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[2019] ZAFSHC 269
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Lawrence v Magistrates Commission and Others (1070/2019) [2019] ZAFSHC 269; 2020 (2) SA 526 (FB) (12 December 2019)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
1070/2019
In
the matter between:
RICHARD
JOHN
LAWRENCE
Applicant
and
THE MAGISTRATES
COMMISSION
1
st
Respondent
ZOLA MBALO
N.O.
2
nd
Respondent
(Chairperson of the
Appointments Committee of the Magistrates Commission)
THE MINISTER OF
JUSTICE AND
CORRECTIONAL
SERVICES
3
rd
Respondent
CORNELIUS MOKGOBO
N.O.
4
th
Respondent
(Acting Chief Magistrate
Bloemfontein cluster “A”)
CORAM:
DAFFUE, ADJP et MOLITSOANE, J
HEARD
ON:
7 OCTOBER 2019
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
12
DECEMBER 2019
I
INTRODUCTION
[1]
The shortlisting proceedings of the Appointments Committee of the
Magistrates Commission chaired by Regional Court President
of the
Free State, Ms Mbalo, pertaining to the Free State Province cluster
“A,” involving the districts of Bloemfontein,
Botshabelo
and Petrusburg are the focal point of the review proceedings
instituted in the High Court.
II
THE PARTIES
[2]
The applicant is Richard John Lawrence, an adult male person employed
as an acting Magistrate in Bloemfontein and head of office
of the
Petrusburg Magistrate’s Court at the time of the institution of
these proceedings. Applicant represented himself.
[3]
The
Magistrates Commission, a statutory body established in terms of s 2
of the Magistrates Act,
[1]
is
cited as the first respondent. The second respondent is Ms Zola
Mbalo in her capacity as chairperson of the Appointments
Committee
established by first respondent. The Committee she chaired was
established by the first respondent.
[2]
[4]
Third respondent is the Minister of Justice and Correctional
Services.
[5]
The fourth respondent is Magistrate Cornelius Mokgobo in his official
capacity as the duly appointed Acting Chief Magistrate
of the Free
State cluster “A” during the period 1 March 2019 until 31
May 2019.
[6]
The application is opposed by all four respondents. Adv DJ
Groenewald appeared for them on instructions of the State Attorney.
[7]
In order to avoid confusion, I shall hereinafter refer to the first
respondent as “the Commission” and to the Appointments
Committee as “the Committee.”
[8]
The Helen Suzman Foundation applied for and was granted leave to
intervene as
amicus curiae.
Adv B Winks appeared for the
amicus
on instructions of Webber Wentzel.
III
THE RELIEF SOUGHT
[9]
Applicant instituted his application on 8 March 2019,
inter alia
seeking relief on an urgent basis that first and second respondents
be interdicted from conducting interviews with and recommending
candidates shortlisted for appointment in the vacant and advertised
posts for Bloemfontein, Botshabelo and Petrusburg; that third
respondent be interdicted from appointing persons in the vacant posts
and directing third and fourth respondents to take the necessary
steps to renew his contract of employment as acting magistrate until
final determination of the relief sought in sub-paragraph
(e), to wit
that the shortlisting proceedings conducted for the vacancies of
magistrates for these districts be reviewed and set
aside. In
paragraph (f) an order was sought in terms whereof first and second
respondents be directed to reconsider the applications
of all
qualifying candidates who applied for the aforesaid posts.
[10]
On 11 March 2019 paragraphs (a) to (d) of applicant’s notice of
motion was dismissed, but leave was granted to him to
proceed in the
ordinary course with the leave sought in paragraphs (e) and (f).
[11]
On receipt of the transcript and audio recording of the interviews an
amended notice of motion and supplementary founding affidavit
was
filed on 28 June 2019. Respondents filed their answering
affidavit and applicant responded by filing his replying
affidavit.
The essence of the relief now claimed is an order declaring the
shortlisting proceedings conducted for the vacant
and advertised
magisterial posts for the districts of Bloemfontein, Botshabelo and
Petrusburg unlawful and unconstitutional and
that the proceedings be
reviewed and set aside with such directions as the court may wish to
grant.
[12]
The amended notice of motion reads as follows:–
“
(a)
declaring the shortlisting proceedings conducted by the second
respondent for the vacancies of magistrate in the Free State,
more
particularly Cluster A and the districts of Bloemfontein, Botshabelo
and Petrusburg unlawful and unconstitutional;
and
(b)
reviewing and setting aside, without directions, all such
shortlisting
proceedings
and all interviews, recommendations or appointment decisions made or
taken in consequence of such unlawful shortlisting
proceedings to
date, more particularly, in so far as such decisions pertain to the
magisterial districts of Bloemfontein, Botshabelo
and Petrusburg;
or
(c)
reviewing and setting aside all such shortlisting proceedings with
directions, by: …..” The number of directions
which applicant alleges the court shall made are set out in paragraph
(c), but not quoted, save to mention that provision is made
in (c) ix
and (c)x for orders prohibiting the third respondent from filling the
vacancies, and if he has done so, for such appointments
to be set
aside.
IV
UNCONTESTED EVIDENCE
[13]
At the time of the institution of proceedings herein applicant was
employed as an acting magistrate in Bloemfontein and head
of office
of the Petrusburg Magistrate’s Court. Both courts fall in
Free State cluster “A.”
[14]
Applicant’s
competency and experience are not in dispute. In fact, he
received accolades from more than one of his seniors
in several
progress reports attached to the founding affidavit. His acting
contract was extended several times on the basis
of a senior
magistrate and Acting Chief Magistrate indicating that he “remains
an asset to this office” and “I
unreservedly recommend
that his contract be extended for another term”
[3]
.
The fourth respondent said the following:
“
Insight
His
record of proceedings gives an accurate, detailed and comprehensive
reflection of what has transpired in any given case and
his judgments
are to the point, well-reasoned and always supported by relevant
authority.
Conclusion
and recommendation
Mr
Lawrence is an asset to this office and cluster and I recommend that
his contract be extended for another term.”
[4]
[15]
Under applicant’s guidance the Petrusburg Court improved from
the second best performing court in cluster “A”
and the
fifteenth best performing court in the country to the best performing
court in the Free State and in the country according
to NPA’s
statistics.
[5]
[16]
During 2018 the Commission invited applications to fill several
judicial vacancies which included six vacancies for magistrates
in
Bloemfontein and one vacancy for head of office for each of the towns
of Petrusburg and Bothsabelo. Applicant applied
for the post of
magistrate in Bloemfontein as well as the post of head of office in
both Botshabelo and Petrusburg.
[6]
He was not shortlisted to be interviewed.
[17]
The Committee tasked to do shortlisting consisted of the following
people: the chairperson, Ms Zola Mbalo and nine members,
to wit Mr
MSA Maila, MP; Ms CC September, MP; Mr BG Nthebe, MP; Mr M Samuel
Makamu; Mr MM Mokoena; Mr Desmond Nair; Dr Gomolemo
Moshoeu; Ms
Yoliswa Sidlova; and Ms PM Tengeni.
[7]
[18]
The following members were present during the shortlisting
proceedings for Botshabelo and Petrusburg, to wit Ms Mbalo; Mr
Makamu; Ms Sidlova; Ms September MP; Mr Mokoena; Ms Tengeni and Mr
Nthebe, MP. Only five members were present during the
shortlisting process for Bloemfontein, they being Ms Mbalo; Ms
Sidlova; Mr Mokoena; Ms Tengeni; and Mr Nthebe, MP.
[8]
Therefore, according to the uncontested evidence, Ms Mbalo and four
members decided upon the fate of candidates for a major
office such
as Bloemfontein, whilst in the case of Botshabelo and Petrusburg she
and six members were present during the shortlisting
proceedings.
[19]
The applicant was not considered at all for any of the posts that he
applied for. In fact, no white person was considered
for the
vacant magistrates’ posts in Bloemfontein or that of the head
of court post in Petrusburg.
[20]
The shortlisting proceedings were finalised and certain people
recommended for appointment. We have not been informed
during
the hearing of the application what the position was pertaining to
the appointment of people in the various vacant positions,
but it
transpired after argument and during preparation of this judgment
that appointments had in fact been made. On 4 November
2019
third respondent appointed 207 magistrates country wide, effectively
from 1 February 2020.
[21]
Applicant was informed as follows in an email of the Committee
secretary dated 26 February 2019:
[9]
“
The
Chairperson of the Appointments Committee directed that you be
informed that you cannot be included in the short-list for any
of the
posts you have applied for as you do not meet the section 174(2) of
the Constitution-criteria in any of those offices.”
V
THE DISPUTES
[22]
Applicant made numerous allegations and even accusations in his
papers, including his heads of argument. He repeated
himself
and was argumentative in the extreme. Instead of relying in his
affidavits on evidence of a factual nature in order
to bring his case
within the legal bases relied upon, he argued his case in the
affidavits and repeated his arguments in two sets
of heads of
argument. Applicant’s argumentative and offensive
approach is deplorable. His attack is typical of
the subjective
nature that can be expected of a person acting and arguing in his own
interest.
[23]
Respondents allege that, notwithstanding applicant’s
provocative attitude, it is not apparent on what cause of action
applicant relies. The Constitutional Court emphasised in
Bato
Star
[10]
that it is desirable for litigants who seek to review administrative
action to clearly identify both the facts upon which they
base their
cause of action and the legal issues for this cause of action, legal
argument is not called for in the affidavits.
Having said this,
I believe that the following is a fair summary of the issues raised
by the parties which will be considered by
me herein later:
23.1 Respondents’
first ground of opposition is non-joinder. It is their case
that the application should fail insofar
as applicant failed to join
all candidates shortlisted by the Committee. Applicant served
all shortlisted candidates with
copies of the papers and all of them,
save for four shortlisted in respect of the Bloemfontein vacancies
abide in the decision
of the court. No one indicated any
objection to the relief claimed.
23.2 According to
applicant the Committee was not quorate during the shortlisting
proceedings pertaining to Bloemfontein.
Reliance is placed on s
6(7) read with s 5(2) of the Magistrates Act. This submission
will be evaluated hereunder together
with respondents’
submissions in respect of s 5 and 6.
[11]
In short, it is respondents’ submission that the second
respondent as chairperson could rule in terms of ss 5(4) read
with
6(7), as she did, that the meeting was quorate although a majority of
members did not attend.
23.3 According to
applicant the Committee selectively applied s 174(2) of the
Constitution and in that process regarded race as
an “overarching
and sole consideration” insofar as white people were totally
disregarded. This is denied by respondents
who extensively
dealt with their views on the issue.
23.4
According
to applicant the Committee did not consider the relevant factors as
required by regulation 5 of the Magistrates Act
[12]
;
it is applicant’s case that his elimination by the Committee
before considering the regulation 5 factors constitute an abuse
of
and an incorrect application of s 174(2) of the Constitution.
Again, this issue was put in contention by respondents.
VI
EVALUATION OF THE PARTIES’ SUBMISSIONS
Non-joinder
[24]
Applicant
served his amended notice of motion dated 28 June 2019 together with
his supplementary founding affidavit by e-mail on
all candidates
shortlisted for the vacant positions in Bloemfontein, Petrusburg and
Botshabelo.
[13]
He
invited them to join the proceedings notwithstanding his belief that
they did not have a direct and substantial interest
in the review
application.
[25]
In response
to respondents’ non-joinder plea, applicant explains how he
gave notice of the application and attaches proof
of service.
[14]
He did this although the Committee decided to play cat and mouse
insofar as it declined to advise him which candidates had
been
recommended for appointment.
[15]
The State Attorney, instructed by respondents, relied on so-called
confidentiality.
[26]
In my view all shortlisted candidates knew about the applicant’s
application and if anyone wanted to oppose, he/she would
have been
able to do so. They are all legally qualified people who cannot
claim that they were ill-informed of their rights.
[27]
The issue
of non-joinder has again been dealt with authoritatively in
JSC
v Cape Bar Council
:
[16]
“
[12]
It has by now become settled law that the joinder of a party is only
required as a matter of necessity – as opposed to
a matter of
convenience – if that party has a direct and substantial
interest which may be affected prejudicially by the
judgment of the
court in the proceedings concerned (see eg
Bowring NO v Vrededorp
Properties CC
2007 (5) SA 391
(SCA) para 21). The mere fact that
a party may have an interest in the outcome of the litigation does
not warrant a non-joinder
plea. The right of a party to validly raise
the objection that other parties should have been joined to the
proceedings, has thus
been held to be a limited one (see eg
Burger
v Rand Water Board
2007 (1) SA 30
(SCA) para 7; Andries Charl
Cilliers, Cheryl Loots and Hendrik Christoffel Nel
Herbstein &
Van Winsen
The Civil Practice of the High Courts of South
Africa
5 ed vol 1 at 239 and the cases there cited.)”
[28]
The position may now be different than when we heard the
application. At that stage no candidate had the right to be
appointed. Now appointments have been done and if the
application succeed, the appointments must also be declared unlawful
and set aside. This is the relief applicant seeks in paragraphs
(b) and (c)x of the amended notice of motion. In my
view the
Minister and all appointed candidates knew that if the Minister would
be proceeding with appointments in the face of the
pending review
application, his decisions might be overturned. The point
in
limine
is dismissed.
Principle
of legality
[29]
The principle of legality dictates that power should have a source in
law. It is applicable whenever public power is
exercised.
[17]
[30]
This principle has again been discussed in
JSC
v Cape Bar Council
where the following principles were restated:
[18]
”
[20]
The court a quo agreed with the contention that the impugned
decisions of the JSC are excluded from review under PAJA by s 1(gg).
Nonetheless it found these decisions reviewable, in principle, under
the doctrine of legality. The correctness of this finding
is not
challenged by the JSC on appeal. As a result, the doctrine of
legality can, for present purposes, be stated without elaboration
and
purely as the underlying substructure for this court’s
consideration of the remaining issues.
[21]
As Ngcobo CJ said in
Albutt v Centre for the Study of Violence and
Reconciliation
2010 (3) SA 293
(CC) para 49, it has by now become
axiomatic that the doctrine or principle of legality is an aspect of
the rule of law itself
which governs the exercise of all public
power, as opposed to the narrow realm of administrative action only.
The fundamental idea
expressed by the doctrine is that the exercise
of public power is only legitimate when lawful (see
Fedsure Life
Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council
[1998] ZACC 17
;
1999 (1) SA 374
(CC) para 56). By way of example it was
held in
Fedsure,
on the basis of the legality principle, that
a body exercising public power has to act within the powers lawfully
conferred upon
it. And in
Pharmaceutical Manufacturers Association
of SA: In re Ex Parte President of South Africa
[2000] ZACC 1
;
2000 (2) SA 674
(CC) (para 20) it was held that the principle of legality also
requires that the exercise of public power should not be arbitrary
or
irrational (see also
Albutt supra
para 49 and the cases cited
in footnote 43).
[22]
The JSC’s power to advise the President on the appointment of
judges of the High Court is derived from s 174(6)
of the
Constitution. Hence it is undoubtedly a public power. In the event,
this court has recently held that
the proper composition of the
JSC is a matter for review under the doctrine of legality
(see
Acting Chairperson: Judicial Services Commission v Premier of the
Western Cape Province
2011 (3) SA 538
(SCA)). Moreover, in
accordance with legal principle that became well settled in many
cases since
Pharmaceutical
Manufacturers
, the decisions
of the JSC that are challenged by the CBC are, in principle, subject
to review on the basis of irrationality. This
brings me to the first
challenge based on the alleged improper composition of the JSC when
the decisions not to recommend any of
the unsuccessful candidates
were taken.” (Emphasis added)
[31]
Although applicant is somewhat evasive as to his cause of action,
there cannot be any doubt that he also relies on the principle
of
legality. The deliberations of the Committee are relevant to
consider whether there was compliance with the principle
of legality
and/or whether it acted rationally. The following
dicta
of the Constitutional Court in Helen
Suzman
Foundation v JSC
[19]
are apposite:
“
[23]
Surely, deliberations are relevant to the decision they precede and
to which they relate. Indeed,
HC SANRAL
correctly says
so. They may well provide evidence of reviewable irregularities
in the process, such as bias, ulterior purpose,
bad faith, the
consideration of irrelevant factors, a failure to consider relevant
factors, and the like. Absent disclosure,
these irregularities
would remain hidden. Deliberations are the most immediate and
accurate record of the process leading
up to the decision.
[67]
Where a claim to blanket non-disclosure is asserted, the court must
engage in a balancing exercise. An important factor
in
weighing-up the JSC’s interest against that of review
applicants in general is that the JSC is engaged in a particularly
important exercise of public power, which must be done lawfully and
rationally. Generally the only way to test the legality
of the
exercise of this power completely and thoroughly is to afford an
applicant for review access to
all
material relevant to that
exercise of power. If a public functionary can withhold
information relevant to the decision, there
is always a risk that
possible illegalities remain uncovered and are thus insulated from
scrutiny and review. That is at
variance with the rule of law
and our paramount values of accountability, responsiveness and
openness. This affects not only
the individual litigant, but
also the public interest in the exercise of public power in
accordance with the Constitution.
It must, therefore, be in
truly deserving and exceptional cases that absolute non-disclosure
should be sanctioned.”
[32]
It is alleged on behalf of respondents that no unfairness or
non-compliance with either regulation 5, or the Constitution occurred
in the shortlisting process adopted by the Committee.
[20]
Respondents’ deponent states the following pertaining to
applicant’s allegation that no white candidates were
considered
for the posts in cluster “A”
[21]
:
“
This
by no means suggests that there was a blanket ban imposed on
individuals from specific race groups. I pause to point
out
that a total of 65 white individuals were shortlisted for the
positions advertised of which 20 were white males.”
She
continues as follows
[22]
:
“
8.19.1
There was clearly a need for invoking restitutionary measures having
regard to the over representation of white males;
8.19.2
The process was implemented in a nuanced and flexible manner and
there were
no bar
on the shortlisting
of
white males
.” (my emphasis)
Further
on she said
[23]
:
“…
white magistrates already
comprises 26.5% of the Free State Cluster “A” lower court
judiciary, making white individuals
by far the most over-represented
group. The appointment of a white male would therefore have
been contrary to the objectives
of section 174(2) of the
Constitution.”
[33]
I do not agree that Ms Mbalo’s averments under oath are a true
reflection of the Committee’s deliberations pertaining
to the
Free State cluster “A.” I shall deal later herein
with this contention in detail with reference to several
extracts of
the Committee’s deliberations as transcribed.
Was
there a quorum in respect of the Bloemfontein shortlisting process?
[34]
The Committee consisted of ten persons, including the chairperson, Ms
Mbalo. Ms Mbalo and four members attended the Committee
meeting
dealing with the shortlisting for Bloemfontein. She states that
she has exercised the powers granted to her in terms
of s 5(4) read
with s 6(7) of the Magistrates Court Act and avers that the Committee
was quorate pertaining to the Bloemfontein
shortlisting process.
[24]
[35]
The applicable principles in respect of the interpretation of
legislation have been explained in several judgments of the Supreme
Court of Appeal and the Constitutional Court.
[25]
The decisions are clear. Over and above that stated in the
judgments referred to, I reiterate what Lewis JA said:
[26]
“Words without context mean nothing.”
[36]
A reading of s 5(2), read with s 6(7), indicates unambiguously that a
majority of the members of the Committee shall constitute
a quorum
for a meeting. The respondents’ argument is based on the
provisions of s 5(4) read with s 6(7). It is
their contention
that the chairperson of the Committee may decide during the meeting
that a decision may validly be taken by a
minority of members.
This would presumably be the case where the meeting was quorate
initially, but where members have left
for the one or the other
reason prior to a decision being taken. If this is correct,
five, six, seven, or eight of the required
ten members of the
Committee may decide to walk out after deliberations as they were
dissatisfied with the manner in which the
meeting was held and only
thereafter, the chairperson decides to call upon the remaining
members – the minority - to decide
on an issue. In such
an event, five, four, three or two members may be held to be a quorum
for a decision to be validly taken.
Mr Groenewald on behalf of
the respondents conceded that in regulating the quorum, the
chairperson must act within the bounds of
reasonableness. For
this submission, he relied on
Bertie
van Zyl Pty Ltd & Another v Minister of Safety and Security &
others.
[27]
[37]
It is accepted that a contextual or purposive reading of a statute
must remain faithful to the actual wording thereof as the
Constitutional Court confirmed in Bertie van Zyl,
[28]
but ambiguity must be dealt with by looking at the purpose and the
context in which the legislation was drafted. Sub-sections
5(2)
and s 5(4) are contradictory and can with the best will in the world
not be married to arrive at the conclusion reached by
the second
respondent who was clearly and incorrectly influenced by the
Committee’s secretary, Ms Van Zyl.
[29]
The two sub-sections do not make sense if read together and as
submitted on behalf of respondents. Respondents’
interpretation will lead to illogical, insensible and unbusinesslike
consequences. The purpose of insisting that a majority
of
members of the Commission and/or the Committee shall constitute a
quorum would be flouted if the chairperson may change the
quorum
requirements willy-nilly to twenty, thirty or forty percent of the
total members. Such interpretation may result in
a situation
where all ten members may be present at the start of the meeting at
say, 8 o’clock the morning, but by the time
material decisions
are to be taken after tea, half or more of them have decided to
leave, leaving it to the minority to decide
on important issues such
as the shortlisting of candidates for crucial posts such as judicial
officers. Such an approach
would be illogical and leading to
chaotic decisions being taken in respect of serious matters such as
the eventual appointment
of magistrates.
[38]
One of the members of the Committee, a person of the stature of Dr
Moshoeu, the Chief Executive Officer of the South African
Judicial
Education Institute (“SAJEI”), did not attend the
Bloemfontein shortlisting process. She might have
provided
important and relevant advice pertaining to the attendance of
training courses, such as those attended by applicant, and
the
difficulty to give in-house training to someone who has never before
acted as a magistrate.
[39]
I agree with the following
dicta
of Sher, J:
[30]
“
The
appointment of judicial officers is a delicate matter which the
public has a right to expect will be carried out carefully and
with
due and scrupulous regard for the legal prescripts concerned. It is
fundamentally embarrassing when those who are involved
with the
process get it wrong, because of a basic failure to attend to the
fundamentals, particularly when they, of all persons,
would surely be
expected to know what the law requires of them.
As
a constitutional state we cannot allow the process of the appointment
of magistrates, who are the backbone of our legal system,
to be dealt
with in a haphazard or lackadaisical fashion. That the body which is
tasked with the selection and interview of candidates
for judicial
office must be quorate is something which has been apparent at least
since the judgment of the Supreme Court of Appeal
in
Acting
Chairperson: JSC & Ors v Premier of the Western Cape
and it is distressing to note that at least in respect of the
appointment in question in this matter in 2017, this was not the
case.”
[31]
(emphasis
added)
[40]
The shortlisting, recommendation and appointment of judicial officers
are serious matters deserving to be treated fairly, in
terms of the
applicable legislation and prescripts and according to constitutional
values. If the Committee’s meeting
in respect of the
Bloemfontein shortlisting was not quorate, as I have found, the
decisions at that meeting are unconstitutional,
unlawful and
invalid. The fact that the appointees to the various posts in
cluster “A” have not been cited as
parties in this
proceedings cannot undermine the court’s function to declare
the shortlisting processes unlawful.
Non-compliance
with s 174(2) of the Constitution and regulation 5
[41]
It is understood that attention should be focused on the shortlisting
process and not the requirements for eventual appointment.
However, the shortlisting process cannot be evaluated without
considering the authorities, the views of eminent authors and ss
174(1) and 174(2) of the Constitution. These two sub-sections
read as follows:
“
174
Appointment of judicial officers
(1)
Any appropriately qualified woman or man who is a fit and proper
person may be appointed as a judicial officer. Any person to be
appointed to the Constitutional Court must also be a South African
citizen.
(2)
The need for the judiciary to reflect broadly the racial and gender
composition of South Africa must be considered when judicial
officers
are appointed.”
[42]
Justice DM Davis
[32]
stated
the following in respect of judicial appointments and in particular
how judges should be appointed:
“
The
preferable approach, in my view, is to find candidates who are the
very best in terms of criteria of merit which are established
by the
JSC. Merit, of course, is a contested concept and it would be
wrong, as is so prevalent in the discourse of the legal
community, to
conflate the concept of merit with the standard of a middle-aged
white senior counsel. To the contrary, life
experience of the
diversity of South Africa, empathy with the history of South Africa,
a deep grasp of the constitutional values
enshrined in the text and a
true commitment to the transformation of South African society, that
is which affirms and promotes
substantively the constitutional values
of dignity, freedom and equality, should be yardsticks in the
development of a standard
which justifiably constitutes merit.
Assume
however that this application of merit yields a ranking of
candidates, the application of which may not ensure the requisite
representivity. At this stage, the provisions of section 174(2)
would apply to ensure that candidates who may not have been
the first
or second choice on the ranking by the JSC but that notwithstanding,
comply with the test of merit and hence are appropriately
qualified,
are then appointed above the higher-ranked candidates in order that
the requirement of the Constitution in terms of
section 174(2) is
met.”
The
learned judge also referred in his article to the following:
“
On
15 September 2010, the JSC issued the following statement regarding
criteria to be appointed:
‘
The
following criteria are used in the interview of candidates and in the
evaluation exercise during the deliberations by the members
of the
Commission.
Criteria
stated in the Constitution
1.
Is the particular applicant an appropriately qualified person?
2.
Is he or she a fit and proper person, and
3.
Would his or her appointment help to reflect the racial and gender
composition of South Africa?
Supplementary
Criteria
1.
Is the proposed appointee a person of integrity?
2.
Is the proposed appointee a person with the necessary energy and
motivation?
3.
Is the proposed appointee a competent person?
(a)
Technically competent
(b)
Capacity to give expression to the values of the Constitution
4.
Is the proposed appointee an experienced person?
(a)
Technically experienced
(b)
Experienced in regard to values and needs of the community
5.
Does the proposed appointee possess appropriate potential?
6.
Symbolism. What message is given to the community at large by a
particular appointment?’”
[33]
It
will be shown later that the Magistrates Commission’s criteria
are differently worded, but in my view the core principles
should
remain the same.
[43]
Susannah Cowen
[34]
said the
following in respect of judicial selection:
“
In
public discourse there are few who would dispute that a fundamental
transformation of the judiciary on race and gender lines
is not
necessary but the meaning and implementation of the section has been
highly contentious….
If
we seek to remedy these wrongs, a quest for a broadly representative
bench is in line with the Constitution’s aspiration
to create a
just society that is based on non-racialism and non-sexism.
While it must mean that the bench we seek must be
made up primarily
of judges of African descent, we needn’t resort to the crude
tactics of apartheid to get there.
We
also need to take a view on how being black or female ought to
influence the selection process in a specific case…..
The
difficult case arises where two qualified candidates are being
considered but the candidate who will not enhance racial or gender
representivity is appreciably better qualified in an important
respect. In that case, the consideration of the need for racial
and gender representivity on the bench requires careful evaluation
and cannot be the only relevant consideration…
Finally,
we ought not to be too quick to assume that the legitimacy of the
bench will be best enhanced if race and gender representivity
is
accelerated. We must obviously aim to meet the objective of
racial and gender representivity with due expedition and treat
it
with priority, because the judiciary’s legitimacy depends on
it. But its legitimacy will ultimately depend on how
well the
judiciary is able to perform the functions the Constitution entrusts
to it.
It
is thus critical that the mechanisms that we use to assess the
suitability of a judge for office are appropriately tailored to
that
end.”
[44]
The respondents’ case is that the Committee acted fairly in
approaching the shortlisting process as it did. It
inter
alia
relied on the procedure to be followed by it as approved by the
Magistrates Commission on 7 April 2011.
[35]
The document is clear: the Committee must;
·
Consider whether in respect of each application received, the
requisite information and documentation prescribed in law
as well as
further requirements stipulated in the advertisement have been
provided. If any of the above are found to be lacking,
the
candidature of the applicant is automatically disqualified.
·
Consider the candidature of
all applicants
whose
applications contain all requisite information and documentation
mentioned above.
·
Determine whether the applicants whose applications are in order as
contemplated above are suitable for appointment based
on the
requirements of legislation and any other applicable criteria.
·
Draw up a short-list of the most suitable candidates for appointment.
·
Invite the short-listed candidates to an interview by the
Appointments Committee / Magistrates Commission on a date, time
and
place determined.” (emphasis added)
[45]
Under the heading of criteria for short-listing purposes the
following must be taken into consideration, although not in any
fixed
order or sequence of precedence:
·
Section 174(2) of the Constitution.
·
Relevant experience.
·
Qualifications.
·
Needs of the specific office.
·
Appropriate managerial experience or managerial skills.”
[46]
It is also noted: “Whereas in a situation where gender or race
transformation present itself as the most pressing need
such a
consideration will be given priority accordingly, to the extent that
it may be preferred to re-advertise the position if
no suitable
transformation candidate amongst any of the formerly disadvantaged
groups can be found to fill it.”
[47]
The Committee presented evidence in the words of its chairperson in
the answering affidavit, but in order to establish what
actually
occurred during the shortlisting meetings, one has to look at the
transcripts. I accept that it is not called for
to quote
evidence in detail in a judgment, but it is important to refer to the
following to show that the Committee had a total
disregard for the
legislation, regulation 5, their own shortlisting process and the
rights of whites to at least be considered
during the shortlisting
process:
[48]
In respect of Petrusburg the following was said:
“
Magistrate
Nulliah: This is a one man station. It is a predominantly
Afrikaans speaking community that we have there….”
to
which second respondent and others eventually responded:
Chairperson:
Not white. Just female, but not white.
Unidentified
person: Take away the white.
Unidentified
person: Take away white.
Magistrate
Nulliah: The reason I stated white female is because, but you have
given me a little bit of insight as to how to proceed.
I looked
at the Afrikaans community.
Chairperson:
We are also looking for experience ma’am.
Ms
Nulliah: We are also looking for experience. Acting experience
and managerial experience. So are we out of white
positions?
Ms
Nulliah: Female whites, are we not accepting?
Unidentified
person: No.”
[36]
Further
on the chairperson said: “Anything you need, except for
white.”
[37]
And
later on: “Chairperson: And if we say we take her (a black
female) then we are going to need persons to compare her with
and
there are no other females. So let us look at males, African,
coloured and Indian.”
[38]
It is evident that the Commission concluded, incorrectly and
unlawfully so, that a female should not or could not be compared with
male persons. This is discrimination in a pure form, but needs
no further attention. Fact of the matter is that no
whites were
considered.
[49]
Six vacancies were advertised for Bloemfontein, but the
Commission filled one post prior to the shortlisting process.
This appears to be irregular, but need not to be considered. In
respect of Bloemfontein Magistrate Nulliah indicated that
there were
five vacancies (instead of the original six) and then the following
transpired after her input that one white female
may be considered
for shortlisting:
“
A
coloured male, a coloured female and when I look at the cluster
establishment as a whole, we can take one white female.
Chairperson:
And why do you say so ma’am? Why do you chose these
races?”
[39]
Later
on: “Chairperson: But you still want a white female?
Magistrate
Nulliah: We can have one white female against an entire cluster
background.
Chairperson:
I think that three is enough for now, what is the view of the other
commissioners?” Hereafter there was
the following response:
“
Mrs
Sidlova: Chair, I do not know. I would rather we do not, if we
can find more of the other two races that are lacking,
then we do not
consider any white person.”
[40]
[50]
In respect of the shortlisting for Botshabelo the following was
recorded:
“
Unidentified
person: There is a Mr Lawrence from Petrusburg, but I think he must
be acting. Magistrate Nulliah: If I may, I do not
know if I am
allowed to interfere.”
[41]
After an introduction of the cluster establishment everybody
was talking at the same time when Mr Lawrence’s name came
up.
No doubt he was not even considered for Botshabelo, not to talk of
the other two districts. His name was not even
mentioned in
respect of those two districts. It is apparent from the record
that Magistrate Nulliah tried her best to arrange
that Ms Marinda
Pretorius, a white female, be transferred to Botshabelo, but the
chairperson said: “So we cannot take
Marinda (Pretorius)
there.”
[42]
[51]
The Committee was prepared, in the case of Bloemfontein, to shortlist
people who had never acted before as magistrates on the
basis that if
they are appointed, the other magistrates could train them.
[43]
A so-called two-two system was even called for in terms whereof two
people who have acted previously be appointed with two who
have not
acted so that the first two could train the inexperienced two.
[44]
In the process the Committee failed to adhere to its own policy
[45]
in that it did not consider the candidature of all applicants whose
applications were compliant. White people and applicant
in
particular was not considered at all.
[52]
Magistrates are not appointed on probation as in the past. Once
appointed, the Department might be stuck with a person
that is
incapable to perform as a judicial officer. Therefore it is a
sound principle, as is the case in the High Court,
the Supreme Court
of Appeal, as well as the Constitutional Court, to recommend
candidates for appointment only once they have shown
an ability to
cope as judicial officers.
[53]
It is unnecessary to dwell on the expertise and experience of
applicant. Insofar as the Committee acted as gatekeeper,
preventing any whites to be interviewed, it lost the opportunity to
duly consider whether applicant was not perhaps such an excellent
candidate that he should be recommended for appointment
notwithstanding the obligation to ensure that s 174(2) is diligently
applied.
[54]
The
amicus curiae
contributed to the resolution of the
dispute, but did not ask for any costs in its favour.
Applicant, being successful, is
entitled to costs against first and
third respondents and such an order shall be made.
VII
ORDERS
[55]
Consequently, the following orders are made:
1. It is declared that
the shortlisting proceedings chaired by second respondent for the
vacancies of magistrates for the Free State
relating to the districts
of Bloemfontein, Botshabelo and Petrusburg were unlawful and
unconstitutional.
2. The aforesaid
shortlisting proceedings and consequently also the recommendations of
the Appointments Committee of first respondent
and the appointment by
third respondent of magistrates for the districts of Bloemfontein,
Botshabelo and Petrusburg are reviewed
and set aside.
3. First and third
respondents shall pay applicant’s costs of the application
jointly and severally, the one to pay the other
to be absolved.
4. The
amicus curiae
,
the Helen Suzman Foundation, shall be responsible for its own costs.
__________________
J
P DAFFUE, ADJP
I
concur
__________________
P
E MOLITSOANE, J
On
behalf of Applicant: Mr RJ Lawrence (In person)
Instructed
by: Frank Botha Attorneys
BLOEMFONTEIN
On
behalf of Respondent(s): Adv DJ Groenewald
Instructed
by: State Attorney
BLOEMFONTEIN
On
behalf of the
amicus curiae
: Adv B Winks
Instructed
by: Webber Wentzel Attorneys
c/o
Symington & de Kok
BLOEMFONTEIN
[1]
90 of 1993
[2]
Ibid s 6(1)(b) read with s 6(3)
[3]
Progress report of 22 November 2016 at pleadings p 101 and progress
report of 18 June 2018 at pleadings p 129
[4]
Progress report of 9 September 2016: pleadings p 97A
[5]
Pleadings pp 127 & 133
[6]
Pleadings p 142
[7]
Annexure “
RJL31”,
pleadings p 207
[8]
Ibid
[9]
See annexure “RJL 33” at p 210
[10]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4)
SA 490
[11]
The two sections read as follows: “
5
Meetings of Commission
(1)
Meetings of the Commission shall be held at the times and places
determined-
(a)
by the chairperson or, if he or she is not available, by the
vice-chairperson of the Commission; or
(b)
if both the chairperson and the vice-chairperson of the Commission
are not available, by the majority of the members of the Commission.
(2)
The majority of the members of the Commission shall constitute a
quorum for a meeting of the Commission.
(3)
If both the chairperson and the vice-chairperson of the Commission
are absent from a meeting of the Commission, the members
present
shall elect one of their number to preside at that meeting.
(4)
The person presiding at a meeting of the Commission may regulate the
proceedings and procedure thereat, including the quorum
for a
decision of the Commission, and shall cause minutes to be kept of
the proceedings.
(5)
The proceedings of the Commission shall take place
in
camera
unless the person presiding at a meeting directs
otherwise.
6
Committees of Commission
(1)
The Commission, for the proper performance of its functions-
(a)
shall establish an executive committee consisting of two or more
members of the Commission designated by the Commission; and
(b)
may establish such other committees as the Commission may deem
necessary, consisting of one or more members of the Commission
designated by the Commission and one or more other persons, if any,
whom the Commission may appoint for that purpose and for
the period
determined by the Commission.
(2)
The Commission may extend the period of an appointment made by the
Commission under subsection (1) or withdraw such appointment
during
the period referred to in that subsection.
(3)
The Commission shall designate a chairperson for every committee
and, if the Commission deems it necessary, a vice-chairperson.
(4)
(a)
A
committee shall, in accordance with the policy laid down by the
Commission and subject to the directions of the Commission,
perform
such functions of the Commission as the Commission may assign to
such committee.
(b)
Any
function so performed by the executive committee referred to in
subsection (1)
(a)
shall
be deemed to have been performed by the Commission.
(5)
On completion of the functions assigned in terms of subsection (4)
to a committee referred to in subsection (1)
(b)
, such
committee shall submit a written report thereon to the Commission.
(6)
The Commission may at any time dissolve any committee.
(7)
The provisions of section 5 shall
mutatis
mutandis
apply to a
meeting of a committee
.
”
(emphasis added)
[12]
The regulation reads as follows: “Filling of vacancies:
In the appointment or a promotion of a Magistrate, only the
qualifications, level of education, relative merits, efficiency and
competency for the office of persons who qualify for the
relevant
appointment or promotion shall be taken into account.”
[13]
Pleadings,
pp 291 – 294 and supplementary affidavit paras 5 - 8, pp 298 -
301
[14]
Replying
affidavit paras 38.8 – 38.27 at pp 511 - 518
[15]
Replying
affidavit par 38.7 p 511 read with annexures “RJL44” –
“RJL46” at pp 542 - 545
[16]
2013(1)
SA 170 (SCA)
[17]
AAA
Investment (Pty) Ltd v Micro Finance Regulatory Council &
another
[2006] ZACC 9
;
2007 (1) SA 343
(CC) at par 29
[18]
Loc
cit at paras 20, 21 & 22
[19]
2018(4) SA 1 (CC) paras 23 & 67
[20]
Answering affidavit paragraph 8 p 249 - 257
[21]
Answering affidavit paragraph 8.18 p 256
[22]
Answering affidavit paragraph 8.19 p 256
[23]
Answering affidavit paragraph 9.8 p 258
[24]
Answering affidavit paragraph 8.14 p 255
[25]
In an oft-quoted judgment Wallis JA summarised the current state of
our law regarding the interpretation of documents, including
contracts, as follows in
Natal
Joint Municipal and Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) at para [18]:
“
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory
instrument, or
contract, having regard to the context provided by reading the
particular provision or provisions in the light
of the document as a
whole and the circumstances attendant upon its coming into
existence. Whatever the nature of the document,
consideration must
be given to the language used in the light of the ordinary rules of
grammar and syntax; the context in which
the provision appears; the
apparent purpose to which it is directed; and the material known to
those responsible for its production.
Where more than one meaning is
possible, each possibility must be weighed in the light of all these
factors. The process is objective,
not subjective.
A
sensible meaning is to be preferred to one that leads to insensible
or unbusinesslike results or undermines the apparent purpose
of the
document.”
(emphasis
added). See also: Bato Star Fishing Pty Ltd v Minister
of Environmental Affairs
2014 (4) SA 490
CC at para 89 and
Independent Institute of Education (Pty) Ltd v Kwazulu-Natal Law
Society & others
[2019] ZACC 47
delivered on 11 December 2019 at
paras 18 and 38 – 42
[26]
Novartis v Maphil
[2015] ZASCA 111
(3 September 2015) at para 28
[27]
2010
(2) SA 181
(CC) at paras 21 & 22
[28]
At par 22: “A contextual or purposive reading of a
statute must of course remain faithful to the actual wording of
the
statute.”
[29]
Record of proceedings, p 29
[30]
Magistrate AK Amos v Minister of Justice & 2 others, case no
9469/17, an unreported judgment of the Western Cape Division
delivered on 12 September 2019 at par 43
[31]
The JSC matter referred to by Sher, J can be found at
2011 (3) SA
538
(SCA) paras [19] - [21]
[32]
Judicial
appointments in South Africa,
Advocate,
Dec 2010 at p 42
[33]
Ibid
at p 43
[34]
Judicial Selection in South Africa Democratic Governance Rights Unit
(DGRU) (2010) at pp 69 - 73
[35]
Annexure “ZM4” p 446
[36]
Record of proceedings p 29 & 30
[37]
Ibid p 31
[38]
Ibid p 33
[39]
Ibid p 42
[40]
Ibid p 44
[41]
Ibid
pp 15 & 16
[42]
Ibid p 17
[43]
Ibid
p 48
[44]
Ibid
p 49
[45]
Record,
annexure ZM 4, p 446