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ConCourt to rule on constitutionality of affirmative action, BEE

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ConCourt to rule on constitutionality of affirmative action, BEE

3rd November 2017

By: News24Wire

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Justice Minister Michael Masutha's legal representative argued in the Constitutional Court on Thursday that the Department of Justice's racial quota system ensures access to work for black people and women.

Trade union Solidarity and the South African Restructuring and Insolvency Practitioners' Association (Saripa) do not agree.

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Head of Solidarity's Centre for Fair Labour Practices Anton van der Bijl said the hearing comes after the Western Cape High Court and the Supreme Court of Appeal ruled in favour of Solidarity and Saripa following the abolition of the Department of Justice's appointment policy insofar as liquidators are concerned.

Advocate Renata Williams SC faced a full bench of justices on Thursday in her defence of the validity of the policy for the appointment of liquidators.

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In her argument, Williams said the policy guaranteed transformation through the appointment of women and black people. "What lies at the heart of this policy is the transformation of the insolvency profession... There is access to work. People are not going to be forced out of work because they don't have the support of the creditors," she said. Williams said the policy was "aimed at addressing historical imbalances".

Desires of creditors not taken into account

The appeals court in December 2016 found that the policy was unlawful and invalid.

A 2001 version of the policy made provision for previously disadvantaged people to be appointed as co-provisional trustees in every estate.

The new policy drawn up for implementation in 2014 changed the structuring of appointments, creating four categories for those with the relevant qualifications and experience.

Category A represented African, Coloured, Indian and Chinese females who became South African citizens before April 27, 1994; B represented their male equivalents; C represented white females who were South African citizens before April 27, 1994, and D represented anyone who became a South African citizen on or after April 27, 1994, as well as white males.

These individuals would be appointed according to a ratio of A:4 B:3, C:2, D:1. The names would be listed alphabetically, and it is in this order that they would be selected.

The Master of the High Court of South Africa was then obliged to appoint insolvency practitioners according to this ratio across all classes of appointment, and was to no longer take into account the desires of creditors.

Judgment was reserved.

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