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[2021] ZASCA 165
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Magistrates Commission and Others v Lawrence (388/2020) [2021] ZASCA 165; [2022] 1 All SA 321 (SCA); (2022) 43 ILJ 567 (SCA); 2022 (4) SA 107 (SCA) (2 December 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 388/2020
In the matter
between:
THE MAGISTRATES
COMMISSION
FIRST
APPELLANT
ZOLA MBALO
N.O.
SECOND APPELLANT
(Chairperson of
the Appointments Committee
of the
Magistrates Commission)
THE MINISTER OF
JUSTICE AND
CORRECTIONAL
SERVICES
THIRD APPELLANT
CORNELIUS MOKGOBO
N.O.
FOURTH APPELLANT
(Acting Chief
Magistrate Bloemfontein
Cluster âAâ)
and
RICHARD
JOHN LAWRENCE
RESPONDENT
and
THE HELEN SUZMAN
FOUNDATION
AMICUS CURIAE
Neutral
citation:
The
Magistrates Commission and Others
v
Richard
John Lawrence
(Case
no 388/2020)
[2021] ZASCA
165
(2
December
2021)
Coram:
PONNAN,
SALDULKER, VAN DER MERWE and MOLEMELA JJA and POTTERILL AJA
Heard:
01
September 2021
Delivered:
This
judgment was handed down electronically by circulation to the
partiesâ representatives by email, publication on the Supreme
Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 10h00 on
2
December
2021.
Summary:
Constitutional
law â
review
of a decision of the Appointments Committee of the Magistrates
Commission not to shortlist a candidate for appointment as magistrate
â
rigid
exclusion of candidate solely on account of being a white male
â
recommendation
of Appointments Committee reviewed and set aside.
ORDER
On
appeal from:
Free
State Division of the High Court, Bloemfontein (Daffue ADJP and
Molitsoane J, sitting as court of first instance):
The
appeal is dismissed with costs, including the costs of two counsel.
JUDGMENT
Potterill AJA
(Ponnan, Saldulker and Van der Merwe JJA concurring)
[1]
At the heart of the appeal is the legality and constitutionality of
the shortlisting process
of the Magistrates Commission and its
decision to overlook the respondent. The respondent, Mr Richard John
Lawrence (Mr Lawrence),
an acting magistrate, applied for the
position of a permanent magistrate in response to advertisements for
such positions in the
magisterial districts of Bloemfontein,
Botshabelo and Petrusburg. He was not shortlisted for any of these
posts. Aggrieved, he approached
the Free State Division of the High
Court, Bloemfontein (high court) for relief. The Magistrates
Commission (the Commission), Mr
Zola Mbalo NO, the Chairperson of the
Appointments Committee of the Magistrates Commission (the
Chairperson), the Minister of Justice
and Correctional Services (the
Minister) and Cornelius Mokgobo NO, the Acting Chief Magistrate
Bloemfontein Cluster âAâ, were
cited as the first to fourth
respondents respectively. The Helen Suzman Foundation was admitted to
the proceedings as an amicus curiae.
[2]
The application succeeded before Daffue ADJP (Molitsoane J,
concurring), who issued the following
order:
â
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 paying the other to be
absolved.
4.
The amicus curiae, the Helen Suzman Foundation, shall be responsible
for its own costs.â
The
appeal, with the leave of that court, is against the whole of the
judgment and order of the high court.
[3]
Before turning to the substantive merits of the dispute, two
ancillary issues require consideration. First,
it was contended on
behalf of the respondent that in terms of s 5(2), read with s 6(7),
of the Magistrates Act 90 of 1993 (the Act)
the Appointments
Committee (the Committee) was not quorate when candidates were
shortlisted for appointment to Bloemfontein. Second,
the appellants
contended,
in limine
, that, as all of the other shortlisted
candidates had a direct and substantial interest in the outcome of
the proceedings, the respondentâs
failure to join them precluded
the court from granting the relief sought by the respondent until
they had been joined as parties
to the proceedings.
Was the
Bloemfontein shortlisting committee quorate?
[4]
The high court upheld the point
that
the Committee was not
quorate in respect of the Bloemfontein shortlisting process. The
Committee comprised 10 members. In terms of
s 5(2) of the Act the
âmajority of the members of the Commission shall constitute a
quorum for a meeting of the Commissionâ.
During the shortlisting
only five members were present. The Chairperson, who had commented
that the Committee needed six members
to be quorate, appeared to be
alive to the fact that the number present fell below the required
number to constitute a quorum. However,
the Chairperson sought to
rely on s 5(4), read with s 6(7), of the Act as permitting the
continuation of the meeting.
[5]
Section 5(4) provides:
â
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.â
And, in terms of s
6(7) the âprovisions of section 5 shall
mutatis mutandis
apply to a meeting of a committeeâ.
[6]
The argument advanced on behalf of the appellants was that on a plain
grammatical reading of s 5(4)
of the Act, the Chairperson was
empowered to regulate the proceedings and procedure at a meeting,
including to proceed with the meeting
despite the fact that the
number present was less than that envisaged in s 5(2). The problem
with this argument is that it simply
ignores the mandatory provisions
of s 5(2) as well as the word âdecisionâ in 5(4) of the Act. Such
interpretation renders the
section nugatory. Before any validly
binding decision can be taken at a meeting, the meeting itself must
be quorate in terms of s
5(2). Thus, before the chairperson can
regulate the proceedings and procedure at a meeting in terms of s
5(4), the meeting must be
properly constituted. In other words,
absent a proper quorum in terms of s 5(2), there was no valid meeting
and s 5(4) could therefore
not be invoked. Section 5(4) in context
deals with the determination of a quorum for a decision at a quorate
meeting. In other words,
by way of example, the Chairperson could
direct that a decision would have to be unanimous or require a
two-thirds or a simple majority.
[7]
Requiring
a majority in terms of s 5(2) is consistent with the purpose of the
Act. The function of the Committee is to shortlist candidates
for
possible appointment. Judicial officers in the district and regional
courts play a vital role in the administration of justice.
[1]
The appointment of judicial officers is an important exercise of
public power to ensure the independence of the judicial branch of
government.
[2]
The Committee meeting is vital to that purpose. A quorum is
consistent with the principle that a majority of members would better
serve the purpose for which the Committee was established.
[3]
[8]
As it was pointed out in
Amos
v Minister of Justice and Others
[2019]
ZAWCHC 130 para 43:
â
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.â
[9]
To sum up, as the meeting was not quorate, the decisions taken at
that meeting, including the shortlisting
of candidates for
Bloemfontein, cannot stand and accordingly falls to be set aside.
Non-joinder of
the shortlisted candidates
[10] The
high court dismissed this point on the basis that all the shortlisted
candidates knew of the application and
could have opposed same if
they so wished.
[11] At
the hearing of the appeal counsel for the appellants conceded that
all the shortlisted candidates for the posts
at Botshabelo and
Petrusburg provided written or telephonic confirmation that they
would abide the decision of the court. The point
was accordingly
abandoned in respect of those two districts.
[12]
With regards to the Bloemfontein post: it was conceded that if the
meeting relating to the shortlisting of candidates
for Bloemfontein
was not quorate, as I have found, then the issue of non-joinder would
be rendered academic and need not detain us.
Legal Framework
[13]
Turning to the merits: A useful starting point is ss 174(1) and
174(2) of the Constitution, which provides:
â
(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.â
[14] In
addition, s 174(7) provides:
â
(7) Other
judicial officers must be appointed in terms of an Act of Parliament
which must ensure that the appointment, promotion,
transfer or
dismissal of, or disciplinary steps against, these judicial officers
take place without favour or prejudice.â
The legislation
envisaged in s 174(7) is the Act. Section 10 of the Act provides:
â
(10) The Minister
shall, after consultation with the Commission, appoint magistrates in
respect of lower courts under and subject
to the Magistrates' Courts
30 Act.â
[15]
Regulations
[4]
have been
published under the Act for the appointment of magistrates in 1994.
Regulation 3 sets out the requirements for appointment
as a
magistrate. It states that a person may not be appointed as a
magistrate or additional magistrate of a district court, or as
a
magistrate of a regional court, unless that person is appropriately
qualified; a fit and proper person; and a South African citizen.
Regulation 5 provides:
â
In the
appointment or 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.â
[16] The
Commission on 7 April 2011 approved the appointments procedure (AP)
of the Committee.
[17] The
AP identifies various criteria for shortlisting purposes, namely:
â
Section 174(2) of
the Constitution-
The racial and
gender demographics at a specific office, within an administrative
region / regional division and on a national level
on a specific rank
are to be considered in order to inform the application of section
174(2). Section 174(2) seeks to address imbalances
created in respect
of previously disadvantaged groupings.
Relevant experience-
The minimum required
relevant legal experience in respect of entry-level posts is 5 years
and the minimum required relevant legal
experience in respect of
regional court posts is 7 years. Consideration should not only be
given to the total number years of experience
but also to the nature,
diversity, quality and relevance of such experience.
Qualifications-
Appropriately
legally qualified persons should be considered.
. . .
Appropriate
managerial experience or managerial skills-
Consideration is
given to the fact that each judicial officer has to manage his/her
own court environment as well as the fact they
have to manage the
case flow in their own courts. In respect of posts where a magistrate
will have other magistrates that will report
to him/her, albeit on
the same rank, consideration is given to practical managerial
experience or managerial skills that an applicant
may possess.â
[18] The
AP stipulated that the listed criteria are not to be âapplied in
any fixed order or sequence of preference
or prioritisationâ.
Mr Lawrenceâs
candidature
[19] Mr
Lawrence commenced acting as a magistrate in the Bloemfontein Cluster
âAâ group on 2 January 2015. He did
so for four years and at the
time of the shortlisting process his acting appointments, each for
three months at a time, had been
renewed for the 48
th
time. When the proceedings were instituted Mr Lawrence had been
acting as the Head of the Petrusburg office for two years. But,
he
was also assisting in Bloemfontein and various other courts.
[20] The
competence and experience of Mr Lawrence was not in dispute. His
acting appointments were renewed for a period
of four years in
accordance with the Deputy Minister of Justiceâs letters to the
Chair of the Chief Magistratesâ Forum wherein
it was stressed that
acting appointments should not be extended for a period of longer
than two years and that when acting appointments
were extended for
longer than two years it had to be strongly motivated and convincing.
The motivations from the acting senior magistrate,
Mr Mokgoba, and
the acting chief magistrate, Mr Matshaya, for the 48 extensions were
strong. In the progress report of September
2018, Mr Matshaya
recorded that the statistics revealed that under Mr Lawrence, the
Petrusburg court was elevated to the second best
performing court in
the cluster and the fifteenth best performing court in the country.
He remarked: âThis result was extremely
pleasing since Mr Lawrence
had, during this period, also materially contributed to the
statistics for Jagersfontein court which came
1
st
in the
cluster and 9
th
overall in the countryâ. In the later
statistics, the Petrusburg office was elevated to the eight best
performing court in the
country. Petrusburg, still under the guidance
of Mr Lawrence, then went to the fifth best performing court in
the country and
by November 2018 Petrusburg was ranked the best
performing court in the Free State and in the country.
[21] He
managed the office well and held meetings with stakeholders in the
community to identify issues and took remedial
action to improve the
service delivery of the office. His productivity in finalising
matters was outstanding with him clearing backed-up
court rolls. His
judgments were sound and well-reasoned. He was praised for his
contribution to peer support and the empowerment
of colleagues
through the training he provided.
[22] Mr
Lawrence met all of the requirements of regulation 3 in that he was
appropriately qualified, a fit and proper
person and a South African
citizen. He had the level of education and competency for the posts
he applied for (regulation 5). His
application also complied with all
of the advertised requirements for the posts. Having met all of the
prescribed requirements, Mr
Lawrenceâs application fell to be
considered alongside those of the other candidates, who likewise met
those requirements.
[23] The
record reflects that although Mr Lawrenceâs name was mentioned
three times during the shortlisting process,
he was simply excluded
from consideration for any of the posts. I find it necessary to quote
from the record for the post advertised
at Petrusburg to highlight
the committeeâs approach to Mr Lawrenceâs application:
â
MS NALIA:
This position was previously occupied initially by as I remember Mr
Mchaiya and then he was â came through to Bloemfontein
and acting
magistrate Mr Lawrence has been there, but as I indicated earlier our
cluster establishment, we are sitting with 11 white
males at
presently.
CHAIRPERSON: No, we
are not looking for white males in your cluster at all.
MS NALIA: All right
CHAIRPERSON: And
even females, how are your white females?
MS NALIA: We have
only got six, so we can â I looked at the demographics, we can may
be look at one or two white females, but other
than that we have to
place, for us we have to place emphasis also on the coloured and the
Indian females.
UNIDENTIFIED PERSON:
In your head of court positions, what do you have, white males
mostly?
MS NALIA: No not
really, not head of court positions.
. . .
MS NALIA: . . . It
is a predominantly Afrikaans speaking community that we have there. I
looked at the community, it is a huge farming
community in
Petrusburg. Definitely as Ms van Zyl said, there is a need for a
female magistrate as a head of court there.
UNIDENTIFIED PERSON:
Yes.
MS NALIA: Because I
do not believe that there ever had a female magistrate in that as a
head in that court house.
UNIDENTIFIED
PERSON: I think Mr Mchaiya was the first person of colour
there.
MS NALIA: Yes, that
is correct.
CHAIRPERSON: Not
white. Just female, but not white.
MS NALIA: In that
position?
CHAIRPERSON:
Yes.
MS NALIA: Then we
are looking definitely at â but then I was looking at â but as
you said we have got to be very careful about
the interpreter. So I
am going to take that into account.
UNIDENTIFIED PERSON:
Take away the white
. . .
MS NALIA: . . . I
looked at the Afrikaans community. It is â but when I say
Afrikaans, it is the Sothos and Tswanas that speak,
they speak
Afrikaans and the court setup etcetera, that is what I looked at.
CHAIRPERSON: We are
also looking for experience maâam.
MS NALIA: We are
also looking for experience. Acting experience and managerial
experience. So are we out of white positions?
. . .
CHAIRPERSON:
Experience yes, because one person station and head office. So we
cannot take. . . (intervention).â
[24]
âTake away the whitesâ suggests the application of a rigid
exclusionary criterion base on race. The record reflects
the same
position taken and practice applied by the Committee pertaining to
the other two posts; a targeted exclusion of white candidates.
It is
manifest from the transcript that the Committee was not prepared to
consider any of the other criteria in relation to Mr Lawrence.
There
ought to have been no fixed order or sequence of prioritisation of
the listed criteria, but rather a consideration of all of
the
relevant criteria and, where necessary a balancing of the one against
the other. There is always the question of the weight to
be allocated
to the different factors in any given situation. Depending on the
circumstances, certain factors may have to assume
greater
significance than the others, but the Committee cannot adopt a
blanket approach that prioritises one factor to the exclusion
of all
the other factors. In adopting a blanket exclusion, as happened here,
the Committee impermissibly fettered its own discretion.
[25] The
âcircumstances of the postâ was that of Head of the Office of a
one person station. As the answering
affidavit made clear, the
needs of such office were that âthe short-listed candidate will
have to have experience in civil, criminal
and family law and the
intricacies of the community that is served by the office e.g. local
beliefs and traditionsâ. The Committee
recognised that the
candidate would need acting and managerial experience. They knew that
due to the predominance of the Afrikaans
language spoken in
Petrusburg, an interpreter would be required if a non-Afrikaans
speaking candidate was appointed. The Committee
disregarded the fact
that Mr Lawrence had acted and managed the Petrusburg office. Mr
Lawrence had criminal, civil and family law
experience. The Committee
did not balance the relevant experience, qualifications, needs of
that office and the appropriate managerial
skills, instead it used
race as a guillotine to exclude from consideration candidates who
were white.
[26] Reliance was
sought to be placed on
Solidarity
and Others v the Department of Correctional Services and Others
[5]
(
Solidarity
).
It was there stated: âThe targets in the 2010 EE Plan should not be
viewed in isolation as does the second judgment. The correct
approach
is to look at the 2010 EE Plan holistically including the provisions
relating to deviationsâ. However, the appellantsâ
reliance on
Solidarity
is misplaced.
[27]
Solidarity
is not support for the approach adopted by the Committee. In
Solidarity
para
51, the matter of
Barnard
[6]
was relied on as follows: âIn
Barnard
this Court, although not defining a quota exhaustively, held that one
of the distinctions between a quota and a numerical target
is that a
quota is rigid whereas a numerical target is flexible. Therefore, for
the applicants to show that the numerical targets
constituted quotas,
they need to first show that they were rigidâ.
In both
Barnard
and
Solidarity
the Constitutional Court eschewed rigidity.
Barnard
(at para 30) pointed out that: âour quest to achieve equality
must occur within the discipline of our Constitutionâ. In
Solidarity
(para 78), the Constitutional Court emphasised
that: âIt is of fundamental importance that the basis used in
setting numerical goals
or targets be the one authorised by the
statute. A wrong basis will lead to wrong targets.â
[28] As the written
reasons for the decision made clear, Mr Lawrence was not shortlisted
on the basis that he did not
âmeet the section 174(2) of the
Constitution-criteria in any of those officesâ. The Commission
therefore firmly located the reason
for his exclusion in his race and
gender. What is clear from the record is that the Commission was
fixated on excluding candidates
from a particular group and no
flexibility or deviation from that targeted group would under any
circumstances even have been considered.
[29] It
is not denied that the Committee had adopted exactly the same
approach pertaining to the Botshabelo and Bloemfontein
posts. Mr
Lawrence was never mentioned when the Bloemfontein post was
considered. For the Botshabelo post his name was mentioned,
but
immediately rejected because he was a white male. The fixed resolve
to exclude any and all white candidates on account of their
race is
clear. The record makes plain that what happened here was the
targeted exclusion of white candidates.
[30]
The amicus curiae supported the submissions on behalf of Mr Lawrence
and in addition referred us to three Equality
Court matters. In the
first,
Singh
v Minister of Justice and Constitutional Development and Others
2013
(3) SA 66 (EqC), the Commission was ordered to clearly reflect the
provisions of s 174(2), read with s 9, of the Constitution
in
the criteria used for shortlisting, as well as, whether candidates
had a disability or not. The court found in para 27 that:
â
[
t]he
specific mention of race and gender in section 174(2) of the
Constitution should not be misunderstood to be excluding the other
important factors mentioned in section 9(3) of the Constitution which
should be considered when short listing magistratesâ.
[31] In the second,
Du
Preez v Minister of Justice and Constitutional Development and Others
2006 (5) SA 592
(EqC) para 41, Erasmus J found that the
formula applied by the
Committee: âeffectively gave automatic and absolute preference to
black female applicants who met the minimum
job requirements,
irrespective of how they compared to the complainant, or for that
matter to black male and white female applicants.
No regard was had
to how the formula affected such other applicants, nor did it have
effective regard to the specific needs of the
posts, beyond the
minimum qualifications for the positions. The inflexible
modus
operandi
of the
committee comes foursquare within the situation of absolute inclusion
of designated group members to the absolute exclusion
of
non-designated group members. . .â. The Court found that this
absolute exclusion applied by the Committee did amount to unfair
discrimination in terms of the
Promotion of Equality and Prevention of Unfair Discrimination Act 4
of 2000 (Equality Act).
[32] In the third,
Kroukamp and Another v The Minister of Justice and Constitutional
Development and Others
[2021] ZAGPPHC 526 para 48, the Court
found: âThe position of the Minister in this case, seems to be that
no matter how hard the
Magistrates Commission tried to explain the
suitability of the first complainant to be appointed as Senior
Magistrate at Alberton,
he was not prepared to appoint a white male
to that post. His position seems to be that a white male cannot be
recommended for an
appointment, given the constitutional injunctions.
Nothing in section 174(2) of the Constitution prohibits the
recommendation, or
appointment, of a white maleâ.
[33]
In each of the three matters the court rejected the rigid approach
adopted by the Committee when applying the criteria
for appointment
as a magistrate, as unfair discrimination. Although those matters
fell to be judged in terms of the Equality Act,
the elevation of s
174(2) criteria to an upfront disqualifying measure was rejected.
[34]
The
legislative scheme does not permit a targeted group approach,
precisely because no one factor can at the outset override or take
precedence over other factors. The starting point of the exercise was
therefore fundamentally flawed. The record shows that the process
was
rigid, inflexible and quota-driven. The blanket exclusion of white
persons, no matter how high they may have scored in respect
of the
other relevant factors is revealing. Any white candidate, no matter
how good, was mechanistically excluded. The result was
that
Mr Lawrenceâs application was not considered at all. The
approach of the Committee was not consistent with the proper
interpretation and application of s 174 of the Constitution,
regulation 5 or the AP. Rather than considering race as but one of
factors,
albeit an important one, the Committee set out to exclude
candidates, including the respondent, on the basis of their race.
Such
an approach does not meet the threshold set by our courts and
cannot be countenanced. It is important to emphasise that we are
concerned
here with the shortlisting process. It is quite untenable
that at this early phase of the recruitment process, candidates
should
be excluded for no other reason but their race.
[35]
Consequently,
the following order is made:
The appeal is dismissed with
costs, including the costs of two counsel.
S POTTERILL
ACTING JUDGE OF
APPEAL
Molemela JA
[36] I
have read the judgment of my sister, Potterill AJA (the first
judgment) and agree with the reasoning and conclusion
in relation to
the non-joinder issue. As regards the shortlisting process followed
by the Appointment Committee (the Committee),
my view is that based
on the record of the Committeeâs deliberations pertaining to the
Botshabelo post, it cannot be rightly concluded
that the shortlisting
process adopted by the Committee in relation to that post was
rigid,
inflexible and quota-driven. As
regards
the Petrusburg post, I agree that the Committeeâs decision be set
aside. I, however, also highlight the fact that the Committee
irrationally failed to consider shortlisting female candidates,
thereby failing to advance gender transformation in the judiciary
in
relation to that post. Regarding the Bloemfontein post, my view is
simply that because the Committee was not quorate when the
shortlisting process was undertaken, on that ground alone, the
Committeeâs decision was a nullity and ought to be set aside.
[37]
The first judgment correctly points out that
a
useful starting point in relation to the merits of this matter is ss
174(1) and 174(2) of the Constitution.
[7]
From my point of view, s 174(2) must be read with s 174(1), as these
provisions are two sides of the same coin.
[8]
However, there is no need to canvass the provisions of s 174(1) in
this judgment, as no issue was taken regarding the competence
of the
candidates who were shortlisted and subsequently appointed, nor their
fitness to hold office. The Constitutional Courtâs
rich
jurisprudence on transformation, as laid down in a plethora of
judgments, is of relevance to the issues raised in this matter.
Notably, courts in many jurisdictions have often quoted dicta
expressed in a different context in other judgments, to the extent
that such dicta are considered to be equally appropriate in the
matter under consideration.
[9]
Some of the passages alluded to in this part of the judgment must be
seen in that context.
[38] As
stated in a plethora of judgments, âin law, context is everythingâ.
It is clear from the text of s 174(2)
that a full appreciation of
substantive equality is required. Substantive equality is not only a
core and foundational value embodied
in the preamble
[10]
of the Constitution of South Africa, it is also an enforceable right
enshrined in the bill of rights.
[11]
Whereas s 9(1) of the Constitution guarantees formal equality, s 9(2)
requires the state and other role players to take legislative
and
other measures to protect or advance persons that have been
disadvantaged by unfair discrimination.
[39]
Interpreting and understanding equality in a substantive manner
inevitably requires us to acknowledge the need to
redress the
previously entrenched inequalities of the past.
[12]
Acknowledging the uniqueness of the South African Constitution, Chief
Justice Margaret H Marshall
[13]
said: âthe South African Constitution is newer than the American
Constitution. It is a product of negotiations between internal
divisions rather than a statement of liberation from an external
enemy. . . [a]nd in many ways your Constitution is more detailed,
more specific about its aims and the processes required to achieve
themâ.
[40] The
following remarks made by Moseneke DCJ in
Minister
of Finance v van Heerden
(
van
Heerden
)
[14]
are apposite:
â
The jurisprudence
of this Court makes plain that the proper reach of the equality right
must be determined by reference to our history
and the underlying
values of the Constitution. As we have seen a major constitutional
object is the creation of a non-racial and
non-sexist egalitarian
society underpinned by human dignity, the rule of law, a democratic
ethos and human rights. From there emerges
a conception of equality
that goes beyond mere formal equality and mere non-discrimination
which requires identical treatment, whatever
the starting point or
impact. . . .â
[41]
Having emphasised that our Constitution says more about equality than
do comparable constitutions in that it inter
alia imposes a positive
duty on all organs of state to protect and promote the achievement of
equality, Moseneke DCJ rightly cautioned
as follows at para 29 of
that judgment:
â
. . . The
American jurisprudence has, generally speaking, rendered a
particularly limited and formal account of the reach of the equal
protection right. The US anti-discrimination approach regards
affirmative action measures as a suspect category which must pass
strict
judicial scrutiny . . . Our equality jurisprudence differs
substantively from the US approach to equality. Our respective
histories,
social context and constitutional design differ markedly.
. . .â
[42] In
the same judgment, Moseneke DCJ went on to aptly describe the concept
of substantive equality as follows:
â
. . . [W]hat is
clear is that our Constitution and in particular section 9 thereof,
read as a whole, embraces for good reason a substantive
conception of
equality inclusive of measures to redress existing inequality. Absent
a positive commitment progressively to eradicate
socially constructed
barriers to equality and to root out systematic or institutionalised
under-privilege, the constitutional promise
of equality before the
law and its equal protection and benefit must, in the context of our
country, ring hollow.â
[15]
[43]
Similarly, in
Minister
of Constitutional Development and Another v South African
Restructuring and Insolvency Practitioners Association and
Others
,
[16]
the
Constitutional Court stated that:
â
Restitutionary
measures are a vital
component of our transformative constitutional order. The drafters of
our Constitution were alive to the fact
that the abolition of
discriminatory laws and the guarantee of equal rights alone would not
lead to an egalitarian society envisaged
in the Constitution.
Something more had to be done in order to dismantle the injustices
and inequalities arising from the apartheid
legal order. Hence the
Bill of Rights, which is a cornerstone of our democratic order,
includes remedial measures.â
[44] I
agree with the sentiments expressed in the passages quoted from the
two seminal judgments quoted above and consider
them equally apposite
in relation to the constitutional injunction embodied in s 174(2) of
the Constitution. As I see it, s 174(2),
envisioning as it does a
judiciary that reflects the race and gender demographics, is aimed at
achieving substantive equality, for
the measures taken in terms of ss
174(2) are equally integral to the reach of our equality protection
and transformation of the judiciary.
This inevitably entails
redressing the injustices of the past.
[17]
[45] In
his oral submissions, counsel for the amicus inter alia referred this
Court to the judgment of the Equality Court
in
Singh
v Minister of Justice and Constitutional Development and Others
(
Singh
)
[18]
on the basis that it is apposite to the interpretation of s 174(2) of
the Constitution. In that matter, the Equality Court correctly
acknowledged the need to consider substantive equality when making
judicial appointments as follows:
â
T
he
injunction to consider race and gender, in terms of section 174(2) of
the Constitution, when making judicial appointments is clearly
fair
and constitutional having regard to the history of South Africa. . .
.â
I
agree.
[46]
I am of the view that once reliance has been placed on the provisions
of s 174(2) of the Constitution (as has happened
in this matter), a
brief historical background that informed the inclusion of that
provision becomes necessary for purposes of context.
Former Chief
Justice Langa lamented about the unfortunate history of South Africa
as follows:
â
Justice
in the past had a white unwelcoming face with black victims at the
receiving end of unjust laws administered by courts alien
and
generally hostile to them. The language of the courts was not that of
the majority. Nor was the culture and social practices
of the
judicial officers that of the racial majority.â
[19]
[47]
The following statistics of the demographic composition of the
judiciary as at 27 April 1994, the dawn of democracy,
attest to the
veracity of the former Chief Justiceâs remarks:
[20]
High
Court and Supreme Court of Appeal
Black
females: 0
Black
males: 3
White
females: 2
White
males: 160
Magistracy
The
available statistics in respect of the Magistracy were recorded in
1998 and were, as at that date as follows:
[21]
Black
females: 86
Black
males: 481
White
females: 198
White
males: 750
The
historic imbalance that needed to be redressed since the advent of
democracy is self-evident.
[48]
It is against the background of these statistics and the provisions
of s 174(2) that the allusion to the race of
the candidates has to be
understood whenever issues pertaining to transformation of the
judiciary need to be decided. The appellants
asserted
that
it was in the context of paying consideration to the afore-mentioned
imbalance that the Committee took into account that the
race profile
was such that the proportion of white male magistrates constituted
26.5 percent of the total complement of the âFree
State Cluster A
lower court judiciaryâ and was thus disproportionate to the
population demographics in that area. The deponent
to the appellantsâ
affidavit averred that â[w]hite males [were] by far the most
âover-representedâ group (25 years after
the dawn of [South
Africaâs] democracy)â. The appellants contended that
Mr Lawrenceâs candidature was duly considered,
but he was not
shortlisted due to the over-representation of white males in that
cluster. According to the appellants, the Committee
was entitled to
prioritise gender or race transformation when same was shown to be
the most pressing need. It was thus submitted
that
the
Committee's actions were justifiable, rational and fair having regard
to the provisions of the AP.
[49]
Purporting to rely on the judgment of the Constitutional Court in
South
African Police v Solidarity obo Barnard
(
Barnard
),
[22]
the appellants asserted that the Committeeâs approach was flexible
and did not amount to a quota system, considering that the Committee
had shortlisted white males in other districts. It could not be
argued that by invoking the requirements of s 174(2) the Committee
acted arbitrarily or displayed naked preference, so it was contended.
The appellants stressed that the conduct of the Committee should
be
viewed holistically, having regard to the fact that in Cluster A
there was a pressing need for transformation. They contended
that the
court a quo had not taken this aspect into account.
[50] The
deponent to the appellantsâ supplementary affidavit asserted that
during the shortlisting meeting, the information
relating to (i) the
âtargetâ group and (ii) candidates who had acted as magistrates
âirrespective of their race and genderâ,
was displayed on a
screen. It bears mentioning that the appellantsâ version that the
candidatesâ information as gleaned from
their resumes was condensed
and embodied in a database that was displayed on a screen, is borne
out by the transcribed record of
the meeting of the Committee.
Furthermore, the appellantsâ version that Mr Lawrenceâs name was
included in that database on the
basis of having acted as a
magistrate, is also borne out by the same record.
[51] The
following stipulations of the AP, which were embodied in the
advertisement for the respective posts, bear repeating:
â
Section 174(2) of
the Constitution-
The racial and
gender demographics at a specific office, within an administrative
region / regional division and on a national level
on a specific rank
are to be considered in order to inform the application of section
174(2). Section 174(2) seeks to address imbalances
created in respect
of previously disadvantaged groupings.â
Significantly,
none of the parties have attacked the shortlisting and appointment
policies set out in the AP.
[52]
I am of the view that, given the history of our country, the
stipulations of s 174(2) of the Constitution and
the provisions
of the AP,
the
mere allusion to the demographic composition of a specific office and
the race of the respective applicants should not be considered
to be
a taboo topic. Having said that, I must hasten to caution that it
bears being mindful that âthe long-term goal of our society
is a
non-racial, non-sexist society in which each person will be
recognised and treated as a human being of equal worth and
dignityâ.
[23]
In
du
Preez v Minister of Justice and Constitutional Development and
Others
,
[24]
t
he
court found that t
here
is patent disproportionality in a selection policy based on race and
gender to the absolute exclusion of all the other qualities
required
for a position of a regional magistrate. This dictum was
approved
by the Constitutional Court in
Barnard
.
It is therefore crucial to bear in mind that
even
though
the
Constitution requires those selecting judges and magistrates to
consider the need for the judiciary to reflect broadly the racial
and
gender composition of South Africa, it does not prescribe a rigid
approach.
The
discretion of the Committee members would be fettered and the
objective of broad racial and gender transformation thwarted if
a
mechanical approach were to be followed when considering candidatesâ
suitability for appointment to the bench. It is thus abundantly
clear
from all the authorities alluded to, above, that candidates cannot be
excluded from consideration solely on account of their
race. I turn
now to consider the issues raised in this appeal.
[53]
The
respondent made much about of the fact that the AP expressly provides
that the listed criteria are not to be âapplied in any
fixed order
or sequence of preference or prioritisationâ. From my point of
view, this specific stipulation does not, in any way,
detract from
the provisions of s 174(2) of the Constitution. It is for that reason
that I agree with the first judgmentâs finding
[25]
that, depending on the circumstances, certain factors may assume
greater significance than others when the suitability of candidates
is considered. This is a clear recognition that the Committee had a
discretion to decide which candidate to shortlist for the respective
posts among those who met the requirements set out in the
advertisement of the vacancies.
[54]
Under the heading â[c]riteria for short-listing purposesâ and the
sub-heading â[n]eeds of the specific officeâ,
the AP provides
that â[c]consideration is inter alia given to the type of post to
be filled, e.g. Head of Court or an additional
magistrate, whether
the office is located in a rural or urban area, what types of matters
are predominantly adjudicated upon in that
office, whether the post
to be filled needs specific skills such as vast civil experience, the
needs of the community, etcâ. The
exercise of the Committeeâs
discretion therefore inevitably entails considering the needs of the
respective offices in respect
of which vacancies have been
advertised, among other things. This means that, as a matter of
logic, it is quite conceivable that
a candidate who was not deemed
suitable for a post in a particular area could be considered suitable
for a similar post in another
area. Bringing it to the facts of this
case, the fact that Mr Lawrence might not be considered a suitable
candidate for a specific
post would not ineluctably lead to the
result that he could not be shortlisted for any other post.
[55]
The
appellants submitted that the fact that forty-five white candidates
(of whom 16 were white males) were shortlisted by the
same
Committee, nationally, serves to show that race was not used as a
blanket exclusion of white applicants. Indeed, t
he
national statistics pertaining to the judicial officers appointed
over the years in the magistracy and the superior courts serve
to
dispel the idea of a blanket exclusion on account of race, as white
candidates have continued to not only be shortlisted but also
appointed in various courts since the advent of democracy. That,
however, does not necessarily mean that the shortlisting processes
should not be scrutinised in appropriate circumstances.
[56]
In relation to the impugned shortlisting processes, the appellants
averred that before the shortlisting meetings
were held, cluster
heads were required to submit information pertaining to the race and
composition of the cluster, as well as that
of each office in
relation to which a post had been advertised. Thereafter, the
Committee would, during the shortlisting process,
âlook closelyâ
at the race and gender composition of both the cluster and the
office. According to the appellants, â[a]ll the
needs identified
[would] determine a target group to shortlist fromâ. What can be
gleaned from the transcript is that the
Committee dealt with
the different districts in Cluster A of the Free State on a
post-by-post basis. In other words, they deliberated
about the needs
of a particular post and the candidates who had applied for that
specific post, then decided on which candidates
to shortlist for that
particular post. Only thereafter would the Committee members move on
to deliberate on the next post. That being
the case, I am of the view
that t
he
utterances made by some of the Committee members in relation to one
post should not, without more, be regarded as a backdrop against
which the entire shortlisting process must be assessed.
[57]
In
Helen
Suzman Foundation v Judicial Services Commission
,
[26]
the majority judgment observed that â⦠deliberations are relevant
to the decision they precede and to which they relateâ. In
this
matter, the shortlisting process for Botshabelo preceded the one for
the Petrusburg post. I am therefore of the view that it
is not
appropriate to consider the deliberations made in respect of the
Petrusburg post as a yardstick to assess the Committeeâs
deliberations in relation to the Botshabelo post. This is all the
more so because the record shows that prior to deliberating on
the
Botshabelo post, the Committee had deliberated on another post within
cluster A, namely Ficksburg (Mr Lawrence did not apply
for this
post). What is clear from the record is that a variety of factors
were taken into account and some were considered more
significant
than others. It is for this reason that I hold the view that any
shortcomings that may have been identified in respect
of the
Petrusburg post should not serve to tarnish the deliberations in
respect of the Botshabelo post.
Botshabelo post
[58] As
stated before, the deponent to the appellantsâ answering affidavit
maintained that the information pertaining
to all the candidates who
had acted as magistrates was displayed on a screen during the
shortlisting process, regardless of the candidatesâ
race and
gender. She averred that Mr Lawrenceâs information was included in
that database and that his candidature was duly considered
by the
Committee. T
he
record pertaining to the Committeeâs deliberations in respect of
the Botshabelo reveals that during the discussion about Mr Lawrenceâs
candidature, the Committee members seemed to be talking at the same
time, as a result of which the transcription note states:
âindistinct,
everybody is talking simultaneouslyâ. Nothing is
known of what was said when the members were talking simultaneously.
It goes without
saying that one cannot speculate about what was or
was not said, which was not captured by the recording. That being the
case, it
seems somewhat unfair to conclude that Mr Lawrenceâs name
was merely mentioned but his candidature was not considered âat
allâ.
[59]
The
remaining part of the record of the Committeeâs meeting in respect
of the Botshabelo post reveals that various factors were
taken into
account when the Committee members were deliberating about this post,
including the need for candidates to have acting
and/or managerial
experience. It was not disputed that all the candidates whose names
were included in the database met the minimum
requirement of an
appropriate legal qualification and at least seven yearsâ post
qualification experience. In relation to acting
experience, the
following exchange is apposite:
â
Ms Nulliah:
When looking against our cluster establishments as a whole as well as
the office establishment in conjunction
with the needs of the
community, Botshabelo is the third largest township in South Africa.
It is predominantly Sotho speaking and
Tswana speaking. The head of
office position according to me would require acting experience and
preferably acted as a head of office
elsewhere and management
experience because as head of office you are dealing with complaints.
It must be somebody who can interact
with the people and the people
also can see that there is [representivity]. Again, it is a
predominantly African township, Sotho
and Tswana speaking and yes, we
must have a need for an interpreter in that sense, for someone to
translate, so we cannot we want
somebody of colour, preferably a
black male in that one and against our cluster establishment. .
.(intervention).â
Bearing in mind the
provisions of s 174(2) and that the same provisions are expressly
incorporated in the AP as part of the shortlisting
requirements, I am
of the view that the factors raised in the passage quoted above are
valid considerations.
[60] I
find it significant that one of the Committee members sounded the
following warning:
â
Ms September: . .
. We would not want a situation where we are going to have all males
or all blacks and so on. . . .
Chairperson: Thank
you . . . Ms September, we should also be careful and because now we
would end up having to look for a Sotho speaking
person in a Sotho
area and Xhosa and Zulu and all the others.â
This exchange, in my
view, dispels any notion of rigidity in the selection process.
[61] The
record also reveals that it was the Chairperson of the Committee who
was the first to mention the name of a white
female candidate as a
person that could be considered for that post. It seems to me that
she only backtracked after the racial composition
of that court had
been laid bare. This, in my view, does not support the contention
that the Committee was dead set on a blanket
exclusion of white
candidates in relation to the Botshabelo post.
[62] It
bears noting that under the heading â[n]otes to short-listing
procedure and criteriaâ, the AP provides as
follows: â[w]hereas
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 among any of the
formerly disadvantaged groups can be found to fill it. The decision
to re-advertise will not be taken
lightly and the impact on service
delivery at the relevant court will be balanced with the needs pf the
specific community.â According
to the appellants, preference was
given to African males because, as at the time of the shortlisting,
the complement of that court
comprised two white magistrates, one
white male and one white female. The Committee considered that since
Botshabeloâs population
was predominantly African, the ultimate
appointment of another white magistrate would thus perpetuate the
disproportionate composition
of the bench vis-Ã -vis the areaâs
demographics. In considering the appellantsâ reasoning on this
aspect, the following extra-curial
remarks of Former Chief Justice
Ngcobo, as quoted in paragraph 28 of
Singh
are, in my view,
apposite:
â
(Section 174(2))
echoes the preamble of the Constitution which declares that â[w]e
the people of South Africa believe that South
Africa belongs to all
who live in it, united in our diversityâ. The importance of
diversity to public confidence in the judiciary
cannot be gainsaid.
It underscores the principle that consideration of a broad range of
views is the surest path to sound governance
and a foundation of
democracy. Diversity on the bench promotes confidence in judges in
many ways. When a litigant comes before court
and sees from time to
time people reflective of his or her own background and experience,
it engenders confidence that he or she
can get a fair trial. It also
promotes confidence because it facilitates the taking into account of
different perspectives. In short,
âdiversity allows justice to
seeâ.â
[63]
Reverting to the facts of this case, it cannot be said that Mr
Lawrenceâs managerial or acting experience was not
taken into
account. The record shows that after his name was mentioned, it was
pointed out that he had acted as a magistrate. The
discussion then
moved to the needs of that office as well as the Cluster.
It
was also mentioned that the two magistrates who were already serving
at that court were experienced. The Committee also noted that
there
were a number of black candidates having adequate acting and/or
managerial experience.
[64]
The
record of the Committeeâs meeting reveals that, in line with the
AP, the Committee had paid due regard to the needs of the office,
the
practical managerial experience of the candidates, the racial and
gender composition of that office and the population demographics
of
the area in which the court is situated. Viewed in the context of the
appellantsâ explanation pertaining to a pressing need
for remedying
the skewed demographic representation in the Botshabelo office and in
that administrative region, I am not persuaded
that there was a
â
rigid
exclusionâ based solely on account of Mr Lawrence being a white
person.
[65]
Considering the demographic composition of that office, the
population demographics of that area, the experience
of the
candidates, including the fact that a fair number of the candidates
had sufficient acting and/or managerial experience were
available to
address the demographic needs of that office,
I
am unable to agree with the first judgmentâs conclusion that the
Committee did not balance the relevant experience, qualifications,
needs of that office and the appropriate managerial skills, and that
it instead âused race as a guillotineâ to exclude white
candidates from consideration. Similarly, I do not agree that
the
Committeeâs decision not to shortlist Mr Lawrence for the
Botshabelo post was unjustified, unfair or irrational.
Petrusburg post
[66] I
turn now to the shortlisting process followed in respect of the
Petrusburg post. As a point of departure, I emphasise
that an
exclusion based
solely
on oneâs race or gender suggests an
inflexible approach which is an affront to the provisions of s 174(2)
of the Constitution and
the AP.
[67] As
mentioned before, the appellants denied that race was used as an
absolute bar to exclude white candidates and
maintained that the
Committeeâs decision to shortlist candidates was taken after
considering the needs of the office in respect
of which a post was
advertised. The question is whether the Committee has demonstrated
this. The exchange between members of the
Committee is correctly
captured in the passage quoted in paragraph 23 of the judgment and
speaks for itself. In my view, the Committee
has not shown any
justification for excluding Mr Lawrence from the shortlist in respect
of the Petrusburg post. Having considered
the input of the cluster
head insofar as the needs of that office were concerned, I have no
hesitation in agreeing that Mr Lawrenceâs
exclusion from the
shortlist was irrational. Having said this, it would be remiss of me
not to mention an aspect that is equally
self-evident from the
transcript, and it is this: that gender representivity was not
sufficiently taken into account by the Committee
despite it being an
issue that was raised by the cluster head during the deliberations.
The following exchange is of significance:
â
MS NALIA: We have
only got six, so we can â I looked at the demographics, we can may
be look at one or two
white
females
,
but other than that we have to place, for us we have to place
emphasis also on the
coloured
and the Indian females
.
. . .
MS NALIA: . . . It
is a predominantly Afrikaans speaking community that we have there. I
looked at the community, it is a huge farming
community in
Petrusburg. Definitely as Ms van Zyl said, there is a need for a
female magistrate
as a head of court there.
UNIDENTIFIED PERSON:
Yes.
MS NALIA: Because I
do not believe that there ever [was] a
female magistrate
as a
head in that court house.
UNIDENTIFIED
PERSON: I think Mr Mchaiya was the first person of colour
there
. . .
Unidentified person:
There is [L] from the Eastern Cape.
Chairperson: Eight
years experience head of office.
Unidentified person:
No, we go ⦠(indistinct), there is nothing.
. . .
Unidentified person:
Is there any exception, we can assent to Chair with regards to [M]. .
.
[T]he problem is
that we have short listed her twice already, so we need an exception.
Chairperson: And
if
we say we take her then we are going to need persons to compare her
with and there
are no other females.
So
let us just look at males, African, coloured, Indian.â(My emphasis)
The exchange above
alludes to two black female applicants and ends with what seems to be
an odd suggestion that a female candidate
could not be shortlisted
alongside male candidates.
[68] I
have had the benefit of reading the judgment prepared by my
colleague, Ponnan JA (the third judgment). At paragraph
83, the third
judgment finds that Mr Lawrence did not seek to advance a case based
on gender discrimination and suggests that his
allusion to gender
â
was
in support of his foundational hypothesis that the resolve to exclude
all white candidates was so firm and inflexible, that even
white
females did not make the cutâ
.
An undeniable fact is that a black female was also overlooked, and
wrongly so. Mr Lawrenceâs averments speak for themselves. In
his
supplementary founding affidavit, he said:
â
From the outset
(and throughout the proceedings) it is clear as a pikestaff that the
Respondent adopted a stance best described as
inflexible and rigid in
order to effect an absolute exclusion of white male candidates (and
to a slightly lesser degree white female
candidates) from any
consideration. This absolute exclusion of the Applicant (and other
white candidates) who is a member of the
excluded designated group
affected thereby (white and male) from being shortlisted for any
vacancies in Free State cluster âAâ
(and for that matter it
occurred in Free State cluster âBâ too) was unconstitutional,
unlawful, unfairly discriminatory and amounted
to absolute exclusion
from consideration from vacancies, within the Free State clusters, of
members of the designated group solely
on the basis of race (and to a
degree gender).â
In his replying
affidavit Mr Lawrence acknowledged the exclusion of a black female
candidate as follows:
â
It is noted that
despite the âallegedâ resolution ⦠to give preference to
females of the generic black group and despite there
being suitably
qualified and experienced female candidates from such âtargetâ
group, the candidate is not shortlisted for Petrusburg
on the basis
of the Chairpersons corrupted reasoningâ¦â
It is clear from
these averments that Mr Lawrence canvassed gender discrimination and,
in the replying affidavit, specifically alluded
to the exclusion of a
black female from consideration. Notably, this is an aspect which the
court a quo considered worthy of mention
when it remarked: âthis is
discrimination in a pure form, but needs no further attention. Fact
of the matter is that no white candidates
were consideredâ.
[69]
With respect, it is difficult to understand how the consideration of
a factually correct statement that a black female
candidate was also
overlooked during the shortlisting process can be irrelevant in
relation to an application for the setting aside
of the shortlisting
process (and consequent appointments) based on the contention that
the failure to appoint a candidate was
solely
because he was âwhite and maleâ. Nothing precludes a court from
considering what is self-evident from a transcript that was admitted
into evidence. This is all the more so when litigants placed reliance
on various passages embodied in a transcript that constituted
part of
the evidence. As it was aptly stated by the majority judgment in
Helen
Suzman Foundation v Judicial Services Commission
[27]
,
âthe content of. . . deliberations can often be the clearest
indication of what the decision-maker took into account and what
it
left out of account. . .â. Bearing in mind that the appellantâs
case was that the presence of a cluster head was to advise
on the
needs of the post, among other things, it seems irrational that the
cluster headâs motivation for the post to be filled
by a female
incumbent was given short shrift, insofar as
all
female
candidates were excluded from consideration. As I see it, regardless
of how Mr Lawrenceâs pleaded case is perceived as gleaned
from his
affidavits, once it is taken into account (as it should) that even an
eligible black female candidate whose name was mentioned
was also not
shortlisted, the suggestion that â
the
resolve to exclude all white candidates was so firm and inflexible,
that even white females did not make the cutâ cannot stand.
[70]
Having considered the entire discussions of the Committee as
reflected in the record, as well as the exclusion of
all female
candidates from the shortlist, black and white, I am of the view that
to opine that race was âan absolute exclusionâ
or that there was
âa naked preferenceâ for a particular race would not be an
accurate encapsulation of what ultimately transpired
in relation to
the Petrusburg post.
[71]
From my point of view, lip service was paid to the constitutional
imperative of gender transformation notwithstanding
that the systemic
exclusion of women from the legal profession was one of the historic
imbalances that s 174(2) aimed to redress.
The failure of the
Committee to engage with this important constitutional imperative is
one of the aspects that show that the Committee
did not sufficiently
take the needs of the Petrusburg office into account.
[72]
While one must be cautious not to be prescriptive to a selecting
Committee, I am of the view that given the weighty
consideration of
gender representivity there can be no rational reason why female
candidates of any race could not have been included
in the pool of
shortlisted candidates. Doing so would have been a step in the
direction of fulfilling the equally important imperative
of gender
transformation. This is all the more so because the post in question
had previously been occupied by a black male, thus
advancing racial
transformation.
[73]
For all the reasons mentioned above, I am of the view that the
approach adopted by the Committee in relation to the
Petrusburg post
was, on the whole, rigid, and ought to be set aside.
[74]
I have already indicated that I agree that the Committee did not form
a quorum during the shortlisting process pertaining
to the
Bloemfontein posts, and that its decision was therefore a nullity.
On
that basis alone, the shortlisting process in relation to the
Bloemfontein posts ought to be set aside.
[75] For
all the reasons set out above, I would grant the order proposed in
the first judgment, but would not set aside
the shortlisting and
consequent appointment made in respect of the Botshabelo post.
M B MOLEMELA
JUDGE OF APPEAL
Ponnan JA
(Saldulker and Van der Merwe JJA and Potterill AJA concurring)
[76] I
have read the judgments prepared by Potterill AJA (the first
judgment) and Molemela JA (the second judgment). I
feel constrained
to write separately in response to the second judgment.
[77]
Like the court below, the first judgment upholds Mr Lawrenceâs
claim in relation to all three magisterial districts.
The second
judgment agrees with the first that because the Committee was not
quorate, the Bloemfontein shortlisting process is a
nullity and falls
to be set aside. However, it appears to part ways in respect of
Botshabelo and Petrusburg. As to Botshabelo: the
second judgment
takes the view that âit cannot be rightly concludedâ (as the
first judgment does), that the process adopted was
rigid, inflexible
and quota driven and would, accordingly, dismiss Mr Lawrenceâs
claim on that score. As far as Petrusburg
goes, the second judgment
appears to agree with the first that the decision of the Committee to
exclude Mr Lawrence cannot stand,
because of the apparent failure by
the Committee to afford proper recognition to âthe weighty
consideration of gender representivityâ.
[78]
At the outset it may be important to restate certain basic tenets:
(i) in exercising the judicial function,
judges are themselves
constrained by the law; (ii) judgments should be confined to the
issues before the court; (iii) courts should
avoid deciding matters
that are not relevant; (iv) it is not for a court to create new
factual issues; and (v) courts must distinguish
between allegation,
fact and suspicion.
[28]
[79]
To borrow from Wallis JA in
Fischer
and Another v Ramahlele
:
â
Turning then to
the nature of civil litigation in our adversarial system it is for
the parties, either in the pleadings or affidavits,
which serve the
function of both pleadings and evidence, to set out and define
the nature of their dispute and it is for the
court to adjudicate
upon those issues. That is so even where the dispute involves an
issue pertaining to the basic human rights
guaranteed by our
Constitution, for âit is impermissible for a party to rely on a
constitutional complaint that was not pleadedâ. There
are
cases where the parties may expand those issues by the way in which
they conduct the proceedings. There may also be instances
where
the court may
mero
motu
raise
a question of law that emerges fully from the evidence and is
necessary for the decision of the case. That is subject
to the
proviso that no prejudice will be caused to any party by its being
decided. Beyond that it is for the parties to identify
the
dispute and for the court to determine that dispute and that dispute
alone.
It is not for the
court to raise new issues not traversed in the pleadings or
affidavits, however interesting or important they may
seem to it, and
to insist that the parties deal with them. The parties may have
their own reasons for not raising those issues.
A court may sometimes
suggest a line of argument or an approach to a case that has not
previously occurred to the parties. However,
it is then for the
parties to determine whether they wish to adopt the new point. They
may choose not to do so because of its implications
for the further
conduct of the proceedings, such as an adjournment or the need to
amend pleadings or call additional evidence. They
may feel that their
case is sufficiently strong as it stands to require no
supplementation. They may simply wish the issues already
identified
to be determined because they are relevant to future matters and the
relationship between the parties. That is for them
to decide and not
the court. If they wish to stand by the issues they have
formulated, the court may not raise new ones or compel
them to deal
with matters other than those they have formulated in the pleadings
or affidavits.
This last point is
of great importance because it calls for judicial restraint. . .
.â
[29]
[80] As
Howie JA pointed out in
Western Cape Education Department v
George
:
â
.
. . it is desirable that any judgment of this Court be the product of
thorough consideration of,
inter
alia
,
forensically tested argument from both sides on questions that are
necessary for the decision of the case.â
[30]
Equally
important, what binds a lower court is only the ratio of the decision
of a higher court and not what might be said
en
passant
.
Schreiner
JA put it thus in
Fellner
v Minister of the Interior
:
â
The decision or
judgment, in the sense of the Courtâs order, by itself only
operates, of course, as between the parties; it can
only state law in
so far as it discloses a ruleâ.
[31]
[81] I
have some difficulty with what, I venture, may be described as the
piecemeal approach that the second judgment
takes to the evidence in
the matter. This has resulted in both an acceptance, as also a
rejection, of certain parts of each partyâs
case. The second
judgment also calls in aid certain statistics that formed no part of
either partyâs case. In that, it strays beyond
the confines of the
appeal record. Even accepting that we can take judicial notice of
those statistics, their relevance, dating back
over two decades as
they do and, which is directed at a point that does not squarely
arise in the appeal, is doubtful.
[82] As
best as can be discerned, the resort to the statistics, as also the
approach and the reasoning adopted by the
second judgment, appears to
misconstrue the nature of the case that serves before us on appeal.
Mr Lawrence did not seek to impugn
the applicable regulations or AP.
Rather he challenged the manner in which the Committee and the other
appellants interpreted and
applied those provisions. The validity of
the framework for the appointment of magistrates, being s 174 of the
Constitution, Regulation
5 of the regulations and the AP is,
therefore, not an issue before this Court.
[83]
What is more, Mr Lawrence did not seek to advance a case based on
gender discrimination. Nor, being a male candidate,
could he have
advanced such a case. His case, as I understand it, is that he had
been excluded
ante omnia
, so to speak, because he was a white
male. To the extent that gender was alluded to by him, it was in
support of his foundational
hypothesis that the resolve to exclude
all white candidates was so firm and inflexible, that even white
females did not make the
cut.
[84] The
official response to Mr Lawrence from the Secretary of the Committee
was:
â
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.â
Section 174(2)
reads:
â
The
need for the judiciary to reflect broadly the racial and gender
composition of South Africa must be considered when judicial officers
are appointed.â
[85] The
Committee thus relied exclusively on the attainment of race and
gender transformation as the justification for
having excluded Mr
Lawrence from consideration. The second judgment opines that âlip
service was paid to the constitutional imperative
of gender
transformationâ. That must mean that one of the legs relied upon by
the appellants in resisting Mr Lawrenceâs claim
cannot be
sustained. Moreover, the finding that âlip service was paid to the
constitutional imperative of gender transformationâ,
in and of
itself, ought to render the entire shortlisting process
constitutionally indefensible.
[86] To
my mind, the shortlisting for each magisterial district can and
should not be approached as hermetically sealed
enquiries. This is
because the consideration of candidates for each district was, in
truth, part and parcel of one shortlisting process.
As pointed out in
the answering affidavit filed on behalf of the appellants:
â
Members
of the Committee and the Chief Magistrates or Cluster Heads, as they
are called, for the 14 Administrative Regions are invited
to the
meeting. The Cluster Heads have no voting rights. Their purpose at
the meeting is to advise the Committee of the needs of
the Cluster in
general as well as the needs of each individual office where posts
were advertised.â
[87] The
Committee commenced with its deliberations for the Free State cluster
on Friday 18 January 2019. The shortlisting
process continued on
Monday 21 January 2019, after the intervening weekend.
At the commencement of the process, the
following is recorded:
â
CHAIRPERSON
:
Thank you. You can take us through your province first Ms Nalia, tell
us what you have, how many race break up and then go down
to the
office that you will be dealing with and what you think would be
appropriate, what do you need.â
At the relevant time
Ms Nalia was the Chief Magistrate and Cluster Head.
[88] The
following from the record shows that the Committee did not itself
approach the shortlisting for each magisterial
district as discreet
enquiries:
â
UNIDENTIFIED
PERSON
:
We parked Skosana for the Free State, so we can look at him now.
CHAIRPERSON
:
Oh yes. We know him?
UNIDENTIFIED
PERSON
:
Yes, he is our Secretary-general, but apparently from Buthatswaba a
very highly well regarded in terms of civil experience as well,
Skosana.
CHAIRPERSON
:
Okay.
UNIDENTIFIED
PERSON
:
But I would prefer you to . . . (indistinct) if you will give him the
opportunity.
CHAIRPERSON
:
Let us now place him, because he has already been short listed
previously.
MS NALIA
:
Okay.
CHAIRPERSON
:
Prieska Mafotlha.
UNIDENTIFIED
PERSON
:
He has been short listed in Mpumalanga.
CHAIRPERSON
:
Okay, Mafothla?
UNIDENTIFIED
PERSON
:
Short listed in Northern Cape.
UNIDENTIFIED
PERSON
:
Northern Cape. Let me just see how many times.
UNIDENTIFIED
PERSON
:
(Person talking in the background).
CHAIRPERSON
:
Jan Kempdorp.
UNIDENTIFIED
PERSON
:
Twice as well as acting . . . (intervention).
CHAIRPERSON
:
Okay, Ghabisi.
UNIDENTIFIED
PERSON
:
It is the same one?
CHAIRPERSON
:
Yes, just been short listed. Acting in Ficksburg.
UNIDENTIFIED
PERSON
:
He is acting in Ficksburg, but we can . . . (intervention)
CHAIRPERSON
:
If there is no other acting. Let us just check the actings. Can we
just go down Simani? Okay, he has been short listed. Katye has
been
short listed. I am not sure I have got that surname.
UNIDENTIFIED
PERSON
:
I am checking him now, because I also do not remember him. He was
short listed in Limpopo.â
[89] In
respect of this particular cluster, the Committee commenced with
Ficksburg, before proceeding to a consideration
of Botshabelo,
Petrusburg and Bloemfontein. Insofar as Ficksburg is concerned, this
is how the shortlisting process commenced:
â
CHAIRPERSON
:
We already have two coloured males, why do we not look at coloured
female, Indian male and Indian female?
MS
NALIA
:
That works with us.
CHAIRPERSON
:
Start there and then if we do not get the number, the required number
then we fall back to coloured male.
UNIDENTIFIED
PERSON
:
Well, you can go coloured.
CHAIRPERSON
:
Coloured female and Indian male and Indian female.
UNIDENTIFIED
PERSON
:
Yes okay.â
[90] The
Committeeâs targeted approach to Ficksburg set the tone for what
was to follow in respect of Botshabelo, Petrusburg
and Bloemfontein.
It is indeed so that it was stated in the answering affidavit filed
on behalf of the appellants that the âprocess
is implemented in a
nuanced and flexible manner and there is no bar to shortlisting of
white malesâ, but that is not borne out
by the record, which is
where we need look for the real reasons for the decision.
[91]
The fixed resolve to exclude any and all white candidates on account
of their race is clear. The
refrain,
as the following excerpts from the record reveal, was a repeated and
persistent one:
â
I
am of the view that if we have 17 white persons in the province
already, that is enough
â
;
â
I think that
three [white male magistrates] is enough for nowâ;
â
Ja, No we are not
looking for white males in your cluster at allâ;
â
Anything you need
except for whiteâ;
â
Not
white. Just female, but not white
â
;
â
. . . Female
whites, are we not accepting? No.â;
â
If
we can find more of the other two races that are lacking then we do
not consider any white personâ;
â
Take
away the white. Take away the whiteâ; and âNo, we are not looking
for white males in your cluster at allâ.
[92] As
a result of this approach Mr Lawrenceâs application was not
considered at all. Instead, his candidacy was dismissed
out of hand
solely on the basis that he was a white male. The second judgment
points to the fact that the information of all of the
candidates was
condensed and displayed on a screen as support for the proposition
that Mr Lawrenceâs candidature was considered.
However, the record
shows that when it came to candidates who did not fall within the
group targeted for exclusion, the Committee
did not merely content
itself with the information that was displayed on the screen.
[93] The
following from the record is illustrative of the approach taken to
those candidates who were targeted for inclusion:
â
MS NALIA
:
Mr Steyn is currently the acting head of court at Moorreesburg which
we have advertised, so he will be short listed there. B.Jus
LL.B,
district court prosecutor four years, Regional Court prosecutor seven
months. Relief prosecutor two years and three months.
He was then a
magistrate for 12 years and nine months. Resigned in 2014. Was an
advocate for three years and ten months. Acted as
magistrate for two
months and then again for two years and two months. Has been acting
as head of court Moorreesburg since 2018.
CHAIRPERSON
:
Reasons for resignation.
MS NALIA
:
A22 please?
UNIDENTIFIED
PERSON
:
Madam Chair, this Moorreesburg where is it?
MS NALIA
:
Western Cape.
UNIDENTIFIED
PERSON
:
Oh, Western Cape.
MS NALIA
:
It was supposed to be advertised, the one which is acting. He doesn't
indicate why, just went to private practise.
CHAIRPERSON
:
Do we consider him?
MS NALIA
:
He has got [lots] of experience.
CHAIRPERSON
:
[Lots] of experience.
MS NALIA
:
Yes.
CHAIRPERSON
:
Steyn is in.
MS NALIA
:
That is our forth one.
CHAIRPERSON
:
Looking for the fifth one. Cupido has been short listed how many
times?â
[94] In
contrast, this is what happened when Mr Lawrenceâs name came to be
mentioned in respect of Botshabelo:
â
UNIDENTIFIED
PERSON
:
There is a Mr Lawrence from Petrusburg, but I think he must be
acting. . . .
MS NALIA
:
If I may, I do not know if I am allowed to interfere.
CHAIRPERSON
:
Yes.
MS NALIA
:
Our cluster has 11 white males. I was also looking at it against the
cluster establishment. Given the numbers that we have, the
low
numbers that we have in terms of coloured males, Indian males in the
cluster and given the needs of that community, especially
Botshabela.
CHAIRPERSON
:
Yes?
MS NALIA
:
We have, there is a need, there is existing â if I may just give
you a compliment [complement] of that office.
CHAIRPERSON
:
Before we go there, we are to consider people who have for instance
will not be . . . (indistinct). We just need to know who has
applied
and then we will see if the person fits.
MS NALIA
:
Mr Lawrence is . . . .(intervention)
CHAIRPERSON
:
Not necessarily that the person . . . (indistinct, everybody is
talking simultaneously).
MS NALIA
:
Acting magistrate.
UNIDENTIFIED
PERSON
:
Mr Lawrence is not a magistrate, he is an acting magistrate.
MS NALIA
:
Acting magistrate.â
[95] As
the following from the record shows, it did not get any better when
Mr Lawrenceâs name was raised in respect
of Petrusburg:
â
CHAIRPERSON
:
. . . Which is the next office?
MS NALIA
:
Petrusburg.
. . .
CHAIRPERSON
:
Petrusburg, okay.
MS NALIA
:
This position was previously occupied initially by as I remember Mr
Mchaiya and then he was â came through to Bloemfontein and
acting
magistrate Mr Lawrence has been there, but as I indicated earlier our
cluster establishment, we are sitting with 11 white
males at
presently.
CHAIRPERSON
:
No, we are not looking for white males in your cluster at all.
MS NALIA
:
All right.
CHAIRPERSON
:
And even females, how are your white females?
MS NALIA
:
We have only got six, so we can â I looked at the demographics, we
can maybe look at one or two white females, but other than
that we
have to place, for us we have to place emphasis also on the coloured
and the Indian females.
â
[96] The
difference in approach by the Committee when considering the
candidacy of someone, on the one hand, like Mr Steyn
(who had not
been targeted for exclusion) and, on the other, someone like Mr
Lawrence (who had been targeted for exclusion), is patent.
It calls
the lie to the assertion in the answering affidavit
that
the âprocess is implemented in a nuanced and flexible manner and
there is no bar to shortlisting of white malesâ. In argument,
counsel for the appellants was invited to point us to anywhere in the
record where Mr Lawrenceâs candidacy received, even remotely,
the
same consideration as the candidates who had made the shortlist. He
could not.
[97] The
record is thus clear enough. It is, accordingly, not necessary to
speculate, as the second judgment purports
to do, as to what may or
may not have been said. When Mr Lawrence launched his application, he
did not have to hand the administrative
record. After the record had
been filed by the appellants, Mr Lawrence filed a comprehensive
supplementary affidavit.
When
an applicant in review proceedings files a supplementary affidavit,
after having had sight of the record, he is in effect fully
stating
his case for the first time.
[32]
The administrative
record is usually necessary for a court to undertake the task of
determining the regularity of the administrative
action sought to be
impugned.
[33]
It helps shed light on what happened, why it happened and it
may undermine
ex
post facto
justifications
offered by the decision-maker of the decision under review.
[34]
[98] The
second appellant, the Regional Court President for the Free State,
who chaired the Committee, deposed to what
was styled an âanswering
affidavit to the supplementary founding affidavitâ. Neither she,
nor any of the other deponents took
issue with the accuracy of the
record. Mr Lawrence made fairly extensive reference to the record in
his supplementary founding affidavit.
Those allegations barely
elicited an answer. Instead, the second appellant responded with
vague, generalised responses. In those
circumstances, it hardly seems
fair for the second judgment to hold that ânothing is known of what
was said when the members were
talking simultaneouslyâ. What was
said, would certainly have been known to the second appellant. No
doubt, if favourable to the
appellants, that would have been placed
before the court. In particular, there was no suggestion by any of
the appellants that anything
meaningful was, in the words of the
second judgment, ânot captured by the recordingâ.
[99] It
bears emphasis that the appellants are no ordinary litigants. This
matter calls into question the legitimacy of
the appointment process
for magistrates, Over and above that, the allegations raised, in the
final analysis, are levelled against
magistrates; senior ones at
that, who may well have a âhigher duty to respect the lawâ. After
all, none of the appellants can
be described as â. . . an indigent
and bewildered litigant, adrift in a sea of litigious uncertainty, to
whom the courts must extend
a . . . lifeline. . . .â.
[35]
[100] The
Committeeâs emphasis on race to the exclusion of all else is
further evinced later in the record in the following
exchange when
Petrusburg was being considered:
â
CHAIRPERSON
:
Not white. Just female, but not white.
MS NALIA
:
In that position?
CHAIRPERSON
:
Yes.
MS NALIA
:
Then we are looking definitely at - but then I was looking at - but
as you said we have got to be very careful about the interpreter.
So
I am going to take that into account.
UNIDENTIFIED
PERSON
:
Take away the white.
MS NALIA
:
All right.
UNIDENTIFIED
PERSON
:
Take away white.
MS NALIA
:
Sorry?
UNIDENTIFIED
PERSON
:
(Person talking in the background).
MS NALIA
:
The reason I stated white female was because, but you have given me a
little bit of insight as to how to proceed. I looked at the
Afrikaans
community. It is â but when I say Afrikaans, it is the Sothos and
Tswanas that speak, they speak Afrikaans and the court
setup
etcetera, that is what I looked at.
CHAIRPERSON
:
We are also looking for experience maâam.
MS NALIA
:
We are also looking for experience. Acting experience and managerial
experience. So are we out of white positions?
CHAIRPERSON
:
And also if there are transfer.
MS NALIA
:
Female whites, are we not accepting?
UNIDENTIFIED
PERSON
:
No.
MS NALIA
:
All right.
UNIDENTIFIED
PERSON
:
We have to look at females of colour for your managerial positions.
â
[101] The
record thus shows that what occurred was indeed ârigid, inflexible
and quota-drivenâ. The blanket exclusion of
white candidates, no
matter their strengths, is disconcerting. No white candidate was
considered for Bloemfontein either. Regrettably,
not even excellence
could open the door to the consideration of a white candidate. And,
as the following excerpt shows, even when
the Committee began to run
out of candidates from the group targeted for inclusion, it was
unwavering in its commitment:
â
CHAIRPERSON
:
. . . We are running out of â let us go down. May be we might find
a . . . (intervention).
UNIDENTIFIED
PERSON
:
Indians and coloureds.
CHAIRPERSON
:
Anything you need, except for white.
MS NALIA
:
Thank you, okay.
. . .
UNIDENTIFIED
PERSON
:
No, we go . . . (indistinct), there is nothing.
CHAIRPERSON
:
So what do we do. You are looking for coloured males, coloured
Indian, African males.
UNIDENTIFIED
PERSON
:
Experience. The problem is experience.
CHAIRPERSON
:
Experience yes, because one person station and head office. So we
cannot take . . . (intervention)
MS NALIA
:
And if I may Chair amongst the women that we saw there, that both may
be yourself and myself know of some people that notwithstanding
you
might be able to still offer them that position because of the
knowledge you might have of the relevant persons.
CHAIRPERSON
:
From Natalieâs side we do not know anyone?
MS NALIA
:
Nothing from that list then. The person that I thought would be a
good candidate, but we said it cannot be a white female.
CHAIRPERSON
:
Yes.â
This exchange
demonstrates a fixed resolve on the part of the Committee to exclude
all white candidates. Nothing else mattered, even
when the cupboard
was bare. The conclusion is thus inescapable that the Committee
plainly used race as a disqualifying criterion.
[102] In any
event, the asserted reliance by the appellants on s â174-criteriaâ,
may, in itself, demonstrate the fallacy
in the Committeeâs
approach. Unlike the s 174(1) requirements, such as fitness and
propriety, which operate as prerequisites, s
174(2) of the
Constitution cannot be invoked as a self-standing basis for
exclusion. It follows that the starting point of the enquiry
did not
accord with the overall legislative scheme and consequently the
Committeeâs admitted process was flawed. Section 174 of
the
Constitution employs the phrase âbroadly representativeâ. Nothing
in the legislative scheme permits the targeted exclusion
of white
candidates from consideration. And, yet this was precisely what
happened in this case.
[103] The
Court below took the view that:
â
In the process
the Committee failed to adhere to its own policy in that it did not
consider the candidature of all applicants whose
applications were
compliant. White people and [Mr Lawrence] in particular was not
considered at all.â
It accordingly
concluded that:
â
Insofar as the
Committee acted as a gatekeeper, preventing any whites to be
interviewed, it lost the opportunity to duly consider
whether [the]
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.â
In that, it cannot
be faulted.
[104] In my
view, the overall approach of the Committee is not consistent with
the proper interpretation and application of
s 174 of the
Constitution, regulation 5 of the Regulations or the AP. Rather than
considering race as but one of the factors to be
taken into account,
the Committee repeatedly excluded candidates solely on the basis of
their race. That rigid and unwavering approach
had the effect of
eliminating Mr Lawrence from consideration. The rigidity of the
approach (a rigidity that is generally eschewed
by our courts) and
failure to have regard to any factor other than race was thus both
unlawful and unconstitutional.
[105]
In conclusion, it is perhaps necessary to record that there can be no
quarrel with the transformational imperatives enshrined
in our
Constitution, which most, if not all of us, surely embrace. But, that
is not what this case is about. It is about the process
employed in
pursuit of those laudable aspirational goals, which, as I have
endeavoured to demonstrate, does not withstand scrutiny.
For, even
restitutionary
measures, that are vital to our transformative constitutional
project, should be approached in a nuanced, flexible
and balanced
manner.
V M PONNAN
JUDGE OF APPEAL
Appearances:
For
appellants
:
D
J Groenewald
Instructed by:
State
Attorney,
Pretoria.
State
Attorney, Bloemfontein.
For
respondent:
M
du Plessis SC with T Palmer and S Mdletshe
Instructed
by:
Power
Singh Inc, Johannesburg.
Frank
Botha Attorneys, Bloemfontein.
For amicus curiae:
B Winks
Instructed
by:
Webber
Wentzel Attorneys, Sandton.
Symington De Kok
Attorneys, Bloemfontein.
[1]
Association of Regional
Magistrates of Southern Africa v President of the Republic of South
Africa and Others
[2013]
ZACC 13
;
2013 (7) BCLR 762
(CC) para 63.
[2]
Helen Suzman Foundation v
Judicial Service Commission
[2018] ZACC 8
;
2018 (4) SA 1
(CC) para 67.
[3]
De Vries and Others v Eden
District Municipality and others
[2009] ZAWCHC 94
para 38;
Judicial
Service Commission and Another v Cape Bar Council and Another
[2012] ZASCA 115
;
2013 (1) SA 170
(SCA) para 20.
[4]
Regulations
for Judicial Officers in Lower Courts, 1994 GN R361,
GG
15524,
11 March 1994.
[5]
Solidarity and Others v
Department of Correctional Services and Others
[2016]
ZACC 18
;
2016 (5) SA 594
(CC) para 57.
[6]
South African Police Service
v Solidarity obo Barnard
[2014] ZACC 23; 2014 (6) SA 123 (CC).
[7]
The text of s 174 of the
Constitution is set out in para 13 of the judgment.
[8]
Justice Lex Mpati is reported to
have stated this at his inaugural lecture at the University of the
Free State, and to have elaborated
on that statement as follows:
To
achieve the objectives of the Constitution we [the judiciary] need
to strike a balance â gender and race representivity on
the one
hand, and competence, integrity and skill on the other.â
[9]
Compare
Premier
of the Western Cape Provincial Government NO v Lakay
[2011] ZASCA 224
;
2012 (2) SA 1
para 17;
Helen
Suzman Foundation v Judicial Service Commission
[2018] ZACC 8
;
2018 (4) SA 1
(CC) para 68.
[10]
The preamble recognises âthe
injustices of our pastâ and aims to, inter alia, âheal the
divisions of the pastâ.
[11]
Minister of Finance v van
Heerden
[2004] ZACC 3
;
2004 (6) SA
121
(CC),
2004 (11) BCLR 1125
(CC) para 22
(van
Heerden)
.
[12]
In his book âJustice, a
Personal Accountâ at 238, Justice Edwin Cameron posits that s 9(2)
of the Constitution âwas necessary
because . . . it was designed
to bring healing and repair to a very un-virgin landscape â one
ravaged by a past that for centuries
had deliberately and
exclusively privileged whitesâ.
[13]
Chief Justice, Supreme Judicial
Court, Commonwealth of Massachusetts, as quoted in a paper delivered
at a symposium marking former
Chief Justice Chaskalsonâs
retirement in South Africa in 2006, published in âA Delicate
Balanceâ, edited by Jonathan Klaaren
at 26.
[14]
van Heerden
para
26.
[15]
Minister of Finance v van
Heerden
para 31.
[16]
Minister of
Constitutional Development and Another v South African Restructuring
and Insolvency Practitioners Association and Others
[2018]
ZACC 20
;
2018 (5) SA 349
(CC);
2018 (9) BCLR 1099
(CC) para 1.
[17]
In her article titled âWomen
as a Sign of the New? Appointments to South Africaâs
Constitutional Court since 1994â, published
online by Cambridge
University Press, Rachel E. Johnson posits that given the
composition of the judiciary prior to the advent
of democracy (it is
common cause that it was dominated by white males) the stipulation
in s 174(2) that the judiciary should reflect
broadly the racial and
gender composition was intended push for a more diverse judiciary
was shaped by a number of overlapping
and contesting agendas, which
included the need for a renewal of judicial legitimacy and
authority. The provisions of s 174(2)
was thus aimed at ensuring
that the courts could be considered to be inclusive.
[18]
Singh v Minister of Justice
and Constitutional Development and Others
2013 (3) SA 66
(EqC); (2013) 34 ILJ 2807 (EqC) para 25.
[19]
â
Judging in a democracy: the
challenge of changeâ, quoted from a speech delivered by Langa DCJ
in Johannesburg on 20 March
2004 (prior to his appointment as
the second Chief Justice of South Africa), as quoted by S Mothupi
Codicillus
Volume 47 No 2 2006 ISSN 0010-020X © Unisa Press at 1-14.
[20]
These statistics are included
for purposes of giving context to the courtâs allusion to âthe
history of South Africaâ as quoted
in paragraph 25 of
Singh
.
It must be noted, however, that the appellants asserted that as at
the time of the impugned shortlisting process, â[w]hite males
[were] by far the most âover-representedâ group (25 years after
the dawn of [South Africaâs] democracy)â.
[21]
Despite a diligent search, the
statistics in relation to the demographic composition in the
Magistracy as at 27 April 1994 could
not be found.
[22]
South African Police Service
v Solidarity obo Barnard
[2014]
ZACC 23; 2014 (6) SA 123 (CC).
[23]
Minister
of Finance v van Heerden
para
44.
[24]
Du Preez v Minister of
Justice and Constitutional Development and Others
2006 (5) SA 592
(E) para 30.
[25]
Para 24 of the judgment.
[26]
Helen Suzman Foundation v
Judicial Service Commission
[2018] ZACC 8
;
2018 (4) SA 1
(CC) para 23.
[27]
Helen Suzman Foundation v
Judicial Service Commission
[2018] ZACC 8
;
2018 (4) SA 1
(CC) para 19.
[28]
National
Director of Public Prosecutions v Zuma
[2009]
ZASCA 1
;
2009
(2) SA 277
(SCA);
2009
(1) SACR 361
(SCA);
2009
(4) BCLR 393
(SCA);
[2009]
2 All SA 243
(SCA) paras
15 and 16.
[29]
Fischer
and Another v Ramahlele and Others
[2014] ZASCA 88
;
2014 (4) SA 614
(SCA);
[2014] 3 All SA 395
(SCA)
paras 12-15.
[30]
Western
Cape Education Department and Another v George
[1998] ZASCA 26
;
[1998]
2 All SA 623
(A);
1998
(3) SA 77
(SCA)
at 84E.
[31]
Fellner
v Minister of the Interior
[1954]
4 All SA 304
(A);
1954
(4) SA 523
(A)
at 542D-E.
[32]
City of Cape Town v South
African National Roads Authority Limited and Others
[2015]
ZASCA 58; 2015
(3) SA 386
(SCA);
[2015]
2 All SA 517
(SCA);
2015
(5) BCLR 560
(SCA)
paras
35-37.
[33]
Democratic Alliance and
Others v Acting National Director of Public Prosecutions and
Others
[2012]
ZASCA 15
;
[2012]
2 All SA 345
(SCA);
2012
(6) BCLR 613
(SCA);
2012
(3) SA 486
(SCA)
para 37.
[34]
Turnbull-Jackson
v Hibiscus Coast Municipality
[2014]
ZACC 24
;
2014
(6) SA 592
(CC)
;
2014
(11) BCLR 1310
(CC)
para 37.
[35]
MEC for
Health, Eastern Cape and Another v Kirland Investments (Pty)
Ltd
[2014]
ZACC 6
;
2014 (5) BCLR 547
(CC);
2014
(3) SA 481
(CC)
para 82.