Magistrates Commission v Lawrence

SCA decided that the rigid exclusion policy adopted when considering persons for appointment as magistrates was totally unacceptable and amounted to discrimination.

“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.”

Essence

SCA disallowed the appeal with costs after confirming that the rigid exclusion policy adopted by the appointments committee was discrimatory.

Decision

(SCA 388/2020) [2021] ZASCA 165 (2 December 2021)

Order:

Disallowed the appeal with costs, including the costs of two counsel from the high court order in December 2019 of Daffue ADJP and Molitsoane J.

Judges

Potterill AJA (Ponnan, Saldulker and Van der Merwe JJA concurring and Molemela JA dissenting in part)

Heard:       1 September 2021
Delivered:  2 December 2021

Related books

Darcy du Toit et al Labour Relations Law: A Comprehensive Guide 6ed 925 pages (LexisNexis 2015) at

Darcy du Toit et al Labour Law Through The Cases – loose-leaf service updated 6 monthly (LexisNexis 2021)

Van Niekerk and Smit (Managing editors) et al [email protected] 5ed (LexisNexis 2019) at

Myburgh and Bosch Reviews in the Labour Courts 1ed (LexisNexis 2016) at 

Reasons

“[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.”

Quotations from judgment

Note: Footnotes omitted and emphasis added

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 “A”, 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:

‘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.’

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 respondent’s 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 ‘majority of the members of the Commission shall constitute a quorum for a meeting of the Commission’. 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:

‘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.’

And, in terms of s 6(7) the ‘provisions of section 5 shall mutatis mutandis apply to a meeting of a committee’.

[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 ‘decision’ 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. The appointment of judicial officers is an important exercise of public power to ensure the independence of the judicial branch of government. 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.

[8] As it was pointed out [by the high court per Sher J] in Amos v Minister of Justice and Others [2019] ZAWCHC 130 para 43:

‘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.’

[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:

‘(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.’

[14] In addition, s 174(7) provides:

‘(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.’

The legislation envisaged in s 174(7) is the Act. Section 10 of the Act provides:

‘(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.’

[15] Regulations 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:

‘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.’

[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:

‘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.’

[18] The AP stipulated that the listed criteria are not to be ‘applied in any fixed order or sequence of preference or prioritisation’.

Mr Lawrence’s candidature

[19] Mr Lawrence commenced acting as a magistrate in the Bloemfontein Cluster ‘A’ 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 48th 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 Justice’s letters to the Chair of the Chief Magistrates’ 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:

‘This result was extremely pleasing since Mr Lawrence had, during this period, also materially contributed to the statistics for Jagersfontein court which came 1st in the cluster and 9th overall in the country’. 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 Lawrence’s application fell to be considered alongside those of the other candidates, who likewise met those requirements.

[23] The record reflects that although Mr Lawrence’s 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 committee’s approach to Mr Lawrence’s application:

[see report]

[24] ‘Take away the whites’ 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 ‘circumstances of the post’ 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 ‘the 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 traditions’. 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 [the constitutional court judgment of Zondo J] Solidarity and Others v the Department of Correctional Services and Others (Solidarity).

It was there stated:

‘The 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 deviations’.

However, the appellants’ 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 [per Moseneke ACJ] was relied on as follows:

‘In 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 rigid’.

In both Barnard and Solidarity the Constitutional Court eschewed rigidity.

Barnard (at para 30) pointed out that:

‘our quest to achieve equality must occur within the discipline of our Constitution’. In Solidarity (para 78), the Constitutional Court emphasised that: ‘It 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.’

[28] As the written reasons for the decision made clear, Mr Lawrence was not shortlisted on the basis that he did not ‘meet the section 174(2) of the Constitution-criteria in any of those offices’.

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:

‘[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 magistrates’.

[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:

‘effectively 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. . .’.

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:

‘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’.

[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 Lawrence’s 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.

MB Molemela JA

[See report]

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 Lawrence’s 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 ‘it cannot be rightly concluded’ (as the first judgment does), that the process adopted was rigid, inflexible and quota driven and would, accordingly, dismiss Mr Lawrence’s 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 ‘the weighty consideration of gender representivity’.

[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.

[79] To borrow from [the SCA judgment of] Wallis JA in Fischer and Another v Ramahlele:

‘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 “it is impermissible for a party to rely on a constitutional complaint that was not pleaded”.

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. . . .’

[80] As Howie JA [in the SCA] pointed out in Western Cape Education Department v George:

‘. . . 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.’

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:

‘The decision or judgment, in the sense of the Court’s order, by itself only operates, of course, as between the parties; it can only state law in so far as it discloses a rule’.

[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 party’s case.

The second judgment also calls in aid certain statistics that formed no part of either party’s 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:

‘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.’

Section 174(2) reads:

‘The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.’

[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 ‘lip service was paid to the constitutional imperative of gender transformation’. That must mean that one of the legs relied upon by the appellants in resisting Mr Lawrence’s claim cannot be sustained. Moreover, the finding that ‘lip service was paid to the constitutional imperative of gender transformation’, 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:

‘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.’

[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:

‘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.’

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:

. . . .

[90] The Committee’s 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

‘process is implemented in a nuanced and flexible manner and there is no bar to shortlisting of white males’,

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:

‘I am of the view that if we have 17 white persons in the province already, that is enough’; ‘I think that three [white male magistrates] is enough for now’; ‘Ja, No we are not looking for white males in your cluster at all’; ‘Anything you need except for white’; ‘Not white. Just female, but not white’; ‘. . . Female whites, are we not accepting? No.’; ‘If we can find more of the other two races that are lacking then we do not consider any white person’; ‘Take away the white. Take away the white’; and ‘No, we are not looking for white males in your cluster at all’.

[92] As a result of this approach Mr Lawrence’s 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 Lawrence’s 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:

. . . .

[94] In contrast, this is what happened when Mr Lawrence’s name came to be mentioned in respect of Botshabelo:

. . . .

[95] As the following from the record shows, it did not get any better when Mr Lawrence’s name was raised in respect of Petrusburg:

‘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 – 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 – 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.’

[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 ‘process is implemented in a nuanced and flexible manner and there is no bar to shortlisting of white males’. In argument, counsel for the appellants was invited to point us to anywhere in the record where Mr Lawrence’s 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. 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. 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.

[98] The second appellant, the Regional Court President for the Free State, who chaired the Committee, deposed to what was styled an ‘answering affidavit to the supplementary founding affidavit’.

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 ‘nothing is known of what was said when the members were talking simultaneously’.

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, ‘not captured by the recording’.

[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 ‘higher duty to respect the law’.

After all, none of the appellants can be described as ‘. . . an indigent and bewildered litigant, adrift in a sea of litigious uncertainty, to whom the courts must extend a . . . lifeline. . . .’.

[100] The Committee’s 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:

. . . .

[101] The record thus shows that what occurred was indeed ‘rigid, inflexible and quota-driven’. 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:

‘CHAIRPERSON: . . . We are running out of – 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 Natalie’s 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.’

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 ‘174-criteria’, may, in itself, demonstrate the fallacy in the Committee’s 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 Committee’s admitted process was flawed.
Section 174 of the Constitution employs the phrase ‘broadly representative’. 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:

‘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.’

It accordingly concluded that:

‘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.’

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.

Court summary

Summary

“Constitutional law – review of a decision of the Appointments Committee of the Magistrates Commission not to shortlist a candidate for appointment as magistrate – rigid exclusion of candidate solely on account of being a white male – recommendation of Appointments Committee reviewed and set aside.”