The Supreme Court of Appeal has ruled that Black Economic Employment practices can’t simply be about “naked preference” and “pushing up the numbers”.<\/p>\n
The case in question revolved around a new\u00a0policy that sought to regulate the appointment of insolvency practitioners in South Africa by introducing new “transformation requirements”.<\/p>\n
The policy gave the Master of the High Court the power to appoint an insolvency practitioner regarded as a \u2018previously disadvantaged individual\u2019 (as defined in the policy) to act as a co-trustee alongside an experienced practitioner so that he or she could learn from the experienced trustee in order to gain sufficient experience in the industry.<\/p>\n
However, the High Court (and later the SCA) agreed that the policy “needed to do more than just increase the numbers<\/strong>“.<\/p>\n Speaking on the case, Mongezi Mpahlwa, senior associate\u00a0at Cliffe Dekker Hofmeyr noted that affirmative action measures were first introduced in South Africa to reconcile the injustices of the past.<\/p>\n “Although policies have been implemented for the achievement of equality for persons previously disadvantaged, at what point do these policies unjustifiably infringe the rights of persons affected by them?”<\/p>\n <\/p>\n The SCA noted that regulations created by BEE policy intended to address past discrimination “must operate in a progressive manner assisting those who, in the past, were deprived, in one way or another, of opportunity to practice in the insolvency profession.”<\/p>\n In addition, they cannot be “arbitrary”, “capricious” or “display naked preference”, but must actually aim to assist the individuals involved and redress the issues of the past, as per a similar 2004 judgement.<\/p>\n Mpahlwa believes this new judgement will call for an intensification of discussions surrounding the positives and shortcomings of current affirmative action policies.<\/p>\n “As can be seen from the judgment, such policies should provide clear deliverable timelines or targets to determine whether they are likely to achieve the intended objectives within a clearly defined period. Policy makers should look beyond increasing the numbers,” he said.<\/p>\n The Minister of Justice\u00a0has applied for leave to appeal the case in the Constitutional Court.<\/p>\n
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