Michael Masutha
Michael Masutha

The justice minister’s transformation appointment policy for insolvency practitioners in estates was irrational, discriminatory and unlikely to achieve equality, the Constitutional Court ruled on Thursday.

Justice and Constitutional Development Minister Michael Masutha, his department and the chief master of the High Court had appealed against a Supreme Court of Appeal ruling that the policy, which was implemented in 2014, was irrational.

Trade union Solidarity had earlier applied in the High Court in Cape Town to have the policy declared unconstitutional. That court found it failed to meet the requirements of "restitutionary measure" under the Constitution and that it was "irrational".

Insolvency practitioners were grouped in race categories and appointed alphabetically.

In a majority judgment, the Constitutional Court said the policy in certain cases also removed the master of the High Court’s discretion to appoint insolvency practitioners.

The court found that because white men grouped in so-called CategoryD were in the majority, most appointments would go to them. "The majority found that appointing practitioners in alphabetical order from CategoryD is unlikely to achieve equality in the future. Doing so only entrenches the status quo," the judgment reads.

Solidarity’s head of labour law, Anton van der Bijl, said the ruling confirmed the union’s argument that the policy constituted "naked racism".

The union said it was disappointing that there were increased cases of racial segregation in the country.

"This policy, which was aimed at promoting race and gender representativity in this profession, amounted to inadmissible and unconstitutional quotas, which the Constitution prohibited," Van der Bijl said.

The policy also categorised employees who became citizens on or before April 27 1994, with the ruling reading it punished young practitioners who were born on or after that date.

The judges said the arbitrariness of the policy was demonstrated by the minister’s failure to provide reasons justifying why disadvantaged people should be treated differently due to the date on which they became citizens. "This undermines in a serious manner the progressive realisation of equality which the other parts of the policy are designed to achieve," the ruling reads.