OPINION | Free speech: Why we must debate if SA is the world’s most race-regulated country - News24

Nicole Fritz labelled Solidarity’s banner “race-baiting” and “historically illiterate”. But is it true that South Africa is “the most race-regulated country in the world”, or not? This question should be clearly considered by BEE supporters and critics alike, writes Gabriel Crouse.

Nicole Fritz, director of the Campaign for Free Expression, recently wrote that trade union Solidarity had a right to free expression after one of its banners was pulled down by Joburg city officials. Although she sincerely rejects Solidarity’s message, she defended the it’s right to be heard.

Fritz deserves praise for standing up for something she disagrees with – something South African free speech advocates seldom do, but should do more often.

“The right to speak, even foolishly or irresponsibly, ensures that no one must seek the shelter of the powerful to have a voice,” she wrote, and amen to that.

In the spirit of public debate that Fritz promotes, it is important to question whether her premise was correct. According to Fritz, the banner’s “content itself” was “historically illiterate and deeply cynical”. Is that true?

Is it “historically illiterate” to claim that South Africa is the most race-regulated country in the world?

Regulation 9(10) of EEA
Regulation 9(10) of the Employment Equity Act (EEA) came into effect in September 2025. It states:

A designated employer must avoid perpetuating the over-representation of any group if their representation exceeds the applicable [Economically Active Population] EAP in a particular occupational level.

The phrase “any group” refers, inter alia, to the official eight major race-gender pairs referred to in the EEA forms, which must be filled out by all +-7.5 million workers that fall under “designated employers”.

In other words, the majority of formally employed workers fall under this new rule.

But what does this mean? The EAP of black women is 37.5%. If 40% of a particular staff level, for example senior managers, are black women then there is “over-representation” of that group. The employer “must avoid perpetuating” that “over-representation” under Regulation 9(10).

How this will play out is not precisely clear.

In 2014, the Constitutional Court ruled in favour of the “Barnard Principle” in the public sector, where similar regulations had already been in place for decades. The judgment allowed a moratorium on hiring by race-gender pair to avoid perpetuating over-representation.

The Constitutional Court was also explicit that the Barnard Principle could be used against all eight race-gender pairs, including black women.

So, where does that place South Africa internationally among race-regulated countries?

In the late 1990s, when race regulation rules first came into effect in the public sector, SA could be compared to some bloodline or “ethnic” regulations in the Balkans, India, Lebanon, Singapore, and other countries with rigid affirmative action systems in their public sectors.

However, under the newly passed Employment Equity Regulations, 2025, which includes Regulation 9(10), which now covers most of the private sector as well, South Africa is no longer among the most competitive open democracies; it is head and shoulders ahead of the rest as the most race-regulated country in the world, in my view.

BEE
The cold, factual claim is that BEE has become so extreme under Regulation 9(10) that South Africa is now the most race-regulated country in the world. This is separate from any claim about whether BEE is currently good or bad for the country.

There are vastly different value judgements about BEE in South Africa today, which is normal in a democracy, where people should still converge on a common understanding of the facts.

Labour Minister Nomakhosazana Meth, for example, thinks ramping up race regulations in 2025 was a good thing. A recent News24 poll indicated roughly a third (36%) want BEE to end. That points to a massive difference in values.

But can those who want BEE to end, and those who want to double down on BEE, agree about anything? Yes. Critics and supporters of BEE should all agree on some basic facts, like whether South Africa is now the most race-regulated country on earth, or not.

Everyone agrees, for example, that there was increased debate about BEE in 2025. Some say this was a good thing, others bemoan it, but the volume of BEE has increased, and that’s a fact all sides can agree on.

Likewise, two months ago, I told Solidarity that since the promulgation of Regulation 9(10), South Africa has become the most race-regulated country in the world, and I still stand by that claim, because no open democracy has any race regulation as extensive as Regulation 9(10).

Fritz, by contrast, wrote that the banner’s “content itself”, which is the same content I said to Solidarity verbatim, amounts to an “attempt to draw equivalence between apartheid” and “today’s constitutionally sanctioned redress measures”.

Is that true? If Fritz were right, then that would mean anytime someone repeats the “content itself” of that billboard they would be equating BEE with apartheid.

But Fritz is wrong. Meth could have sponsored a banner with the exact same content because the words on the banner drew no equivalence to apartheid whatsoever.

All that Minister Meth would have to believe is that South Africa is “the most race-regulated country in the world”, and that this is worth advertising, and that people should feel “welcome”. That illustrates the plain fact that the “content itself” is morally neutral: both BEE lovers and BEE haters can agree on it, because it is just a claim about facts (not values).

This is important to point out, because while Fritz is right that one threat to open debate comes from officials abusing their powers, another challenge comes from the ignorance of facts.

Everyone (from Meth to Solidarity) should be allowed to say that South Africa is the most race-regulated country on earth without being told they are drawing an equivalence with apartheid. If Fritz, or anyone, disagrees with the claim about South Africa’s rank in international race regulations, then they should do so with evidence and show which other country is even more race-regulated today than South Africa, rather than project a false equivalence to apartheid.

That does not mean Solidarity is beyond criticism for its broader campaign. It repeatedly claimed (falsely) that only “minorities” are directly targeted by the race-regulation system. But the Constitutional Court has clearly ruled that black people can also be directly harmed by race regulations, and harm to black people should not be ignored by Solidarity, or anyone.

If anything makes the billboard’s content true, it is that regulation.

Whether Regulation 9(10) is fair or unfair, it should not be ignored or passed over. If it makes South Africa the most race-regulated country on earth, then every South African deserves to know that.

Gabriel Crouse is the executive director of IRR Legal, and a Fellow at the IRR.

https://www.news24.com/opinions/columnists/opinion-free-speech-why-we-must-debate-if-sa-is-the-worlds-most-race-regulated-country-20251208-0821