According to the Helen Suzman Foundation (HSF), which appeared in the proceedings as amicus curiae, the court held that the commission displayed a total disregard for legislation, regulations, their own shortlisting processes and the rights of whites to at least be considered during the shortlisting process.
Judgment was handed down last week, the HSF said on Tuesday.
The application was brought by the acting magistrate and head of office of Petrusburg Magistrate’s Court, Richard Lawrence, whose shortlisting for a permanent position was overlooked by the magistrates commission.
“It was clear from the record of the private deliberations of the magistrates commission that race was the determining factor in the shortlisting process. In particular, the record revealed astonishing statements such as, ‘Anything you need, except white,’ made by the chairperson of the magistrates commission. This resulted in no male or female white candidates being considered for shortlisting for any of the magisterial vacancies available,” said the HSF.
The commission attempted to justify its decision not to consider white candidates based on its interpretation of s174(2) of the constitution, which requires that consideration in judicial appointments must also reflect broadly the racial and gender composition of South Africa.
The HSF argued that s174(2) must be considered and weighted with all other relevant factors to be considered in judicial selection. It cannot be the determining factor as that interpretation undermines the rule of law. The HSF also proffered other relevant factors for judicial selection.
Acting deputy judge president Daffue, with judge Molitsoane concurring, held that the magistrates commission was not quorate when it sat to shortlist the candidates, which rendered the proceedings unconstitutional, unlawful and invalid.
“With regard to the magistrates commission’s interpretation and application of s174(2), the court held that the commission displayed a total disregard for legislation, regulations, their own shortlisting processes and the rights of whites to at least be considered during the shortlisting process. The court, therefore, set aside the appointments of magistrates already made by the minister of justice in this respect,” said the HSF.
African News Agency (ANA)