Nomfundo Ramalekana

While s 15(3) of the Employment Equity Act expressly prohibits the use of quotas as affirmative action measures, it is not clear whether quotas fall outside the scope of permissible affirmative action measures under s 9(2) of the Constitution. In the 2015 High Court judgment, South African Restructuring and Insolvency Practitioners Association v Minister of Justice and Constitutional Development & Others (‘SARIPA’), the court found that quotas violate the rights to equality and dignity and are thus impermissible under s 9(2). In 2016, the Supreme Court of Appeal affirmed the High Court’s judgment, reasoning that quotas were arbitrary and amounted to caprice and naked preference. When the matter reached the Constitutional Court, Jafta J’s majority failed to engage with this question. In contrast, in his dissenting opinion, Madlanga J showed some scepticism towards the lower courts’ approach to quotas but did not make a definitive finding. Sharing the scepticism in Madlanga J’s dissen...