There is a court case being heard by the Constitutional Court today.
The Constitutional Court is on Thursday expected to hear a case brought by trade union Solidarity and the South African Restructuring and Insolvency Practitioners' Association (Saripa) challenging the constitutionality of BEE and affirmative action. The court case relates to the abolition of the Department of Justice's appointment policy insofar as liquidators are concerned, according to a statement issued by both Solidarity and Saripa
I have mixed views on this. If the ConCourt finds that BEE is not constitutional then I am without a job. But I recognise that this kind of challenge is very overdue. I have written about BEE and the constitution before and I am quite sure that there are strong arguments that the policy itself is not constitutional. It seems very obvious to me that the drafters knew that as well - that's why they state in the codes that these codes are mandatory for all organs of state and public entities (paragraph 3 of statement 000). It then spreads its reach saying that if you want to produce a scorecard because you do business with those entities or entities that do business with those state entities then this is the way to go.
In effect this clause makes the process voluntary. However I think the problem isn't so much that the policy exists - the problem lies in the unreasonability of the codes and the way they are being foisted upon us. SOE's are extraordinarily arbitrary when it comes to what they want. We know that there has been major looting in the name of BEE. dud miyeni (perhaps deadduck miyeni would be a better name) was more than happy to steal from SAA in the name of transformation, Eskom did the same with trillian and the atpugs.
I don't think that the country would survive without the policy but the policy will not survive with these codes and the idiots at the dti who write them.
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