Policy on the appointment of liquidators unconstitutional - Solidarity
The Western Cape High Court in Cape Town yesterday ruled that the new policy on the appointment of provisional liquidators amounts to a quota system and is therefore unconstitutional. Solidarity participated as an applicant in the Concerned Insolvency Practitioners Association's (Cipa) lawsuit against the Minister of Justice and Constitutional Development over this policy.
The state argues the new appointment policy aims to promote the representivity of previously disadvantaged persons in the insolvency practitioners' profession. Implementation would have meant that 40% of appointments would be allocated to African, Coloured, Indian or Chinese females; 30% to African, Coloured, Indian and Chinese males; 20% to white females and 10% to white males.
Adv. Dirk Groenewald, Head of Solidarity's Centre for Fair Labour Practices, says the ruling confirms that the implementation of race-based quotas is not a legitimate affirmative action criterion. "The judgment recognises the provisions of the Constitution in terms of which the implementation of quotas, among others, is rohibited. In addition, the ruling also confirms that the new policy would have deprived employees of their right to nominate provisional liquidators based on their competence, expertise and experience as race would have been the only deciding factor," Groenewald says.
The judgment relied strongly on the Constitutional Court judgment in the Renate Barnard case that ruled the implementation of quotas in any form of affirmative action as unconstitutional. "Yesterday's ruling once more provides legal grounds for many of Solidarity's other affirmative action lawsuits. This includes our case against the South African Police Service over its new ranking system," Groenewald said. This case resumes in the Johannesburg Labour Court on 27 January.
Statement issued by Dirk Groenewald, Head: Centre for Fair Labour Practices, Solidarity, January 14 2015
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