CCT13/17

[2108] ZACC 20

2018 (5) SA 349 (CC)

2018 (9) BCLR 1099 (CC)

Jafta J Majority judgment

Madlanga J separate judgment

2 November 2017

5 July 2018

http://hdl.handle.net/20.500.12144/34554

Application for leave to appeal against a judgment and order of the SCA: Minister of Justice and Constitutional Development and Another v South African Restructuring and Insolvency Practitioners Association and Others (693/15) [2016] ZASCA 196; [2017] 1 All SA 331 (SCA); 2017 (3) SA 95 (SCA) (2 December 2016). The case was previously heard in the Cape Town High Court: South African Restructuring And Insolvency Practitioners Association v Minister of Justice And Constitutional Development and Others; InRe: Concerned Insolvency Practitioners Association NPC and Others v Minister of Justice And Constitutional Development and Others (4314/2014, 17327/2014) [2015] ZAWCHC 1; [2015] 1 All SA 589 (WCC); 2015 (2) SA 430 (WCC); 2015 (4) BCLR 447 (WCC); [2015] 4 BLLR 329 (WCC) (13 January 2015).

Section 9(2) of the Constitution — remedial and restitutionary equality — Van Heerden test — arbitrariness and rationality as separate requirements — rule of law Van Heerden test — reasonably capable of attaining desired outcome of transformation of the insolvency industry — facts on record do not show policy is reasonably likely to achieve equality Insolvency Act 24 of 1936 — section 158 — policy for the appointment of provisional trustees — ultra vires — displacement of the Master’s discretion Insolvency Act 24 of 1936 — section 158 — policy for the appointment of provisional trustees — arbitrary — exclusion of citizens born on and after 27 April 1994 — no reasons justifying exclusion Insolvency Act 24 of 1936 — section 158 — policy for the appointment of provisional trustees — irrational — failure to show policy is reasonably capable of achieving equality