Sakeliga in Cape court against racial quotas and racial classification

19 February 2020

Racial quotas and racial classification as applied in the Western Cape Legal Practice Council are unconstitutional. This is argued by the business organisation Sakeliga as amicus curiae in the Cape Supreme Court and Equality Court on 18 and 19 February.

Sakeliga also argues that should the Court find that such racial classification is not unconstitutional, there should at least be objective standards and acceptable processes for racial classification, based on which persons should be able to appeal against their racial classification.

The case stems from an incident early in 2019 when Adv NcumisaMayosi received third most votes in an election of the Western Cape Legal Practice Council but was not allowed to take up her position because of a quota system. The quota provides for only one black female advocate among the 10 positions in the Legal Practice Council. According to the Legal Practice Council, Adv Mayosi would have exceeded this quota and she therefore had to be turned away.

Following the quota decision, the Cape Bar Council brought applications against, inter alia, the minister of justice and corrective services and the Legal Practice Council in the Cape Supreme Court and the Equality Court. In these applications the Cape Bar Council requests the court to declare the relevant directives of the Legal Practice Council to be unconstitutional, or alternatively to be unfair discrimination.

The quotas are set out in regulation 4(3) and (4) of a schedule in terms of section 109(1)(a) of the Legal Practice Act, No 28 of 2014.

In his affidavit, Piet le Roux, CEO of Sakeliga, in conclusion argues as follows: “Having outlined here the complications that arise when a state imposes race classification, it appears that it is more prudent for a state to avoid this quagmire altogether. However, should a state nevertheless deem it necessary for whatever reason to do so, it is as a matter of justice and morality obliged to provide for proper administration in matters relating to classification, and therefore attempt the project of clarifying the objective criteria and defining a process by which decisions with reference to such criteria are made. In South Africa’s case, it is also so obliged by the Constitution’s requirements for administrative justice.

We therefore submit to the court that racial quotas like is the case with the LPC in this matter are unconstitutional; and that even if they were found to be constitutional, they would only be so if objective standards and acceptable processes were put in place by the state, governing how classifications were to be made and by whom, how they were to be disclosed to affected persons, and how they were to be reviewed when a party classified or affected by another’s classification feels for some reason aggrieved.”

Issued by Piet le Roux, CEO: Sakeliga, 19 February 2020