‘Skin colour counted’ in Free State magistrates’ appointment – high court

The High Court in Bloemfontein has slammed as “unlawful and unconstitutional” the process by which Free State magistrates were appointed by the Appointments Committee of the Magistrates Commission.

“The order by the High Court was only in respect of the shortlisting proceedings and the subsequent recommendations of the Appointments Committee for the vacancies in Bloemfontein, Botshabelo and Petrusburg,” said Chrispin Phiri, spokesperson for Justice Minister Ronald Lamola.

“A total of seven vacant offices are affected. This judgment will be discussed at the next meeting of the Magistrates Commission scheduled for January 31.”

Passed over for consideration for a permanent post because he was white, despite receiving accolades from a senior and acting chief magistrate, acting magistrate Richard Lawrence took it to the courts.

Based at Petrusburg, under Lawrence’s guidance the court apparently became the best-performing court in the Free State and the 15th best in the country according “to NPA statistics”.

“Take away the white” was one statement highlighted by Justice Johann Daffue. Others by the committee chair magistrate Zola Mbalo, he found more problematic.

“And if we take her (a black female – note by Daffue) then we are going to need persons to compare her with and there are no other females. So let us look at males, African, coloured and Indian,” said by Mbalo, was the other.

“It is evident the Commission concluded, incorrectly and unlawfully so, a female should not or could not be compared with male persons. This is discrimination in a pure form,” said Daffue.

Amicus curae the Helen Suzman Foundation said in a statement it was clear from the record of the private deliberations of the Magistrates Commission that race was the determining factor in the shortlisting process.

“This resulted in no male or female white candidates being considered for shortlisting for any of the magisterial vacancies available,” the HSF statement read.

“The Magistrates 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.

“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.”

Daffue, with Justice Pitso Molitsoane concurring, said the committee had acted as gatekeeper in preventing any whites to be interviewed.

Phiri disputed this, and said it was important to note that, despite the outcome of this particular matter, males and females of all races were indeed considered, shortlisted and subsequently appointed to magistrates’ positions.

“In this judgment the applicant is white and, although the applicant himself was not appointed, 15 of the 207 new appointments are white (nine female and six white). Therefore no race group was excluded from being considered for appointment,” Phiri said.

Read the full judgment here:

Judgment of the Bloemfontein High Court 12122019 by Carina Koen on Scribd

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