OPINION

FState High Court sets aside Magistrates Commission shortlisting - HSF

Clear from record of private deliberations that race was the determining factor in deliberations

Litigation: High Court sets aside Magistrates Commission shortlisting

On 12 December 2019, the Bloemfontein High Court handed down judgment in which it set aside the shortlisting proceedings of the Magistrates Commission for magistrates' vacancies for the Free State. It also set aside the appointments of magistrates nominated and subsequently appointed by the Minister of Justice. The Helen Suzman Foundation (“HSF”) appeared in the matter as amicus curiae.

This application was brought by acting magistrate and head of office of Petrusburg Magistrate's Court, Richard Lawrence, whose shortlisting for a permanent position was overlooked by the Magistrates Commission. It was clear from the record of the private deliberations of the Magistrates Commission that race was the determining factor in the shortlisting process. In particular, the record revealed astonishing statements such as, "Anything you need, except white," made by the Chairperson of the Magistrates Commission. This resulted in no male or female white candidates being considered for shortlisting for any of the magisterial vacancies available.  

The Magistrates Commission attempted to justify its decision not to consider white candidates based on its interpretation of s174(2) of the Constitution, which requires that consideration in judicial appointments must also reflect broadly the racial and gender composition of South Africa. HSF argued that s174(2) must be considered and weighted with all other relevant factors to be considered in judicial selection. It cannot be the determining factor as that interpretation undermines the rule of law. The HSF also proffered other relevant factors for judicial selection. 

Acting Deputy Judge President Daffue, with Judge Molitsoane concurring, held that the Magistrates Commission was not quorate when it sat to shortlist the candidates. This rendered the proceedings unconstitutional, unlawful and invalid. With regard to the Magistrates Commission's interpretation and application of s174(2), the Court held that the Magistrates Commission displayed a total disregard for legislation, regulations, their own shortlisting processes and the rights of whites to at least be considered during the shortlisting process. The Court, therefore, set aside the appointments of magistrates already made by the Minister of Justice in this respect. 

A copy of the judgment can be accessed here.

Lee-Anne Germanos
Legal Researcher

Francis Antonie
Director

Issued by the HSF, 17 December 2019