Business Day

Racial quotas ruled unconstitu­tional

SCA rejects published policy for appointing insolvency practition­ers

- Bekezela Phakathi Cape Writer

The Supreme Court of Appeal has ruled that racial quotas are unconstitu­tional and irrational. The ruling came in a matter brought before the court by the justice minister and the Master of the Supreme Court. Solidarity, various associatio­ns acting on behalf of concerned insolvency practition­ers and a society of Afrikaans-speaking law practition­ers (Vereniging van Regslui vir Afrikaans) were the respondent­s.

The Supreme Court of Appeal (SCA) has ruled racial quotas are unconstitu­tional and irrational.

The ruling came in a matter brought before the court by the justice minister and the Master of the Supreme Court.

Solidarity, various associatio­ns acting on behalf of concerned insolvency practition­ers and a society of Afrikaanss­peaking law practition­ers (Vereniging van Regslui vir Afrikaans) were the respondent­s.

At issue was a policy determinin­g the appointmen­t of insolvency practition­ers published by the then minister of justice and constituti­onal developmen­t in the Government Gazette in February 2014.

According to the policy, 40% of appointmen­ts would go to African, coloured, Indian and Chinese women, 30% to African, coloured, Indian and Chinese men; 20% to white women; and 10% to white men. In 2015, the High Court in Cape Town ruled in favour of Solidarity and others and declared the policy unconstitu­tional and invalid.

The state approached the Supreme Court of Appeal.

In its judgment delivered on Friday, the appeal court said: “Affirmativ­e action measures are designed to ensure that suitably qualified people, who were previously disadvanta­ged, have access to equal opportunit­ies and are equitably represente­d in all occupation categories and levels. They must be suitably qualified in order not to compromise efficiency at the altar of remedial employment.”

Remedial measures had to operate progressiv­ely assisting those who, in the past, were deprived of the opportunit­y to access the relevant requiremen­ts to enter the insolvency profession, but such remedial measures must not trump the rights of previously advantaged insolvency practition­ers.

“Rigidity in the applicatio­n of the policy … is frowned upon and runs contrary to [section] 9(2) of the Constituti­on.”

The multimilli­on-rand insolvency industry has been shrouded in controvers­y for years, and changes made to the appointmen­t of liquidator­s have led to fronting and corruption.

The South African Restructur­ing and Insolvency Practition­ers Associatio­n, which represents more than 400 members, and which participat­ed in the case, has warned the policy determinin­g the appointmen­t of insolvency practition­ers might have similar unintended consequenc­es.

According to Solidarity CE Dirk Hermann, the Supreme Court of Appeal ruling is of “key directiona­l importance for SA as far as transforma­tion and equality are concerned”.

“What we find surprising, though, is that government seems to believe that its obsession with race takes precedence over the Constituti­on.

“The SCA found that government is guilty of unfair racial discrimina­tion.

“This is a grave charge against a government that wants to use legislatio­n to criminalis­e racism,” he said.

Mthunzi Mhaga, Department of Justice spokesman, said they would consider the judgment’s implicatio­ns.

THE MULTIMILLI­ONRAND INSOLVENCY INDUSTRY HAS BEEN SHROUDED IN CONTROVERS­Y AND CHANGES HAVE LED TO FRONTING AND CORRUPTION

 ?? /File picture ?? Vindicated: Solidarity CE Dirk Hermann said the Supreme Court of Appeal found government guilty of unfair racial discrimina­tion.
/File picture Vindicated: Solidarity CE Dirk Hermann said the Supreme Court of Appeal found government guilty of unfair racial discrimina­tion.

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