Minister of Constitutional Development and Another v South African Restructuring and Insolvency Practitioners Association and Others (CCT13/17) [2018] ZACC 20; 2018 (5) SA 349 (CC); 2018 (9) BCLR 1099 (CC) (5 July 2018)

Minister of Constitutional Development and Another v South African Restructuring and Insolvency Practitioners Association and Others (CCT13/17) [2018] ZACC 20; 2018 (5) SA 349 (CC); 2018 (9) BCLR 1099 (CC) (5 July 2018)

The majority held that the Minister’s policy for appointing provisional trustees under the Insolvency Act was invalid as it was not reasonably capable of achieving equality, failed to provide plausible reasons for differentiating between previously disadvantaged persons based on citizenship date, and was arbitrary and irrational. The policy unlawfully fettered the Master’s discretion by mandating rigid appointment ratios and did not adequately protect the interests of creditors. The exclusion of persons who became citizens on or after 27 April 1994 from the benefits of the policy was found to be unjustified and discriminatory. The appeal was dismissed, and the policy declared invalid for...

Citation
[2018] ZACC 20
Parties
Applicant: Minister of Justice and Constitutional Development; Applicant: Chief Master of the High Court of South Africa; Respondent: South African Restructuring and Insolvency Practitioners Association; Respondent: Concerned Insolvency Practitioners Association; Respondent: National Association of Managing Agents; Respondent: Solidarity; Respondent: Vereeniging Van Regslui vir Afrikaans
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
5 July 2018
Case Number
CCT13/17
Procedural Posture
Leave to Appeal / Appeal From Supreme Court of Appeal, Following High Court Review
Outcome
Leave to appeal granted; appeal dismissed with costs, including costs of two counsel where applicable.
Judges
Zondo ACJ, Cameron J, Froneman J, Jafta J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J, Zondi AJ
Legal Topics
Remedial Equality, Van Heerden Test, Ultra Vires, Arbitrariness, Rationality Review, Appointment of Trustees
Constitutional Law Administrative Law Remedial Equality Van Heerden Test Ultra Vires Arbitrariness Rationality Review Appointment of Trustees

Case Brief

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Parties

Minister of Justice and Constitutional Development

Applicant

Chief Master of the High Court of South Africa

Applicant

South African Restructuring and Insolvency Practitioners Association

Respondent

Concerned Insolvency Practitioners Association

Respondent

National Association of Managing Agents

Respondent

Solidarity

Respondent

Vereeniging Van Regslui vir Afrikaans

Respondent

Procedural Posture

Leave to Appeal / Appeal From Supreme Court of Appeal, Following High Court Review

Legal Issues

  1. 1 Whether the Minister's policy for appointing provisional trustees under the Insolvency Act is ultra vires and unlawfully fetters the Master’s discretion.
  2. 2 Whether the policy is arbitrary, irrational, or inconsistent with section 9(2) of the Constitution.
  3. 3 Whether the policy unlawfully excludes certain previously disadvantaged persons based on citizenship date.

Ratio Decidendi

The majority held that the Minister’s policy for appointing provisional trustees under the Insolvency Act was invalid as it was not reasonably capable of achieving equality, failed to provide plausible reasons for differentiating between previously disadvantaged persons based on citizenship date, and was arbitrary and irrational. The policy unlawfully fettered the Master’s discretion by mandating rigid appointment ratios and did not adequately protect the interests of creditors. The exclusion of persons who became citizens on or after 27 April 1994 from the benefits of the policy was found to be unjustified and discriminatory. The appeal was dismissed, and the policy declared invalid for...

Court Disposition

Leave to appeal granted; appeal dismissed with costs, including costs of two counsel where applicable.

Orders

  • Leave to appeal is granted.
  • The appeal is dismissed with costs, including the costs of two counsel where applicable.