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Supreme Court of Appeals, Bloemfontein

On Friday, 2 December 2016, the Supreme Court of Appeal in Bloemfontein handed down one of the strongest judgements with regards to racial quotas.

This case was in front of the SCA after it was appealed from the  High Court in Cape Town by the Minister of Justice and Constitutional Development and the Chief Master of the High Court of South Africa. The issue at hand was a policy determining the appointment of insolvency practitioners which implemented a racial quota with regards to the appointment of liquidators. This policy was published by the Minister of Justice and Constitutional Development in the Government Gazette of February 2014 and came into effect at the end of March 2014.

This policy forced the Master of the High Court of South Africa to appoint insolvency practitioners according to the determined ratio across all classes of appointment – without any consideration for the wishes of the creditors.

The Supreme Court of Appeal found that this policy and system is unconstitutional and irrational based on the fact that it only gives regard to race and no other factor. The Court declared it to be unlawful and invalid. In the judgment, the SCA stated that while Transformation is still paramount it must still be remembered that “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”.

The SCA was wary of the fact that the policy on the appointment of insolvency practitioners amounts to unqualified and unsuitable people being appointed. This goes against section 9(2) of the Constitution as there is no room for flexibility in the appointment of insolvency practitioners, the Court found.

More needs to be done than merely increase numbers of previously disadvantaged people in the profession to appease Transformation goals.

The judgement can be viewed here.

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Daniël is a Senior Staff Writer at the Rational Standard. He is an alumni of the Democratic Alliance Young Leaders Programme, and a director at Agenda, a South African non-profit aimed at enabling and empowering young South Africans with debating and public speaking skills. Daniël currently works at Hurter Spies Inc, which specialises in public interest and civil rights litigation, while completing his LLM degree in constitutional- and cyber law.

  • Harald Sitta

    Excellent judgement. Which sick brain invented groups A to D ?????

    • That was sick, everyone knows there are only groups A and C here…

    • Vicky

      Hang on a second, this thing still has to go to the CC. And that Court is basically a Gulag.

  • Dirk Scheepers

    Daniël, sal jy ‘n gas op my potgooi wil wees? Kort net Skype en internet verbinding.

    • Daniel Eloff

      Hi Dirk,

      Ek vra om verskoning, ek het nou net eers jou uitnodiging gelees. Ek sal graag met jou gesels! Jy kan my kontak by djeloff@gmail.com.

      Groete,