Failed promises: how SA's anti-racism laws fall short in 2026

When a former FlySafair employee's racist remarks went viral in early 2026, it exposed the persistent gap between South Africa's ambitious anti-discrimination laws and their real-world implementation. Advocate Tseliso Thipanyane examines why, despite constitutional protections and specialised legislation, racism continues to thrive in South African society - and what urgent steps are needed to address these systemic failures

AT THE start of 2026, South Africa was confronted with a painful reminder of persistent racism when a former FlySafair airline employee made derogatory remarks against the Indian community and the Taj Mahal.

The incident, widely circulated on social media, highlighted the enduring challenges of racial prejudice in society. Despite constitutional protections and anti-discrimination laws, racism continues to devastate communities more than 30 years into democracy.

The episode underscores the gap between legal frameworks and their effective implementation, showing that laws and institutions have not been as impactful as envisioned.

Anti-racist laws and institutions

South Africa’s democratic order is founded on non-racialism, human dignity, and equality. To safeguard these values, the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) was enacted in 2000 and operationalised in 2003.

Its provisions amongst others, prohibit unfair discrimination, ban propaganda promoting racial superiority or inferiority, and provide for enforcement mechanisms such as Equality Courts and the South African Human Rights Commission (SAHRC).

In theory, PEPUDA together with the enforcement institutions should play an effective role in deterring racist conduct and unfair discrimination in all its forms. In practice, however, the FlySafair incident demonstrates that individuals can still act with blatant disregard for constitutional values, reflecting systemic weaknesses in the enforcement of PEPUDA.

The persistence of racism is attributed to poor and inadequate implementation of PEPUDA and the underusage and the ineffectiveness of its associated enforcement bodies.

Implementation failures and challenges

A critical shortcoming lies in Chapter Five of PEPUDA, which has never been brought into operation. This chapter is meant to provide for the promotion of PEPUDA in both public and private sectors and in this regard, provides that the state should develop and implement programmes to popularise the Act and take necessary and appropriate measures to promote equality and discourage anti-racist conduct.

The chapter also provided for the role of the business sector, non-governmental organisations, and even traditional institutions to promote equality in their activities. The chapter also provides for specific role for the SAHRC to monitor and assess the extent to which acts unfair discrimination persist in the county, especially on grounds of race, gender, and disabilities, and to advise on how best to address these challenges. This is over and above the mandate of the SAHRC to take matters of unfair discrimination to Equality Courts in its own name or on behalf of victims.

More significantly, the chapter asserts the duty and responsibility of the state and all persons in the country to promote equality and eliminate discrimination on grounds of race, gender, and disability. The failure to activate this chapter has deprived the country of effective interventions against racism and its devastating effects. It has also affected the desired public awareness of the PEPUDA and the usage of the Equality Courts.

This underuse is alarming given South Africa’s elevated levels of racism, xenophobia, and gender inequality and the general challenges many South Africans have in accessing courts of law. In addition to the above, the Equality Review Committee, tasked with overseeing PEPUDA’s implementation, has been inactive since 2016 following the departure of the then SAHRC chairperson. Both the executive and legislative branches of government have not done enough to address this failure.

The SAHRC, despite its mandated role in PEPUDA, has also not used its powers and influence to address this failure. Civil society organisations, that often litigate against the state on several compliance issues, have also not taken sufficient steps to ensure full implementation of PEPUDA and chapter five.

Hate crimes and hate speech act

Another challenge in the legislative and institutional measures to address racism is the failure to bring into operation the Prevention and Combating of Hate Crimes and Hate Speech Act designed to address rising incidences of hate speech and hate crimes. This legislation was passed in May 2024. This delay undermines much needed efforts to combat racial prejudice.

Broader implications

The persistence of racism undermines democracy, erodes social cohesion, and threatens national unity. The racism incident is not isolated but is symptomatic of broader societal challenges. The gap between constitutional ideals and lived realities demonstrates that legal frameworks alone are insufficient without effective enforcement, proactive measures, and societal commitment.

A way forward

To address these challenges, several steps are critical:

- Full implementation of PEPUDA, including Chapter Five, to ensure proactive equality promotion measures by public and private bodies.

- Operationalisation of the Hate Crimes and Hate Speech Act, to strengthen legal responses to racist conduct.

- Revitalisation of enforcement mechanisms, including Equality Courts and the SAHRC, ensuring they are adequately resourced and empowered.

- Civil society engagement, to hold government accountable and push for full implementation of anti-racist legislation.

- Public awareness and education, to foster a culture of equality and respect for human dignity.

Conclusion

The racism incident at the dawn of 2026 highlights the stubborn persistence of racism in South Africa. Despite constitutional protections and anti-discrimination laws, weak implementation has allowed racial prejudice to thrive. The failure to operationalise key provisions of PEPUDA and the Hate Crimes and Hate Speech Act reflects institutional shortcomings. Moving forward, urgent action is required to strengthen enforcement, activate dormant legislative provisions, and mobilise civil society. Only through decisive measures can South Africa hope to eradicate racism and realise the constitutional vision and values of equality, dignity, and national unity.

Advocate Thipanyane is a member of the Active Citizens Movement but writes in his personal capacity.

** The views expressed do not necessarily reflect the views of IOL or Independent Media. 

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