Racial quotas ‘unconstitutional, irrational’ says SA’s supreme court

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12 March 2009. South Africa. Gauteng. Johannesburg. Members of the Afriforum Youth protested outside the Department of Labour against Affirmative action.

Racial quotas in South Africa is not only unconstitutional, it is also highly irrational, the country’s Supreme Court of Appeal (SCA) has ruled.

In one of the strongest judgments to date on racial quotas, the SCA found racial quotas are unconstitutional and irrational.

The ruling came in a matter brought before the court by South Africa’s Minister of Justice and the Master of the Supreme Court. Trade union 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. At issue was a policy determining the appointment of insolvency practitioners published by the Minister of Justice and Constitutional Development in the Government Gazette in February 2014.

According to Solidarity Chief Executive Dirk Hermann, this judgment is of key directional importance for South Africa as far as transformation and equality are concerned. Yet again, government’s racial policy took a beating. “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,” Hermann said.

In their summary, Judges Mathopo, Mpati, Swain and Van der Merwe found that this matter deals with the ambit of the test for equality, which suggests that the court, too, considers this judgment to be directional.

In terms of the policy on the appointment of insolvency practitioners, appointments have to be made strictly in accordance with a racial quota system. For this purpose, four categories have been determined, namely (A) African, Coloured, Indian and Chinese females who became South African citizens before 27 April 1994; (B) African, Coloured, Indian and Chinese males who became South African citizens before 27 April 1994; (C) White females who became South African citizens before 27 April 1994; and (D) African, Coloured, Indian and Chinese females and males, as well as White females, who became South African citizens on or after 27 April 1994, and White males who are South African citizens. When appointing practitioners, the Master of the High Court must follow the following ratio: four from Category A; three from Category B; two from Category C; and one from Category D.

The Supreme Court of Appeal found this policy and system to be unconstitutional and irrational, declaring it unlawful and invalid. The court issued a cost order against the Minister of Justice and the Master of the High Court.

In their judgment, the Supreme Court of Appeal Judges write that remedial measures must operate in a progressive manner assisting those who, in the past, were deprived of the opportunity. However, such measures must not unduly invade the dignity of those affected by them. The Supreme Court Judges found that remedial measures may not display naked preference. The judges held that the implementation of a racial quota system is one such form of naked preference.

The Supreme Court of Appeal found there was no flexibility in the policy ruling the appointment of insolvency practitioners. Such rigidity is frowned upon and runs contrary to section 9(2) of the Constitution. The Constitutional Court has already prohibited such rigidity.

The Supreme Court of Appeal also found that, in its current format, the appointment policy could result in a person who is unsuitable and unqualified for such an appointment being appointed as liquidator.

According to Hermann this policy clearly highlights the absurdity of government’s racial classification system. There is no regard for skills; only race is taken into account. In the case of this appointment policy race, and not insolvency matters, is what counts.

A trade union, such as Solidarity, that wants to ensure that the interests of its members are best looked after in insolvency disputes has a major dilemma when race is the predominant consideration when appointing a liquidator. People’s lives are affected by a government’s obsession with race.

The court also referred to the absurdity of grouping white males together with all those who became citizens after 1994. In reality, it will lead to the disadvantaging of young people of all race groups who were born after 1994.

“Government’s policy is not de-racialising South Africa; rather it is intensifying a policy of racial classification that is applied in a rigid manner,” Hermann concluded.

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