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[2021] ZAEQC 1
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Kroukamp and Another v Minister of Justice and Constitutional Development and Others (74236/2013) [2021] ZAEQC 1; (2021) 42 ILJ 2494 (EqC); [2021] 11 BLLR 1159 (EqC) (16 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(SITTING
AS THE EQUALITY COURT)
CASE
NO: 74236/2013
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
DATE:16
August 2021
In
the matter between:
MARTIN
KROUKAMP
FIRST COMPLAINANT
SOLIDARITY
SECOND COMPLAINANT
and
THE
MINISTER OF
JUSTICE
FIRST RESPONDENT
AND
CONSTITUTIONAL DEVELOPMENT
DIRECTOR
GENERAL:
SECOND RESPONDENT
DEPARTMENT
OF JUSTICE AND
CONSTITUTIONAL
DEVELPOMENT
MAGISTRATE
COMMISSION
THIRD RESPONDENT
THE
CHAIRPERSON OF THE
FOURTH RESPONDENT
MAGISTRATE
COMMISION
JUDGMENT
RAULINGA
J,
1.
The complainants have approached the
Equality Court (“this Court”), for a claim based on
alleged unfair discrimination.
This follows a decision by then
Minister of Justice and Constitutional Development (“the
Minister”), not to fill twenty-three
(23) posts of Senior
Magistrates in various Magistrates Offices throughout the country.
2.
In this matter the complainants are seeking
the relief sought set out in Part B of the founding affidavit deposed
to by the first
complaint. The relief sought is as follows:-
2.1
Declaring that the decision of the Minister
to not appoint the first Complainant in the position of Senior
Magistrate for the District
of Alberton constitutes an unfair
discrimination ( and/or unfair discrimination) on the basis of race
and/ or unfair discrimination
in contravention of sections 6,7 and/
or 8 of the Promotion of Equality and Prevention of Unfair
Discrimination Act, 4 of 2000.
(“the Equality Act”);
2.2
Restraining the Minister from engaging in
unfair discrimination practices, including but not limited to,
failing to make properly
motivated appointments to the positions of
magistrate or senior magistrate on the basis of considerations of
race and gender alone;
2.3
Directing the Minister to take steps to
stop the unfair discrimination inherent in race and gender based
appointments for persons
to be appointed to the positions of
magistrate or senior magistrate;
2.4
Directing the Minister to appoint the first
complaint to the position of a senior magistrate for the district of
Alberton (“Palm
Ridge, Katlegong”) in line with the
recommendation of the Magistrate Commission; and
2.5
Costs of the application.
3.
During November 2009, the Magistrate
Commission advertised 23 posts of Senior Magistrates that were vacant
throughout the country.
The first complainant applied for the post of
Senior Magistrate in the Alberton Office. The Magistrate Commission
prepared a shortlist
of the candidates for all the various posts
throughout the country.
4.
The first complaint was one of the
candidates shortlisted and interviewed, together with others, for the
post of Senior Magistrate,
Alberton.
5.
On 28 February 2011 and after the
interviews, the Magistrate Commission submitted a memorandum to the
Minister in which it made
recommendation that the Minister appoints
certain candidates. In its memorandum, the Magistrate Commission
recommended only one
candidate for appointment in respect of each of
the 23 posts of the Senior Magistrates. The candidates recommended by
the Magistrates
Commission for appointment into the 23 vacant posts
reflected, broadly, all races and genders in South Africa. The
complainant
was among the candidates recommended for appointment to
the post of Senior Magistrate, Alberton.
6.
On 15 June 2011 the Minister requested the
Magistrate Commission to provide him with further information
regarding its recommendation
as contained in the memorandum. The
further information was required because, based on the recommendation
by the Magistrate Commission,
the Minister found that the information
at his disposal was inadequate to enable him to make the judicial
appointments.
7.
On 28 February 2012 the Magistrate
Commission responded to the Minister’s request for information.
In its, response, the Magistrate
Commission stated that there was not
enough pool to draw candidates for appointment into the various posts
hence they recommended
only one name for each post.
8.
One is alive to the fact that the
Magistrates Commission recommended to the Minister that the first
complainant be appointed to
the position of senior magistrate at
Alberton. According to the recommendation, the committee that
conducted the interviews had
unanimously resolved to recommend the
first complainant as the only suitable candidate for the position,
after consideration of
all relevant factors.
9.
Having weighed the fact that the first
complainant is a white male, together with his other attributes, the
Magistrates Commission
came to the conclusion that the first
complainant was appropriately to be recommended for appointment to
the position. The Magistrates
Commission noted in its explanation
that the race and gender balance at the (then) Alberton Office would
not be disturbed through
the promotion of the first complainant. The
recommendation included a summary of the race and gender composition
at the level of
senior magistrate, and also included an explanation
of the race and gender composition of the Lower Court Judiciary.
10.
The memorandum containing the
recommendation of the first complainant also included recommendations
for the appointment of magistrates
to 22 other vacant and funded
posts of senior magistrate countrywide. The candidates recommended by
the Magistrates Commission
reflected, broadly, all races and genders
in South Africa. The injunction in section 174(2) of the Constitution
of the Republic
of South Africa Act 108 of 1996 (“the
Constitution”) was therefore complied with in the
recommendation of the Magistrates
Commission.
11.
In mid-2011, the Minister enquired about
why only one candidate per post had been recommended, and also
questioned how the Magistrates
Commission could contend that there
was a pursuit of constitutional ideals through the recommendations.
In this regard, he placed
particular emphasis on the recommendation
of white males for three of the positions.
12.
The Magistrates Commission then provided a
comprehensive response in February 2012. It considered itself bound
by its earlier decision,
but offered further information. The
Magistrates Commission gave a comprehensive explanation of its
difficulties in alliterating
applications from suitable candidates,
particularly females in the case of senior magistrates. In these
circumstances, only three
candidates were shortlisted per post and in
the majority of cases only one candidate was found suitable for
appointment and that
is why only one name was submitted to the
Minister.
13.
In respect specifically of the position,
the Magistrates Commission advised that four candidates had been
interviewed, of whom only
two found to be appointable (the first
complainant and a Ms Dawry, an Indian female). However, Ms Dawry
received preference for
appointment at Johannesburg for operational
reasons and the Magistrates Commission considered that the first
complainant had proven
his leadership and effectiveness whilst in the
post. The Magistrates Commission highlighted that the race and gender
balance of
the Alberton office would not be disturbed by his
appointment. More generally, the response from the Magistrate
Commission gave
the Minister information on the candidates considered
for selection and the reasons why they were not recommended. Most
importantly,
the Magistrates Commission provided the Minister with
the curriculum vitae of all candidates that have been interviewed, so
that
the Minister was placed in a position to exercise a discretion
and not simply rubber-stamp the recommendation of the Magistrate
Commission.
14.
On 30 November 2011, the Minister wrote to
the fourth respondent (the Chairperson). He accepted the explanation
for the recommendation
of only one candidate per post- Trial Bundle
p13. He however, still declined to make the appointments, asserting
that he found
the pool of candidates from which he was required to
make appointments inadequate for purposes of making appointment, that
aim
at the advancement of the constitutional imperative regarding the
transformation of the judiciary: The Minister considered that
this
was more significant especially at the level of Senior Magistrate
where these vacancies occur, as it is at the management
echelon of
the judiciary where we still experience acute underrepresentation of
Black and Woman judicial officers. The Minister
concluded that in
view of the dearth of the pool from which recommendations were made
and lapse of time since the advertisements
were made, it would be
advisable to re-advertise the positions concerned. The Minster
declined to make any appointment; and in
May 2013, the secretary of
the Magistrates Commission advised that the posts would be
re-advertised.
15.
I pause to reiterate that, despite the
Minister’s acceptance of the explanation for the recommendation
of only one candidate
per post, he repeatedly reverted to his
explanation that he could not make an appointment based on only one
recommendation, although
he offered no explanation competent in law
for why this was so. The Minister sought to place reliance on section
174(4) of the
Constitution, which finds application in respect of the
appointment of judges of the constitutional Court. Under the
Constitution,
the appointment of magistrates is to be done in
accordance with an Act of Parliament- in the present case the
Magistrates Act, 1993
. The Magistrates Act does not provide that any
particular number of candidates fall to be recommended to the Minster
for consideration.
It seems to me that the Minister is clutching at
straws by hiding behind the application of section 174(4) of the
Constitution.
Surprisingly, in his reasons offered to the first
complainant, the Minister did not say that he is unable to make an
appointment
because only one candidate per post had been recommended
to him. In my view, the only other reason for the non-appointment of
the
first complainant to the post of senior magistrate of Alberton is
because he is not black and a woman. This is so because, the
Magistrate Commission found that the first complainant met all the
criteria for appointment.
16.
Consequently, after the posts were
advertised, the first complainant in December 2013 launched these
proceedings, in which he sought
interim relief preventing the
Position from being filled whilst he was pursuing final relief,
contending that the decision of the
Minister not to appoint him
constitutes unfair discrimination on the basis of race and or gender
in contravention of section 6,7
and or 8 of the Equality Act.
17.
On 23 September 2014, Mngqibisa-Thusi J
granted a postponement to allow the Minister to re-consider the
non-appointment of the first
complainant and the candidates
recommended for appointment to the other 22 positions. She also
granted an order keeping the Position
vacant until the proceedings in
this case have been finalised.
18.
Proceedings in this matter commenced
in August 2017. The evidence of the first complainant was led on 21
August 2017. After the
complainants closed their case, Counsel for
the first respondent then indicated that he wished to move for
absolution from the
instance. Arguments on absolution from the
instance were heard on 23 August 2017. This application was dismissed
with costs on
13 October 2017.
19.
On 6 December 2018, the respondents
led the evidence of the Minister, who had been the Minister at the
time the decision had been
taken. After the Minister’s
testimony, the respondents closed their case, counsel for the parties
made their submissions
on 17 December 2020 where after judgment was
reserved.
20.
It is the case of the first complainant
that the Minister paid no attention whatsoever to the content of the
recommendation that
he be appointed to the position for which in the
balancing exercise that involved considerations of demographic
representivity
together with considerations of merit. The first
complainant pleaded that the decision of the Minister, based on
considerations
of race and gender, flies in the face of the
requirement that affirmative action must be applied in a situation
sensitive manner
that takes into account the qualities and attributes
of particular applicants. This, so the first complainant asserts,
violates
sections 6,7 and 8 of the Equality Act.
21.
In making out his case, the first
complainant recognized that it is not unfair discrimination to take
measures designed to protect
or advance persons or categories of
persons disadvantaged by unfair discrimination. He emphasized that
this did not mean that positions
could be left vacant on the basis
that the application of race and gender considerations alone
militated against the appointment
of candidates. It was the case of
the first complainant that service delivery was being adversely
affected by the Minister’s
pre-occupation with race and gender
representation to the exclusion of other relevant considerations,
such as his competency. He
also stated that the Minister took into
account the fact that he is a white-male.
22.
The first complainant conceded in
cross-examination that the reason the Minister did not make any
appointment is because he had
been presented with insufficient
information as he was presented with one name only for each of the 23
posts. He conceded that
even in instances where African males or
females were recommended, no appointment was made.
23.
The respondents argue that the Minister did
not appoint any of the candidates into the 23 posts, and therefore
there is no discrimination,
let alone unfair discrimination. They
submit that there is a clear distinction between a decision not to
appoint a candidate and
a decision not to fill the position itself.
24.
The evidence and argument of the
respondents is that the complainant bear the onus to prove a prima
facie case. According to them
on the facts before Court, they have
not managed to prove on a balance of probabilities, a case of
discrimination or that such
discrimination was unfair. However, if
the complainants make out a prima facie case of discrimination, the
respondents have an
onus to discharge, should the complainants prove
a prima facie case for discrimination based on any of the prohibited
grounds in
terms of the Equality Act. As such, the respondents argue
that assuming that the complainants have shown that there was a prima
facie case of discrimination against them, the respondents can
discharge the onus that was shifted to them only by placing facts
before the Court that objectively prove that the discrimination
either did not take place as alleged, or, the discrimination was
not
unfair because it was not based on any of the prohibited grounds.
25.
The respondents base their argument on the
contention that the first complainant was not unfairly discriminated
against because,
he was white and male or because he is not a woman-
he was not discriminated against on the basis of his race and gender.
The case
of the respondents is that the Minister decided not to fill
the posts because there was an insufficient pool of candidates for
appointment that were recommended by the Magistrates Commission.
26.
In his letter of 15 June 2011, the Minister
also stated that: “This is a departure from the established
practice in terms
of which I am provided with a list of candidates
who the Commission has found to be fit and proper for appointment for
a judicial
office from which I may make an appointment. Respectively,
the submission of only one candidate deprived me of the opportunity
to consider the different attributes that need to be taken into
consideration in the appointment of the incumbents to fill these
important senior posts, most of which are at the head office. I have
also noticed that in respect of the recommendations for the
Alberton,
Durban and Worcester vacant posts the Commission purports that its
recommendation is based on the constitutional imperative
contemplated
in section 174(2) of the Constitution when it does not appear to be
the case”.
27.
The respondents furthermore, submit that no
appointment was made in respect of any of the 23 posts for the same
reason, namely that
the Magistrates Commission had recommended only
one name for each of the 23 posts and that the recommendations of the
Magistrates
Commission took away the discretion of the Minister. The
respondents persist on the fact that the first complainant conceded
that
even in instances where African males or females were
recommended, no appointment was made. Therefore, the fact that the
Minister
did not appoint anyone, black or white, male or female is
disposite of the matter.
28.
One must mention that it is not completely
accurate that the Magistrates Commission did not give a full
discussion report where
other candidates’ attributes were
discussed. The Commission provided the Minister with curriculum vitae
of the candidates
in question. The Minister accepted that he had
received an explanation from the Chairperson of the Magistrates
Commission, which
included a specific explanation on the selection of
the first complainant as the suitable candidate to bring stability to
the office
and to provide effective leadership when it was needed.
29.
Apposite to these proceedings is what this
Court said on 13 October 2017, when the application for absolution
from the instance
was dismissed. It was recorded that:
“
in
my view the mere fact that the Minister rejected the recommendation
of the Magistrates Commission for the appointment of the
twenty-three
(23) candidates, including the first complainant, on the basis that
“have also noticed that in respect of the
recommendations for
Alberton, Durban and Worcester (sic) vacant posts, the Commission
purports that its recommendation is based
on the constitutional
imperative contemplated in section 174(2) of the Constitution when it
does not appear to be the case”.
The mere mention of
“underrepresentation of Black and Woman judicial officers”
connotes a decision possibly based on
race although not necessarily
discriminatory. No clear interpretation maybe given to these terms-
it leaves one groping in the
dark. It is therefore necessary that the
respondents must answer to these allegations or close their case as
they so wish. We cannot
read our own meaning into the words of the
Minister. We are not certain what the Minister’s interpretation
of section 174(2)
of the Constitution is”.
30.
We now know that the Minister came and
testified. In my view, the Minister was clutching at straws. He could
not convincingly explain
why he steered away from all the responses
the Commission gave to him through the exchange of a number of
correspondence which
offered him additional information. He remained
fixated to his explanation that only one recommendation per post and
the limited
pool of available candidates was the reason why the first
complainant and other candidates were not appointed.
31.
However, it is glaringly clear that the
main reason for the non-appointment of the first complainant was that
‘I have found
the pool of the candidates from which I am
required to make appointments inadequate for purposes of making
appointments that aim
at the advancement of the constitutional
imperative regarding the transformation of the judiciary. This is
more significant especially
at the level of Senior Magistrate where
these vacancies occur, as it is at the management echelon of the
judiciary where we still
experience acute underrepresentation of
Black and Woman judicial officer’.
32.
In my view, the Minister’s evidence
did not add any value to the version of the respondents already
tendered to the Court.
His evidence didn’t tilt the scales in
favour of the respondents’ case. The version of the
complainants was not rebutted-
it remains intact.
33.
The
Equality Act prohibits unfair discrimination. It is a statute that
gives effect to the equality provisions of the Constitution
in
section 9. On the basis of the principle of subsidiarity; it is the
provisions of the Equality Act that must be applied and
no direct
reliance may be placed on section 9 of the Constitution, although the
interpretation of the prohibition on unfair discrimination
may well
track the jurisprudence of the Constitutional Court on unfair
discrimination
-
S V Mhlungu
[1]
.
34.
It
is trite law that a litigant cannot circumvent legislation enacted to
give effect to a Constitutional right by attempting to
rely directly
on the constitutional right –
MEC
for Education, Kwazulu Natal v Pillay
[2]
.
It is also trite that constitutional values in section 1(c) and 195
of the Constitution do not create actionable rights and cannot
be
relied upon to found a right to public participation or media access,
in the appointment process for purposes of an application-
Britannia
Beach Estate (Pty) Ltd and Others V
Saldanha
Bay Municipality
[3]
,
Chinwa
V Transnet Limited and Others
[4]
.
The values play an important role in interpreting provisions of the
Constitution, including those in the Bill of Rights. The respondents
must rely on section 9(2) of the Equality Act and not on section
174(2) of the Constitution-principle of subsidiary.
35.
Compared to a challenge directly on
section 9 of the Constitution, the Equality Act offers some
significant procedural advantages
for complaints. This assists in so
far as conduct is challenged; the Equality Act shifts the burden of
proof once the complainant
has made out a prima facie case of
discrimination- Equality Act section 13(1). In my view, the
complainants have produced evidence
of a character that, is not
answered convincingly, and justifies a reasonable and fair person,
such as this Court, to find in favour
of the complainants. That
conclusion applies to the circumstances of this case. Therefore, the
respondents are saddled with the
full onus.
36.
Regarding
the issue of differentiation, in as far as discrimination is
concerned, the test is whether there is unequal treatment
of people
“based on attributes and characteristics attaching to them”-
Harsen
V
Lane
[5]
.
37.
It is correct that section 174(2) of the
Constitution provides no basis for absolute and unconditional
priority to be given to women
and black people.
38.
Ledwaba
J held in
Singh
V Minister of Justice and Constitutional
Development
and Others
[6]
,
that it is important to consider the provisions of section 174(2) in
the context of the Constitution as a whole. The specific
notion 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.
39.
In
casu
,
the Minister ignored the advices of the Magistrates Commission that
it had taken into account the prescripts of section 174(2)
when
making the recommendation in respect of the first complainant. He
also ignored the specific information provided namely that
the
appointment of the first complainant would have no adverse effect on
the composition of that office. If the decision of the
Minister had
been informed by the quest for diversity that is mandated by section
174(2), the explanation would have been sufficient
to justify the
appointment of the first complainant. It seems to me that the
Minister focused on the race and gender of the first
complainant, to
the exclusion of his other qualities that recommended him for
appointment. In my view, this amounts to unfair discrimination.
40.
There is one other important aspect that
the complainants raise. It is this that, there are statutes that
regulate the appointment
and promotions of magistrates. These are the
Magistrates Act 90 of 1993 (Magistrates Act) and the Magistrates’
Court Act
32 of 1944. (The Magistrates’ Court Act).
41.
The Minister has a duty and the power to
appoint any appropriately qualified, fit and proper person to the
office of Magistrate
in terms of
section 10
of the
Magistrates’
Act read
with
section 9(
1) of the Magistrates’ Court Act.
42.
However,
the Minister only makes appointments of magistrates after
consultation with the Magistrates Commission. As Chaskalson CJ
recognised in
Van
Rooyen and Others V State and others (General Counsel
of
the Bar of South Africa intervening)
[7]
,
the Magistrates Commission consists of responsible members of the
community; leading him to the conclusion that; There is no reason
to
believe that the members of the Commission will not discharge these
and their other duties, with integrity, or that viewed objectively
there is any reason to fear that they will not do so.
43.
However, nothing in the statute suggests
that the Minister is obliged to follow the recommendation of the
Magistrates Commission.
The Minister is not bound by the
recommendation of the Magistrates Commission-
Van
Rooyen
(Supra) at page 109.
44.
It
is however relevant to mention that material to the conclusion above
is that, the recommendations of this specially constituted
body play
an important constitutional role. The learned Chief Justice held in
Van
Rooyen
,
supra at para 109, that, the appointment of a Magistrates Commission,
presided over by a Judge, and drawn from diverse sections
of the
legal community to advise the Executive in relation to the
appointment of magistrates is a check on the exercise of executive
power, echoing the sentiment expressed in the First Certification
Judgment with regard to the Judicial Service Commission-
Ex-parte
Chairperson of the
Constitutional
Assembly
:
In re Certification of the Constitution of South Africa
[8]
.
45.
Once it is recognised that he Magistrates
Commission fulfils the role of a constitutional check upon the
decision-making power of
the Executive, then it must follow that the
Minister must have reasons competent in law for declining to follow
the recommendations.
46.
Indeed, in the present matter, the
Minister, when making appointments in the exercise of the power under
section 10
of the
Magistrates Act, must
bring into account the
requirements of section 174(1) and 174(2) of the Constitution. –that
the person appointed is suitably
qualified, who is fit and proper
person to be appointed as a judicial officer, and that the need for
the judiciary to reflect broadly
the racial and gender composition of
South Africa.
47.
Judge Davis, in his article;
Judicial
Appointments in South Africa
, opines
that the preferable approach is first to find the candidates who are
the very best in terms of criteria of merit: if the
ranking of
candidates then achieved does not ensure the requisite
representivity; he suggests that section 174(2) would then apply
to
ensure that candidates who may not have been the first or second
choice on the ranking- but that notwithstanding, comply with
the text
of merit and hence are appropriately qualified, are then appointed
above the higher-ranked candidates in order that the
requirement of
the Constitution in terms of section 174(2) is met.
48.
The 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 male.
49.
In this matter, even though the Minister
sought in evidence to deny that he didn’t appoint the first
complainant based on
a racial discrimination, his after- the fact
denial is bellied by the contemporaneous election to couple the
reasons for declining
appointment in three cases to the race and
gender of the recommended applicants.
50.
It
is necessary to reiterate what I said in the judgment for absolution
from the instance- that it was not possible to clearly discern
what
the Minister meant: Now that the Minister has testified, it is easy
for one to make a credibility finding, based on the oral
testimony of
the Minister and his demeanor. The ambiguity of the language used
maybe determined, based on his body language and
oral testimony.
Having gone through this exercise, I am convinced that the reasons
provided by the Minister are not adequate but
are instead
contradictory to the relevant provisions in the Equality Act- see
Minister
of Environmental affairs and Tourism V Pham
Fisheries
(Pty)
Ltd
[9]
.
In my view, the reason given for the non-appointment of the first
complainant was that he was a white male, albeit that the language
used was in veiled terms. This in my view amounts to unfair
discrimination. The Minister has failed to discharge the burden of
showing that the discrimination in the present case was fair.
51.
Included in the preamble of the
Constitution of South Africa are the following:
“
We,
the people of South Africa,
·
Recognise the injustices of our past;…
·
Believe that South Africa belongs to all
who live in it,
·
United in our diversity,…
·
We, therefore, through our freely elected
representatives, adopt this Constitution as the Supreme law of the
Republic so as to-
o
Heal the divisions of the past and
establish a society based on democratic values, social justice and
fundamental human rights”..
52.
We may not become a united society and heal
the divisions of the past, if we apply the apartheid inequalities in
reverse. Painful
as the injustices of the past might have been, we
must endure the pain and soldier on.
53.
One has recently looked at the racial and
gender composition of the lower Courts both district and regional.
The demographics of
the racial complexion has since made a lot of
progress- there is a drastic change from what it used to be
immediately after 1994
and during the later years. More black
magistrates (African, Coloured and Indian) have been appointed to the
posts of magistrates
and regional magistrates. This complexation is
testimony to the fact that, while transformation is still paramount
to a diverse
society, it is also evident that we must continue to
appoint white people as judicial officers, mindful of the affirmative
action
policy. We cannot rule out the interest of non-designated
groups out of the equation at the outset. Since the dawn of democracy
more Black people have been appointed to the judicial office. This
resulted in the Black community gaining more confidence in the
judiciary. Consequentially the white community will continue to have
confidence in the judiciary when they see some of their own
appointed
as judicial officers.
54.
In the result, the complainants’
application succeeds.
55.
The following order is made:
55.1
It is declared that the decision of the
Minister to not appoint the first complainant in the position of
Senior Magistrate for the
District of Alberton constitutes unfair
discrimination and or unfair discrimination on the basis of race and
or unfair discrimination
in contravention of section 6, 7 and 8 of
the Equality Act.
55.2
The Minister is directed to immediately
appoint the first complainant to the position of Senior Magistrate
for the district of Alberton
(Palm Ridge, Katlehong), in line with
the recommendation of the Magistrate Commission.
55.3
The Minister is ordered to pay costs of
this application.
JUDGE
T. J RAULINGA
JUDGE
OF THE HIGH COURT
Appearances:
Complaint’s
Counsel
: Adv. M.J Engelbrecht SC
Complainant’s
Attorneys
: Serfontein Viljoen & Swart Attorneys
Respondent’s
Counsel
: Adv D.B Ntsebeza SC
Adv:
M Gwala SC
Adv.
L Makaphela
Defendant’s
Attorney
: State Attorney
Date
of hearing
: 17 December 2020
Date
of judgment
: 16 August 2021
[1]
[1995] ZACC 4
;
1995
(7) BCLR 793
(CC);
1995 3 SA 867
(CC) para 59.
[2]
[2007] ZACC 21
;
2008
(1) SA 474
CC at para 40.
[3]
2013
(11) BCLR 1217
(CC) at para 16-17.
[4]
[2007] ZACC 23
;
2008
(4) SA 367
(CC) at para 74 to 76.
[5]
[1997] ZACC 12
;
1998
(1) SA 300
(CC) at para 48.
[6]
2013
(3) SA 66
(Eqc) at para 27.
[7]
2002
(5) SA 246 (CC).
[8]
1996,(4)
SA 744
(CC) at para 123-124.
[9]
2003
(6) SA 407
(SCA) at para 40.