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[2013] ZAEQC 1
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Singh v Minister of Justice and Constitutional Development and Others (57331/2011) [2013] ZAEQC 1; 2013 (3) SA 66 (EqC); (2013) 34 ILJ 2807 (EqC) (23 January 2013)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT
C
AS1 NO: 57331.2011
DATE:23/01/2013
In
the matter between:
PARVATHI
SINGH
…............................................................................
Complainant
and
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
.................................................
First
Respondent
THE
DIRECTOR GENERAL FOR
THE
DEPARTMENT OF JUSTICE &
CONSTITUTIONAL
DEVELOPMENT
................................................
Second
Respondent
MAGISTRATES
COMMISSION
...........................................................
Third
Respondent
JUDGMENT
Ledwaba
J:
[1]
On the 13th of January 2012 I made the following order:
“
[1]
The previous interim order that the respondents should not continue
with the interview and or appoint any shortlisted candidate
as entry
level Magistrate lapses and is substituted with the following final
order
1.1
The respondent may immediately continue with the process to interview
and/or appoint suitable short-listed candidate(s) as Magistrates
in
respect of the +- 51 posts at the following places George (2 posts).
Laingsburg (Head of office). Paarl (1 post). Giyane (1
post), Naphuno
(1post), Thabazimbi (Head of office), Vuwam (1 post). Mokopane (1
post), Bochum (1 post). Upington (1post). Mmabatho
(1 post). Mogwase
(1 post). Rustenburg (2 posts). Bloemhof (Head of office). Atamelang
(1 post). Madikwe (Head of office). Odi
(1post). Middelburg (1 post),
Lydenburg (Head of office). White River (Head of office), Belfast
(Head of office ). Eeerstehoek
(Head of office). Madademi (1 post).
Howick (1 post). Hlanganani (1 post). Glencoe (1post), Hammersdale
(Head of office), Camperdown
(1 post). Richmond (Head of office ).
Tembisa (1 post). Brakpan (1 post). Pretoria (3 post), Bulfontein
(Head of office), Warden
(Head of office). Hoopstad (Head of office).
Virginia (Head of office). Zastron (Head of office). Selosesha (2
posts). Port St
Johns (Head of office). Port St
Johns
(1 post), Libode (1 post). Tsomo (Head of office). Mount Pierre
(1post), Queenstown (2 post) and Port Bedford (Head of office).
[
1]
The criteria used by the 3rd Respondent in short listing candidates
for posts as entry level Magistrates and the application
thereof at
the following places: Mitchels Plain, East London. Stellenbosch,
Strand. Benoni, Pretoria North, Johannesburg, Germiston,
and
Krugersdorp was unfairly discriminatory in that the applicant's
(complainant) gender and/or disability was not appropriately
considered when the short-listing was done by the 3rd Respondent.
[2]
The respondents are directed to reconsider the short-listing of the
candidates shortlisted in respect of the aforesaid twenty
three (23)
posts mentioned in the 11 places, in order 2 above, and to reconsider
the application of the applicant in respect of
the aforesaid posts
fairly having regard to her gender disability and other relevant
factors. Respondents should specifically and
seriously have regard to
the provisions of section 174 and section 9 of the Constitution of
the Republic of South Africa Act 108
of 1996 and the
Promotion of
Equality and Prevention of Unfair Discrimination Act 4 of 2000
together with the protocols signed by the Government of the Republic
of South Africa dealing with promoting the position of disabled
people.
[3]
The reconsideration and short-listing of candidates for entry level
Magistrates in respect of the twenty three (23) posts at
the 11
places
mentioned
in order 2 above is to be finalized by the 3fd Respondent within 30
days from the date of this order and thereafter the
Respondents
should continue with the process of interview and/or appointments in
respect of the said posts,
[5]
The respondents are further directed to revise their criteria used
for short-listing and appointments of Magistrates so that
it should
clearly reflect that the provisions of
section 174
(2) read with
section 9 of the Constitution will be taken into consideration in the
short-listing and appointment processes further
more, in the
application form for position as Magistrate the disclosure of whether
a person is disabled or not is to be clearly
enquired as it is done
with gender and race.
[6]The
respondents are directed, within ten (10) months of the date of this
order to make a formal and comprehensive statement of
policies and
criteria to be used and/or applied in short-listing, evaluation and
appointment for positions as Magistrates which
policies and criteria
must clearly mention that the provisions of section 174 (2) and
section 9 of the Constitution will be taken
into consideration in the
short-listing and the filling of the posts.
[7]
The respondents are jointly and severally ordered to pay the
complainant (applicant) 75% of her costs including the wasted costs
of the 27th of October 2011 and 14th of December 2011.
[8]
No
order of costs is made against the respondents, in favour of
the amici and vice versa. ”
[2]
When I made the order the reasons for my order were to be given later
I regret that it took almost a year to give my reasons,
however the
work load and the need to finalize judgments in other matters that I
dealt with during the year contributed to the
delay.
[3]The
complainant in terms of the amended notice of motion sought the
following relief:
"1.1
An order declaring this matter to be urgent and condoning the
Complainant's failure to comply with the forms, the periods
and
service required by the Rules of Court;
1.2
An order interdicting the Respondents from appointing any
short-listed candidates as entry level magistrates pending the final
determination of this matter;
1.3
An order directing the Respondents to interview and evaluate the
Complainant for the entry level magistrates positions for
which she
applied on or about 13 December 2010;
1.4
Orders;
1.4.1
granting the Complainant leave to file supplementary affidavits
dealing with the record of the Third Respondent's decision
in respect
of the short-listing of candidates for entry level magistrates
positions, on or before Monday. 12 December 2011; and
1.4.2
regulating the further conduct of this matter.
Final
Relief
2.
The Complainant seeks the following final orders:
2.1
Declaring that the criteria used by the Respondents in short-listing
candidates for posts as entry level magistrates, and/or
the
application of those criteria with regard to the Complainant, are
unfairly discriminatory:
2.2
Declaring that the criteria used by the Respondents for appointing
candidates as entry level magistrates are unfairly discriminatory:
2.3
Directing the Respondents to revise the criteria used for
short-listing and appointing entry level magistrates so as to
recognise
and take into account the existence of systematic
discrimination and inequalities in respect of disability:
2.4
Directing the Respondents to revise the criteria used for the
short-listing and appointment of candidates for entry level
magistrates
posts so that the merits of every application are fairly
considered.
2.5
Directing the Respondents to reconsider all pending applications for
entry level magistrates posts in light of the revised criteria:
2.6
Directing the Respondents, within six months of the date of this
order
to
publish a formal and comprehensive statement of the policies and
criteria to be applied in short-listing and evaluating candidates
for
positions as judicial officers in the lower courts:
2.7
Directing the Respondents to pay the costs of this claim, jointly and
severally; and
2.8
Granting further and/or alternative relief."
[4]
On 27 October 2011, it seems, as it was agreed by the parties
Bertelsmann J made an order in the following terms.
"1.
The First Respondents undertakes not to appoint any short-listed
candidates as entry level magistrates before 31 December
2011
2
The Respondents undertake not to finalise the process of evaluating
the candidates for the positions of entry level magistrates
until
this court has determined whether the claimant is entitled to be
interviewed and considered for such a post.
3.
The hearing of the Application is postponed to Wednesday 16 November
2011 for hearing in respect of the interim relief.
4.
The claimant will file an Amended Notice of Motion and Supplementary
Founding Affidavit and a notice advising shortlisted candidates
for
entry level Magistrate's positions of these proceedings (The Notice)
by Tuesday 1 November 2011,
5.
The Third Respondent will transmit the Notice and a copy of the
Application
as
amended and Supplemented to the shortlisted candidates by Thursday 3
November 2011.
6.The
Respondents are to file answering affidavits by 8 November 2011.
7.
The Claimant is to file her Replying Affidavits on or before 11
November 2011.
8.
The parties are to file Heads of Argument on or before 15 November
2011. The Third Respondent will file the record of its decisions
on
the short listing of the candidates for entry level magistrates
positions, including the profiles of the shortlisted candidates,
by
30 November 2011.
9.
it is recorded that the Respondents resen/e the right to contend
that the interim relief sought is not urgent.
10.
All questions of costs are reserved.”
[5]
On 17 November 2011 the court postponed the application to 14
December 2011 and, inter alia, ordered that:
"4.
The Respondents are interdicted from appointing any short-listed
candidates as entry level magistrates pending the order
and/or
judgment of this Court in respect of the final relief sought.
5.
The Respondents are directed to pay the wasted costs occasioned as a
result of the postponement of the hearing on 16 November
2011.
including the costs of the preparation of heads of argument and the
Complainant's legal representative and counsel's necessary
travelling
costs, jointly and severally, the one paying the other to be absolved
6.
The Third Respondent is directed to file the records of its decision
on the short-listing of candidates for entry level magistrates'
positions, including the minutes of the meeting of 29 September 2011,
transcripts relating to the deliberations of the Complainant's
Application, the complainants profile, the anonymous profiles of the
short-listed candidates and the Respondent's reasons for the
decisions in respect of the claimant, by Friday. 18 November 2011.
12.
Minutes of a pre-trial meeting held between the parties'
representatives are to be filed by Friday. 9 December 2011. Parties
to deal with the issues in terms of Rule 37 of the Fligh Court Rules
and indicate any point in limine or interim application that
each
wish to raise and address the question of assessors mentioned in
section 22 of Act4 of 2004. A copy of the index to the pleadings
to
be served on the Respondents at the pre-trial meeting."
[6]
On 9 December 2011 the South African National Council for the Blind
(SANCB) and League of Friends of the Blind (LOFOB) issued
an
application seeking an order that they be admitted as amici curiae
and that they be granted
3.1
the right to present evidence;
3.2
the right to lodge written submissions in this matter; and
3.3.
the right to present oral argument at the hearing of this matter.
The
orders sought were granted and the matter was postponed to 16 January
2012.
[7]
Initially there was an issue regarding to which centers did the
complainant apply. The complainant alleged that she applied
for the
position at about eleven (11) centers. However, the issue was
resolved.
[8]
What prompted the complainant to institute this application is that
on the 8 of September 2011 when the third respondent, the
Magistrate
Commission released a shortlist of candidates to be interviewed from
10-28 October 2011 for appointments to vacant Magistrates
posts, the
complainant was not short-listed for any of the vacant posts.
[9]
In the papers and during arguments the complainant alleged that she
was unfairly discriminated against in that:
8.1
She was excluded from consideration for appointment as a magistrate
as a result of the requirement that applicants must have
valid
drivers licenses. The requirement unfairly discriminates against
people who have disabilities which preclude them from obtaining
such
licenses;
8.2
The criteria for selection employed by the Commission is rigid and
discriminatory in that it exclude candidates from consideration
for a
range of posts on the basis of inflexible racial and gender based
preferences or quotas. The criteria is unfairly discriminatory
and it
resulted in her application not being considered on its merits; and
8.3
The selection criteria is unfairly discriminatory in that it directly
or indirectly, actively or by omission, withholds benefits,
opportunities or advantages from people with disabilities, in that it
does not take into account disability in the criteria for
short-listing of candidates.
[10]
The complainant’s claim for her final relief is based on three
grounds viz
9.1
that the respondent discriminated against her on the basis of her
disability;
9.2
that the respondents failed to give preference to people with
disabilities;
9.3
that the fact that she is an Indian woman constituted a barrier to
her short-listing.
[11]
I interpose to mention that on the aspect of discrimination on the
basis of race because she is an Indian woman, Ms HJ Maharay,
one of
the short listed candidates filed an affidavit and stated that:
“
She
applied for a transfer to Kwazulu - Natal and Mmabatho. She was only
shortlisted for Mmabatho. She thinks she was not shortlisted
for
Kwazulu- Natal since the year 2002 because she is an Indian female.
She has been told by her cluster Head that there are too
many Indian
magistrates in Kwazulu- Natal. Her gripe is that at posts where there
are many Africans, Africans are still shortlisted.
She submits the
process of short listing is not transparent and she doubts that it is
indeed race that disqualifies her from being
shortlisted in Kwazulu-
Natal. She thinks she is discriminated against on the basis of race."
[12]
The complainant further alleged that she was previously excluded from
consideration from the short listing as a magistrate
by the
Magistrate Commission because she did not have a drivers license. In
January 2010 when she enquired why she was not short
listed the
response from the Secretary of the Provincial Judicial Committee for
the Lower Courts Eastern Cape stated the following:
“
The
reason why Ms Pather was not short listed was that: Her application
did not fulfill all the requirements , le (sic) a valid
drivers
license and ...." (see p55 of the indexed papers)
[13]
However, the issue of the drivers license was not strongly pursued by
the complainant’s counsel during arguments. As
it clearly
appears in the court order dated 20 November 2011 the respondents
consented to an interdict preventing them from appointing
any
short-listed candidates as entry level magistrates pending the order
and judgment in respect of the trial relief sought, having
regard to
the 2nd order of Bertelsmann J on 27 October 2011 read with my fourth
order granted on 17 November 2011 I proceeded to
hear argument on the
final relief sought by the complainant, because the interim relief
sought had been dealt with.
[14]
The complainant submitted that she was unfairly discriminated against
in that her application was not considered on its merits
and that in
the Respondents formula or criteria for short listing candidates, the
need to redress the legacy of discriminating
against people with
disabilities was not properly taken into account.
[15]
Section 4 (2) of the Promotion of Equality and the Prevention of
Unfair Discrimination Act 4 of 200 (Equality Act) states that
in the
application of the Equality Act it is necessary to take into account
the existence of systematic discrimination and inequalities
‘particularly in respect of race, gender and disability in all
spheres of life as a result of past and present unfair
discrimination,
brought about by colonialism, the apartheid system
and patriarchy.’
[16]
I interject to mention that it is interesting to note that in the
criteria for short listing and interview a valid drivers
license is
not mentioned, however in the advertisement it is mentioned as a
compulsory requirement.
[17]
The complainant in the covering letter enclosing her application
stated that she has a visual impairment that prevents her
from
obtaining a drivers license but same did not affect her work as an
acting magistrate.
[18]
Complainant’s counsel further submitted that the issue raised
by the complainant that she applied for all posts and not
only 11
posts mentioned is not the stronghold of the complainants
application. As far as this issue is concerned, Mrs Nicolette
Van
Zyl, the Secretary of the Appointments Committee of the Magistrates
Commission explained in her affidavit filed on behalf of
the
Magistrate Commission that the complainant, according to the
advertisement must give “a clear indication of the center
of
each post applied for’' and she failed to do so. Mrs Van Zyl’s
explanation why the applicant was only considered
for 11 posts makes
sense and is accepted by this court.
[19]
Mr Abel Daniel Schoeman the Secretary of the Magistrates commission
in his affidavit supporting the opposition of the complainant’s
application has set out the criteria considered for short listing
purposes as follows:
“
1.
Section 174 (2) of the Constitution of the Republic of South Africa
Act 108 of 1996,
2.
experience,
3.
qualification,
4.
the specific needs of the office and
5.
managerial experience where applicable. ”
Mr
Schoeman further mentioned the criteria for interviews as follows.
"1.
qualification;
2.
legal knowledge;
3.
sec 174 (2) of the Constitution;
4.
leadership and management skills;
5.
language proficiency and communication capabilities;
6.
Vision;
7.
commitment to transformation and development;
8.
social context sensitivity;
9.
interpersonal relationships and
10.
integrity. ”
[20]
The respondent, in the papers and during arguments, tried to justify
their failure to specifically mention disability in their
policy and/
or criteria, because section 174(2) of the Constitution is mentioned
to in their criteria. It is important to quote
Section 174 (2) of the
Constitution at this stage:
“
(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. ” (own underlying)
[21]
Further consideration should be given to the fact that in the
advertisement, the Magistrates Commission further stated in bold
letters that “The need for the judiciary to reflect broadly the
racial and gender composition of South Africa as required
by section
174 (2) of the Constitution of South Africa (Act 108 of 1996), will
be taken into consideration in filing the vacant
posts." The
advert is silent on disability alternatively the advertisement does
not specifically mention that disability will
be taken into account
considered when filling a vacant posts.
[22]
The respondent’s counsel argued that that the non mentioning of
disability' in the advertisement and in the policy is
justified by
section 174 (2) of the Constitution.
[23]
It is therefore important to consider the provisions of section 174
(2) in the context of the Constitution as a whole to determine
whether the policy and approach of the respondents is proper and
fair.
[24]
The Constitution promotes a diverse and a legitimate judiciary.
Section 9 (2) of the Constitution, read with the Equality Act,
clearly places a complementary duty on the state to take active
measures to promote the equality of people with disabilities.
[25]
The 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.
Importantly, is the need, in terms of the Constitution
to advance the
position of people with disabilities.
[26]
The text or section 174 (2) does not exclude the consideration of
disability as a ground to be considered and to be promoted
since
disability is expressly recognized in section 9 (3) of the
Constitution and in the Equality Act.
[27]
The 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 magistrates.
[28]
The rationale behind section 174 (2) of the Constitution has been
explained by former Chief Justice Ngcobo in a lecture delivered
at
the University of Cape Town on 16 November 2010 when he said:
'[Section
174 (2)] echoes the preamble of the Constitution which declares that
[w]e, the people of South Africa.. .[b]elieve that
South Africa
belongs to all who live in it, united in our diversity.' 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, diversity allows
justice to see '." (Own underlying)
[29]
In a similar vein, Satchwell J held in S v Bresier and Another
2002
(4) SA 524
(C) at 539 B - D.
Affirmative
action is not just about redressing past injustice and creating
opportunity for individuals. We live in a difficult
society. It is a
complex and heterogeneous society. South Africans combine many race
groups, ethnic backgrounds, religious affiliations,
languages,
cultural belief and practices, employment and educational
experiences. With that diversity come many difficulties and
there is
potential for misunderstanding. But there is richness in our
differences and we have to learn from and we have to rely
on each
other. The preamble to our Constitution says ‘we are united in
our diversity'. It is essential that the magistracy
and the Judiciary
reflect the diversity and the richness and the challenges of this
complex heritage."
[30]
Two basic rationales can be distilled in promoting diversity. First,
diversity improves legitimacy because it reflects the
population it
serves. While section 174 (2) refers to race and gender, it is quite
clear that it uses them as indicators of diversity.
It does not seek
to make race and gender an exhaustive list of factors. A restrictive
interpretation of section 174(2) which focuses
only on race and
gender effectively cuts out a significant section of the population
served by the judiciary from representation
within the judiciary.
Disabled people are a clear case in point. They constitute five
percent of the population in South Africa.
However, according to the
Respondents, there are 16 magistrates with disabilities in South
Africa. The said number is a drop in
the ocean considering the number
of magistrates in the Republic of South Africa.
Second,
diversity improves the outcomes of judicial decisions by increasing
the range of perspectives of judicial officers. It is
vital that
disabled people are properly represented in the Magistracy so that
their unique perspectives can be properly articulated.
[31]
The Constitution obliges that the judiciary should be legitimate and
diverse, importantly and also that the categories of people
who were
previously discriminated against should be advanced. The first
obligation does not eclipse the latter but reinforces it
and
compliments it.
[32]
The documents before me do not. in my view, show that the reason for
not short listing complainant was her disability. However,
it is
abundantly clear that when her application(s) was considered and the
profile was prepared, the appointment committees did
not take into
account her disability and that it had a duty to advance and promote
the position of disabled people.
[33]
It is not enough to put a symbol of a wheelchair on the letterhead
and to allege that the Magistrate Commissioner is sensitive
to the
plight of disabled people.
[34]
Furthermore the duty to advance and promote the position of disabled
people are clearly mentioned in the Convention on the
Rights of
Persons with Disabilities (CRPD) which South Africa ratified on 30
November 2007 and the African Charter on Human and
Peoples Rights
(African Charter).
[35]
The purpose of the (CRPD) according to Article 1 is, to promote,
protect and ensure the full and equal enjoyment of all human
rights
and fundamental freedoms by all persons with disabilities, and to
promote respect for their inherent dignity.
[36]
The preamble to the (CRPD) recognizes the need “to promote and
protect the human rights of all persons with disabilities,
including
those who require more intensive support” and notes concern
about:
"The
difficult conditions faced by persons with disabilities who are
subject to multiple or aggravated forms of discrimination
on the
basis of race, colour sex. language, religion, political or other
opinion, national, ethnic, indigenous or social origin,
property,
birth, age or other status.
(q)
Recognizing that woman and girls with disabilities are often at
greater risk, both within and outside the home of violence,
injury or
abuse, neglect or negligent treatment, maltreatment or
exploitation...
[37]
Although the respondents are entitled to apply guidelines to assist
them in making decisions, they may not be applied rigidly
or
inflexibly. In the present matter, in my view, the respondents have
elevated the broad guideline in section 174 (2) of the Constitution
to an immutable rule and thereby fettered their discretion.
[38]
In
Du Preez v Minister of Justice and Constitution Development &
Others
2006 (5) SA 592
EgC
the Court considered the application
of a similar insurmountable barrier to appointment by the Commission
and held that:
‘
Pretorius,
Klinck and Ngwena describe as the most drastic form of preferential
treatment' those employment policies or programs
which afford
absolute preference to members of designated groups who meet the
minimum job requirements. ‘The effect of such
an approach is',
they say, ‘that selection is done irrespective of how the
preferred designated group candidate compares
with competitors from
non-designated groups and, sometimes, irrespective of how the
decision affects the excluded non-designated
group members
personally, as well as the specific operational needs of the employer
or the special requirements of the job'. The
learned authors express
the view that such measures would not be compatible with the variety
of factors that need to be taken into
account for an employment
decision to meet the constitutional requirements of fairness and
proportionality.' Fairness', as they
put it. depends on the
cumulative effect of all relevant concerns, including the extent of
the impact of the measure on the rights
and interests of the
complainant'. Proportionality', they say, requires. by definition,
the balance of competing interests'. Affording
automatic preference
for designated group members eliminates the possibility of
affirmative action from being tested in respect
of its fairness and
proportionality and elevates the affirmative action objective to the
position of sole requirement for validity."
[39]
The court concluded that an absolute barrier to appointment as a
Magistrate constitutes unfair discrimination and is irreconcilable
with the Constitutional values of fairness and proportionality.
[40]
The (CRPD) accordingly obliges the state to promote the employment of
people with disabilities and not merely eliminate active
discrimination against them This is stated explicitly in General
Comment No. 5 of the United Nations Committee on Economic, Social
and
Cultural Rights, dealing with persons with disabilities. Clause 9 of
the general comment states.
"The
obligation of State parties to the Covenant to promote progressive
realization of the relevant rights to the maximum of
their available
resources clearly requires Governments to do much more that merely
abstain from taking measures which might have
a negative impact on
persons with disabilities. The obligation in the case of such a
vulnerable and disadvantaged group is to take
a positive action to
reduce structural disadvantages and to give appropriate preferential
treatment to people with disabilities
in order to achieve the
objectives of full participation and equality within society for all
persons with disabilities. This almost
invariably means that
additional resources wilt need to be made available for this purpose
and that a wide- range of specially
tailored measures will be
required." (Own underlining)
[41]
Mrs N van Zyl in her affidavit in paragraph 7.1 said the following:
"The
appointment committee in reconsidering the flawed decision of the
selection committee it used a criteria that did not
clearly promote
and advance employment of people with disabilities."
[42]
The appointment committee in reconsidering the decision of the
Selection Committee, used, in my view, a criteria that did not
clearly promote and advance employment of people with disabilities.
[43]
There is nothing in the papers to show how the committee promoted the
position of the complainant. I need to clearly state
that disability
does not entitle the applicant to be short listed, however it is an
important imperative of the Constitution to
be considered in the
manner that the Magistrate Commission considers race and gender.
[44]
Just has it has been set out in the advertisement that ‘the
need for the judiciary to reflect broadly the racial and
gender
composition’, disability should, in my view, be included to
encourage and promote disabled people to apply.
[45]
The Selection Committee and Appointment Committee should have good
understanding of the Constitution, Equality Act and conventions
ratified by South Africa and should be seen to be promoting and
advancing the position of disabled people so that the Magistrate
Commission can perform its functions properly and in compliant with
the Constitution requirements Race, gender and disability should
not
be subordinated. Integration of people with disabilities in the
magistracy should be encouraged. In Glenister v President of
South
Africa & Others
2011 (3) SA 347
CC Moseneke DCJ and Cameron J
discussed the interrelationship between section 39(2) and 7 (2) of
the Constitution and said;
"[201]
It is possible to determine the content of the obligation s 7(2)
imposes on the State without taking international law
into account
But s 39(1 )(b) makes it constitutionally obligatory that we should.
This is not to use the interpretive injunction
of that provision...to
manufacture or create constitutional obligations. It is to respect
the careful way in which the Constitution
itself creates concordance
and unity between the Republic's external obligations under
international law. and their domestic legal
impact.
[202]
A further provision of the Constitution that integrates international
law into our law reinforces this conclusion. It is s233.
which, as we
have already noted, demands any reasonable interpretation that is
consistent with international law when legislation
is being
interpreted There is thus no escape from the manifest constitutional
injunction to integrate, in a way the Constitution
permits,
international law obligations into our domestic law. We do so
willingly and in compliance with our constitutional duty."
[46]
The policy of the Magistrates Commission is just too silent as far as
people with disabilities are concerned. Hence the selection
Committee
did not notice or give any weight to the disability of the
complainant even though it was mentioned in the application
form.
Interestingly on the 3rd of October 2011 the legal administration
office of the department responded to the complainant’s
attorney stating that the reason that the complainant was not short
listed was because "there is an over representation of
Indian
females". No mention is made that her disability was also
considered.
[47]
Knowing about the disability without understanding how the
Constitution and conventions expect how such people should be
promoted
and be advanced is a serious injustice and contrary to the
spirit of the Equality Act. Disabled people deserve to have a special
status for the magistracy to be transformed. On this aspect Ngcobo J
(as he then was in Bato Star Fishing (Pty) Ltd v Minister
of
Environmental Affairs and Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
CC said
the following:
“
Transformation
is a process. There are profound difficulties that will be confronted
in giving effect to the constitutional commitment
of achieving
equality. We must not underestimate them. The measures that bring
about transformation will inevitably affect some
members of the
society adversely, particularly those coming from the previously
advantaged communities. It may well be that other
considerations may
have to yield in favour of achieving the goal we fashioned for
ourselves in the Constitution. What is required,
though, is that the
process of transformation must be carried out in accordance with the
Constitution."
[48]
In National Coalition for Gay and Lesbian Equality v Minister of
Justice
1999 (1) SA 6
CC where Ackerman J, (again writing for the
majority of the Court) noted that in South Africa certain categories
of people have
suffered considerable unfair discrimination in the
past. It follows that it is insufficient for the Constitution merely
to eliminate
statutory provisions which have caused such unfair
discrimination.
"Past
unfair discrimination frequently has ongoing negative consequences,
the continuation of which is not halted immediately
when the initial
causes thereof are eliminated, and unless remedied, may continue for
a substantial time and even indefinitely.
Like justice, equality
delayed is equality denied."
[49]
Ackerman J explicitly endorsed the notion of substantive, as opposed
to formal, equality, stating:
“
Substantive
equality is envisaged when s 9(2) unequivocally asserts that equality
includes ‘the full and equal enjoyment of
all rights and
freedoms'. The State is further obliged ‘to promote the
achievement of such equality' by legislative and other
measures
designated to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination', which envisages
remedial
equality. ”
[50]
There is a need for a clear policy on the promotion and advancement
of disabled people to attracted to the Magistracy and be
provided
with facilities that can enhance their potential.
[51]
According to the statistics about 5% of the population of South
Africa is disabled. The issue of over representation of race
should
not be overemphasized when a person who applies is disabled.
[52]
I do not know what ultimately happened to the application of the
complainant after my order dated 13 January 2013 but hope
my reasons
of the order will assist in the policy to be prepared by the
Magistrate Commission.
[53]
In conclusion Magistracy will not be diverse nor legitimate if it
only represents the racial and composition of the country
without
proper and proportionate representation of people with disability.
A
P LEDWABA
JUDGE
OF THE HIGH COURT
HEARD
ON: 27 October 2011
FOR
THE COMPLAINANT: Adv P Hathorn SC
INSTRUCTED
BY:T Brivik Attorneys, Cape Town
FOR
THE FIRST, SECOND AND THIRD RESPONDENTS: Adv JA Motepe and Adv MB
Matlejoane
INSTRUCTED
BY: The State Attorney, Pretoria
FOR
THE AMICI CURIAE: Adv T Ngcukaitobi