The High Court in Pretoria’s ruling setting aside the decision of the Minister of Trade, Industry and Competition, Parks Tau, to promulgate the Legal Sector Code of Good Practice sends an important message about the exercise of ministerial power.
The Freedom Front Plus (VF Plus) welcomes the principle that emerges from the judgment, namely that a minister cannot simply accept and promulgate a sectoral Black Economic Empowerment code (BEE code) without properly weighing the statutory requirements and the justification for drastic deviations from the general BEE codes.
The case is not about the court declaring BEE or transformation as such unlawful. The gist of the matter is that the Minister has to properly exercise his own independent statutory discretion.
This is particularly important because this BEE code for the legal sector prescribed drastic requirements for, among other things, ownership, management, skills development and procurement in the legal profession.
So, the judgment ought to serve as a warning to government that policy cannot be implemented through regulation without proper, independent and rational decision-making.
The Freedom Front Plus will keep critically testing legislation and policy based on race-based economic requirements against the principles of equality, economic freedom, property rights, competition and actual economic empowerment.
South Africa needs an economic policy that expands opportunities, allows businesses to grow and creates jobs – not a system that hampers economic participation through increasing bureaucratic and race-based requirements.
