset is carried into advocacy, the more its framing has to be judged as advocacy. Defend it, use it as a tool, all fair, but be clear when the tool stops and the argument starts.
The constitutional claim
Van Staden’s position is two-tiered, and any assessment not bearing that in mind suffers in accuracy. In May 2025 he wrote that the Constitution is itself a race law only to the degree that it requires demographic representivity in the judiciary, Chapter 9 commissions and the public service (sections 174(2), 193(2) and 195(1) (i)), that most post-1994 race laws trace back to section 195(1) (i), and that section 9(2) has been racially construed, which he regards as perverse.
In 2024 he argued that no provision of the Constitution allows government to enforce racial regimentation in private entities. Against that background, the FMF’s advance announcement for Washington, that race law is “not required - and in fact prohibited - by the Constitution,” is best read as a claim about the private-economy statutes, not about public-sector representivity, which he accepts the Constitution requires.
On that narrower claim, it is a serious argument, but it is not the law as it stands. Section 9(2) provides that measures designed to protect or advance categories of persons disadvantaged by unfair discrimination may be taken. Under Van Heerden (2004), a defender can answer a discrimination claim by showing that the measure falls within section 9(2). In Barnard (2014), the Constitutional Court’s early case on affirmative action under the Employment Equity Act, it applied that approach and held that the police employment equity plan and its implementation passed the three-prong test for a restitutionary measure. The Act itself permits preferential treatment and numerical goals but excludes quotas (section 15(3)).
There is a serious academic argument that the Act’s scheme is unconstitutional. Andre Louw, then at Stellenbosch University’s Faculty of Law, reiterates the need for restitutionary measures such as affirmative action but concludes that Chapter III of the Employment Equity Act pursues a state social-engineering agenda rather than the equality right, and calls for its scrapping. These are respectable positions. But they are positions in a debate, not statements of what the courts have held, and they should be presented as such.
The “go to court” argument
Van Staden argues that “go to court” is an unsatisfying answer to race law. In his words, telling opponents of race law to challenge it in court would have been akin to asking Black South Africans under apartheid to do so. His real argument, though, is about doctrine, not powers. Van Heerden, he says, effectively closed the door to challenging racialized legislation, because a measure intended as redress is more or less unassailable, and litigation succeeds only at the margins. The literal analogy fails.
Under apartheid, Parliament was sovereign and courts could not strike down its statutes on substantive grounds, whereas today courts review legislation against a supreme Constitution. His doctrinal point deserves a better answer, and the record is mixed. In Solidarity v Department of Correctional Services (2016), the Constitutional Court set aside the refusals to appoint most of the Coloured applicants and ordered appointment or equivalent pay, because the Department’s targets used national demographics alone and ignored the regional profile the Employment Equity Act then required. But the majority also held that the targets were not quotas and declined to invalidate the plan, and in Barnard the Court upheld the refusal to promote a white officer. In SARIPA (2018), a ministerial policy failed section 9(2), and the seven-judge majority also found it arbitrary and beyond the Minister’s powers. In the cases I have verified, the wins came against implementation decisions and policy rather than against Acts of Parliament, which is consistent with his “margins” point. But Van Heerden is not a rubber stamp: its test demands that a measure be capable of promoting equality, and SARIPA shows that test can bite. Louw, who accepts redress in principle, also urges reconsideration of the Van Heerden rationality test.
The record is mixed: courts have upheld the framework while policing its implementation. That is not the position of the disenfranchised. In Washington, Van Staden went further, telling his audience that the courts will not save the day because their ideological core treats racial engineering as a religious imperative. That is an assertion about judges’ motives, not a reading of the judgments, and the judgments themselves are the better evidence.
The straw man
In the published text of his Washington address, Van Staden says that the South African press and senior politicians have been telling the United States, for about two years, that there are no race laws in South Africa today. In his March 2025 reply to Harber he put it as a position critics hold by implication. That is not what the government’s own statements say. In June 2025 Van Staden himself quoted President Ramaphosa as writing that the post-1994 legislative framework is anchored in the B-BBEE Act and the Employment Equity Act, and, in his account, as telling Parliament that racialized legislation will continue until equality is attained. Even Harber’s much-criticised column concedes that there are a few laws that could arguably be labelled racial, such as the Black Economic Empowerment legislation. The real dispute is not whether the laws exist but whether they are lawful and justified redress. Arguing against a position nobody holds makes the debate harder to settle, and the unconstructive derailment we so often see so much easier.
4. The conflict dynamics
Set the legal debate aside. What does this claim do in a divided society? This is really what attracts me to this debate. Modern conflict management understands that identity conflicts run on high emotions and deep-seated experiences that are often far beyond the reach of cold, calculating numbering exercises, and that they trigger harmful conflict outcomes and consequences far beyond the original topic itself.
Numbers hit home, explanations do not
This is identity conflict territory. A single integer is the ideal vehicle for a threat narrative. Our hopes, dreams and fears are triggered by emotional language, by comparisons, and, quite effectively, by perceptions of unfairness in conflicts. The number is memorable and quotable, and it sheds its “Yes, but…” at every step: methodology page, speech, tweet, global audience. By the end of the chain, “145 Acts attach legal significance to race, some of them dormant” has become “more anti-white laws than apartheid had anti-Black laws.” No one need lie for this to happen.
It is how quantitative claims behave in polarised environments, and understanding the levers and pulleys of identity conflicts makes the entire process and its contents click into place. Regardless of intention, regardless of objective accuracy, the package arrives as a threat, an insult, an unjustified complaint. As case studies show, getting identity conflict arguments wrong, as this debate does in spades, means that not only are people in the out-group not convinced of the in-group’s message, the message and its process of delivery actually entrenches people deeper in their previously held views.
Identity threat on both sides
Edward Azar (1938–1991), the Lebanese-born University of Maryland scholar who developed the theory of protracted social conflict, argued that such conflicts are driven by the denial of basic needs, including security, identity and political access, and not by resources alone. The “145” speaks to one community’s fear of lost standing; reflexive denial speaks to another’s fear that redress will be reversed. Each side’s rhetoric confirms the other’s fear. Whether so designed or not, this is the real mechanism in play. It is not a scholarly debate about numbers.
A legitimacy trap, intended or otherwise
If every factual challenge is read as a confession that critics “approve of these laws,” the position can no longer be corrected by evidence. Defenders fall into the same trap when they treat the entire exercise as bad faith. The mirror charges are visible in print. Harber’s headline calls the claim “grossly dishonest,” while Van Staden calls Harber’s column a hit piece and says those who urge litigation are not misguided but “malicious.” Each reads a moral failing into a disagreement. A debate in which neither side can be wrong has stopped being a debate. This remains the conflict-mismanagement outcome regardless of intent.
Externalization, now operational
On 4 March 2025, Van Staden told BizNews that domestic routes had largely met with resistance and that growing international scrutiny could force the government’s hand. That scrutiny is now concrete. In mid-September 2026, US Secretary of State Marco Rubio announced that Washington will cancel current visas and deny visa applications for foreign individuals deemed responsible for, or complicit in, legislation and state policies permitting uncompensated land seizures, race-based discrimination and incitement of violence against minority groups in South Africa.
According to the ANI report, no specific officials were named, and Washington pointed to land expropriation law, affirmative-action frameworks and violent crime against white farmers as indicators, while the US ambassador’s official account called the policy only the first step in a series of escalatory measures. South Africa’s foreign minister, Ronald Lamola, responded that the policies were formulated to rectify centuries of colonial and apartheid injustice, and invoked the principle of sovereignty. I do not suggest the FMF caused Washington’s policy. An FMF release announcing a US tour, dated 17 September, describes the tour as following the Secretary’s announcement. But the FMF is not a bystander either.
By its own account, FMF leaders met officials at the State Department during the tour and presented a memorandum prepared for an American audience, and a US Deputy Assistant Secretary of State took part in the programme of the White Cross conference at which Van Staden spoke. In his Washington text, Van Staden says Secretary Rubio is not imagining the problem and that the announcement meaningfully moves in the direction he is urging. A separate FMF-published piece by Dr Benfield (Business Day, 7 October; FMF, 14 October) is compliance advice, warning that financial regulators should be able to point to the legal authority for every transformation-related requirement in case Washington’s measure reaches them. I have not seen the FMF call for sanctions on named officials.
But the vocabulary of the race-law debate now underpins a measure with potential personal consequences for South African officials, and this is a crucial conflict driver. A defensive government can recast every domestic critic as an ally of outside pressure (see my forthcoming book), and an arguably legal question has become a geopolitical one that no South African court or Parliament can resolve.
Shrapnel gets us all
As has become par for the course in geopolitical identity conflicts rooted in local settings, the costliest effect is the quietest. The serious reform questions are whether broad-based empowerment instruments reach the poor or a narrow elite, whether redress should carry sunset clauses and outcome reviews, and whether class or deprivation measures should supplement racial criteria. These arguments exist within the redress tradition itself, here and globally, and the FMF’s own present-circumstances proposal is one version of them.
They are drowned out when the debate has two settings: “145 racist laws” or “there are no race laws.” My earlier article pointed at the existence of better models, even on the redress framing of the problem. The Index as an instrument is defensible and, with the improvements below, could become genuinely useful. The Index as it is currently deployed in the public debate is a different matter, and in conflict terms it is doing more harm than good.
It’s imprecision as a measure makes it an effective identity-conflict trigger, setting off defensive, very real reactions in listeners. For part of the white population it confirms, apparently authoritatively, a narrative of victimhood and persecution (a narrative the Washington address makes explicit), while for many who were victims of apartheid it triggers fears of a return to the past. It is a complex argument, and not everyone hears all the notes, in an environment where real or perceived opposition to redress is quickly labelled as a call for the return of apartheid, as racism.
It also sets up a defensive “for us or against us” framework that struggles with nuance or progress. If you have any doubt, read some of the comments that follow the debate on social media. That is an anecdotal observation, but a telling one. The government, the party one would most expect to offer relief, has been drawn into an identity-conflict corner and a face-saving loop that exacerbates an already complex conflict. Any concession or amendment is calculated on an in-group / out-group scale as a victory or defeat, creating further spirals. The government’s own defensiveness is part of that loop; it is not the Index alone that has done this.
The din from onlookers grows, in the hope that external allies will help defeat internal opponents. It is a conflict how-not-to exercise on full display. I am not asserting bad faith. South Africa has a range of seemingly incompatible identities and interest trajectories, and poor strategizing or harmful strategies do not necessarily equate to mala fides. Motive is unprovable and unnecessary to the argument, as modern conflict management has mercifully begun to apply. The effects of the claim as deployed are observable regardless of what its sponsors intend. Blaming and name-calling gets us to where we are in this debate.
5. A better frame
A more credible position, as a conflict management analysis and mandate, whether from the FMF or its critics’ perspective, would:
Separate instruments by function (classification and reporting, preference, numerical target, representivity in public bodies), since each carries different constitutional risk. Van Staden’s own 2024 distinction between public-sector representivity and private-sector requirements is a good place to start.
Tag the roughly 15 originally racial pre-1994 statutes still on the books as a descriptive sub-category on the Index’s front page, with no judgment on enforceability required (consistent with Van Staden’s own wish to limit his discretion), and keep a running tally by era and status that is accurate and hard to argue with.
Does it target a disadvantaged category, and is it capable of promoting equality? Publish the answers.
Redress that cannot show results invites precisely the challenge SARIPA validated.
As I have mentioned earlier, conceptual confusion causes poor results. “Race law,” “redress law” and “unconstitutional law” are different categories, and debate that conflates them cannot produce policy, clarity or progress.
This applies to every side. Emotions are powerful forces in identity conflicts, whatever one thinks of dismissing them as “vibes,” and this is one of those arenas where feelings do not care much about your facts. Learn to persuade effectively and sustainably.
Conclusion
What would make the Index a more useful instrument? If it were weighted by actual burden and showed small effects, I would be less alarmed by its use; if it showed large effects, the FMF’s case would be strengthened. Either way, all sides could use it as a gauge and a tool. If courts consistently declined to review these measures, I would be more sympathetic to the FMF’s frustration. If rigorous evidence showed the main redress instruments failing their own stated purpose, I would conclude that the defenders’ case needs rebuilding rather than defending.
Once the Index is an accurate, non-partisan conflict tool, criticizing its existence or use becomes a difficult challenge from any side. As it is deployed, it creates more heat than light.
This is not about playing nice, or feelings over facts. It is about understanding the conflict currents that flow beneath the apparent facts and the harm the tools now in play are doing. It is about being effective, and getting what you claim to want. It is also not about compromise, but about creatively solving something that has more than one route open to a successful conclusion.
The Index tells us something real. It is a potentially helpful data point in the difficult, even unpleasant conversations we must have, the ones we so studiously ignore, evade or sugar-coat. It should give us one among many places to start, not sell a conclusion, as it is currently being used to do. Improving it could help us all, without costing either side its principles. It is one of South Africa’s all too rare unresolved conflicts where improving the shared tools could genuinely help all sides.
Summary of main sources, references and suggested reading
Our blog at www.conflict-conversations.co.za has a rich variety of articles expanding on specific aspects of the article, and conflict in general.
Andre Vlok can be contacted at andre@conflict1.co.za for any further information. (c) Andre Vlok October 2026