When Apartheid ended, the political paradigm in South Africa changed completely, especially as it related to liberals. Liberals participated in the negotiations for a post-Apartheid constitution during a time that seemed like a moment of liberal victory, but soon thereafter and to this day liberals have had to respond to renewed government attacks on liberal institutions.
Bloom (1994, 5) set out the liberal position during the constitutional negotiations that brought South Africa out of Apartheid:
“One of the key issues in the interim Bill of Rights that has been tabled is the appropriate balance between the principles of liberty and equality. The true liberal understanding is that liberty is the more important of these principles and is consistent only with equality before the law and equality of opportunity. This is a battle that dare not be lost. Equality of result, of outcome, of condition, is a tyranny that must be ardently fought not only in the interests of a free society but also for a dynamic, prosperous economy.”
Bloom notes that the institutions of “property, family, local community, religion and voluntary association” necessarily involve hierarchy and kinds of inequality but are imperative in a free society because they “are the social and cultural walls that provide checks and limits” against the overthrow of the liberal-democratic political order.
Bloom said that affirmative action is “a woolly term” that eventually develops “into group-based schemes inimical to individual merit.” Institutions then “become hostage to spurious claims as to whether they are fully ‘representative’” (1994, 5). Paul Pereira, commenting on Bloom’s speech, said that discussions about affirmative action, whether a program is justified or not, often ignore the fact that the economic wealth pie is not fixed but can grow (1994, 63).
Today, indeed, it is constantly questioned whether the private sector, judiciary, the press, etc., have been adequately “transformed.” Even the Democratic Alliance itself, the successor to the non-slideaway Democratic Party, today makes much ado over its own racial makeup, with spokesperson Phumzile van Damme recently proudly proclaiming on Twitter that fewer than half of the Alliance’s parliamentary candidates are white (Leng 2019; Cele and Khumalo 2019). The Democratic Party, the final embodiment of the Progressive Party founded in 1959, in contrast, opposed the very principle of racial discrimination, especially in politics and representative institutions.
Bloom said that liberals were concerned about “protecting the realm of the social from being swallowed up by the political” by way of centralized power. Some social or private institutions require reform, but liberals must nevertheless protect them “against all forms of unwarranted state intrusions.” Bloom spoke of a kind of judicial activism that South Africans may come to regret, if the law were allowed “to intrude into the delicacy of private social arrangements” (1994, 6).
Liberals and the new Constitution
Despite the fact that liberals had seemed not to make any significant political gains over the course of the Apartheid era, especially nearer Apartheid’s end, liberal values ended up being adopted as constitutional content in the interim (1993) and current (1996) Constitution (Hughes 1994, vii). Bloom however argued that liberalism was “accepted in form but not wholly in content in the current negotiations” (1994, 4). The constitutional content included the rule of law over arbitrary discretion, the recognition of legal equality, the protection of civil liberties and property rights, and a government with clear lines of separation between the executive, legislature, and judiciary.
In 1993, the Tricameral Parliament, with its dominant white chamber, enacted the interim Constitution, which would apply after the first broad-based democratic election in April 1994. The interim Constitution put an end to parliamentary sovereignty and, for the first time, gave South Africa a justiciable Bill of Rights. In 1994, the first democratic Parliament was elected, with the African National Congress scoring an overwhelming victory and ending 46 years of continuous white National Party rule. This Parliament, sitting as the Constitutional Assembly, would be responsible for formulating the current Constitution, which came into operation in February 1997. The current Constitution remains the Constitution of South Africa today, and includes a Bill of Rights in its chapter 2.
Liberals were not completely satisfied with the Constitution, however. Both the Institute of Race Relations and the Free Market Foundation made submissions on two crucial shortcomings in the Bill of Rights. Firstly, both organizations regarded it as a mistake to make the Bill of Rights apply horizontally and vertically rather than simply vertically. Horizontal application means the rights—including socio-economic rights—were not only enforceable against government but also enforceable between private persons inter se. For instance, this might mean that farmers would be constitutionally required to provide education (which is a constitutional right) to the children of farmworkers, or at least allow the government to construct a school on their farm. Secondly, the FMF and IRR challenged the inclusion of socio-economic rights—i.e., not only first-generational, or liberty, rights—in the Bill of Rights. To the IRR, including socio-economic rights and horizontal application in the Bill of Rights could result in government using the Constitution to justify illiberal interventions in the economy (Kane-Berman 2019c). The FMF, in particular, argued that the State did not have adequate resources to give effect to these rights, and that the courts would be required to adjudicate matters properly within the purview of the legislature. The FMF also pointed out that the rights as worded were vague, and that socio-economic rights were unprecedented in South African law, meaning the courts would have to develop a new jurisprudence to accommodate them (Free Market Foundation 1996, 2–3).
The years immediately after Apartheid ended can be described as South Africa’s brief experiment with classical liberalism. Privatization, deregulation, and respect for property rights were briefly considered by the new government to be key policy objectives. Tshepo Madlingozi (2006) writes:
“[The Growth, Employment, and Redistribution (GEAR) policy] is essentially a conservative policy that affirms the virtues of a neo-liberal free-market economic system. This programme promises the following: cutting down on government spending; keeping inflation in the single digits; encouraging ‘wage restraint’; speeding up privatisation of government assets; tax breaks for corporate capital; and the creation of a flexible labour market. Although criticised severely by ANC alliance partners, GEAR was meant to be the vehicle with which to transform the legacy of inequality, poverty and stagnant growth.” (Madlingozi 2006, 9–10)
With the end of the Apartheid era, then, many liberals believed their work to have been completed, at least until a new status quo came into focus (Kane-Berman 2017, x). The J. H. Hofmeyr Memorial Trust, an organization tasked with keeping alive the spirit and values of Jan Hofmeyr, decided to close down shortly after the current Constitution was adopted. It was thought that the Constitution adequately enshrined the liberal values Hofmeyr stood for (Deane 2001, 63).
O’Malley writes that the movement toward economic liberalism had been successful in the years leading up to 1994, and for two reasons: many communist governments had recently fallen, discrediting socialism; second, there was a “vociferous free-marketeer and radical capitalism grouping in South Africa.” This group included the Free Market Foundation and Groundswell (O’Malley 1994, 39), a grassroots movement spawned by Leon Louw and Frances Kendall’s book South Africa: The Solution to promote direct democracy and the Swiss canton system as an alternative for South Africa (Sun 1987).