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In the High Court of South Africa (Free State Division, Bloemfontein)

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In the High Court of South Africa (Free State Division, Bloemfontein) IN THE HIGH COURT OF SOUTH AFRICA (FREE STATE DIVISION, BLOEMFONTEIN) Case no: 1070/19 In the matter between: RICHARD JOHN LAWRENCE Applicant and THE MAGISTRATES COMMISSION First Respondent ZOLA MBALO N.O. CHAIRPERSON OF THE APPOINTMENTS COMMITTEE OF THE MAGISTRATES COMMISSION Second Respondent THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT Third Respondent CORNELIUS MOKGOBO N.O ACTING CHIEF MAGISTRATE BLOEMFONTEIN CLUSTER "A". Fourth Respondent and THE HELEN SUZMAN FOUNDATION Amicus Curiae WRITTEN SUBMISSIONS OF THE HELEN SUZMAN FOUNDATION AS AMICUS CURIAE 2 TABLE OF CONTENTS Table of Contents Page No INTRODUCTION ............................................................................................................... 3 THE AMICUS CURIAE ...................................................................................................... 5 APPOINTMENT OF JUDICIAL OFFICERS ....................................................................... 5 INTERPRETATION OF SECTION 174 OF THE CONSTITUTION ..................................... 7 Section 174(1): jurisdictional requirements ....................................................................... 7 Section 174(2): race and gender ....................................................................................... 7 Factors to be considered ................................................................................................... 9 PROBLEMS WITH THE COMMISSION’S APPROACH ................................................... 15 Failure to consider relevant factors .................................................................................. 15 Error of law ...................................................................................................................... 19 Ulterior purpose ............................................................................................................... 22 Fettering of discretion ...................................................................................................... 24 CONCLUSION ................................................................................................................. 25 3 INTRODUCTION 1. This matter concerns the manner in which the Magistrates Commission ("the Commission"), established in terms of section 2 of the Magistrates Act, 1993 ("Magistrates Act"), carries out its function of providing recommendations to the Minister of Justice and Constitutional Development ("the Minister") regarding the appointment of magistrates. 2. More specifically, it concerns the considerations to which the Commission must have regard when evaluating a particular candidate's suitability as a prospective magistrate, and, ultimately, in deciding whether or not to recommend a candidate for appointment as a magistrate to the Minister. 3. The Helen Suzman Foundation ("HSF") submits that the fundamental legal issue, and crux of this matter, rests on the correct and constitutionally compliant interpretation and application of section 174 of the Constitution , and concerns: 3.1 the correct interpretation and application of sections 174(1), (2) and (7) of the Constitution, read with section 10 of the Magistrates Act and the regulations promulgated pursuant to the Magistrates Act ("the Regulations");1 3.2 how the Commission should properly exercise its function to recommend candidates for appointment as a magistrate; and 3.3 whether the Commission properly exercised its function, in applying sections 174(1) and (2) of the Constitution, when it conducted the impugned shortlisting proceedings as a part of its process of providing recommendations to the 1 Regulations for Judicial Officers in the Lower Courts, 1993 in GN R361 GG 24568 of 11 March 1994, as amended. 4 Minister regarding the appointment of magistrates in the districts of Bloemfontein, Botshabelo and Petrusburg ("the shortlisting proceedings"). 4. The review application in this matter challenges the Commission's shortlisting proceedings as unlawful and invalid on the basis of, inter alia, the manner in which the Commission conducted its proceedings and the (limited) factors to which the Commission had regard when it assessed the suitability of candidates. 5. The record of the shortlisting proceedings illustrates a clear approach followed by the Commission, in terms of which the Commission first considered the racial and gender demographics of each district, proceeded to decide on the number of magistrates of each particular race and gender that it preferred, and then conducted its assessment of candidates on that basis. 6. The record shows that the Commission elevated the factors of race and gender above all other factors and to the exclusion of all other factors, in order the limit the number of candidates that it would consider any further. 7. The result and purpose was to exclude white candidates (including the applicant)from consideration, regardless of other factors relevant to their suitability for appointment as magistrates. This exclusion means that any white candidate will not be recommended to the Minister and will thus not be considered for appointment by the Minister. The shortlisting proceedings are inherently linked to, and form an integral part of, the exercise of the Commission's recommendation powers and the Minister's ultimate appointment powers. 8. As will be expanded on below, HSF submits that the approach followed in assessing the suitability of candidates in the shortlisting proceedings falls foul of section 174 of the Constitution read with the Magistrates Act and the Regulations, and is therefore unlawful, unconstitutional and invalid. Accordingly, the shortlisting proceedings fall to be reviewed and set aside by this Court. 5 THE AMICUS CURIAE 9. HSF is a non-governmental organisation whose objectives are "to defend the values that underpin our liberal constitutional democracy and to promote respect for human rights." 10. HSF's objectives are closely aligned with the fundamental principles of constitutionalism to be decided by this Court. The issues in this matter are aligned with the work of HSF as the proper appointment of judicial officers, including magistrates, is critical to our constitutional democracy and the rule of law. 11. HSF was permitted to intervene as amicus curiae in this matter by consent, in terms of Rule 16A of this Court, which was filed with this Court's attention on 20 September 2019. APPOINTMENT OF JUDICIAL OFFICERS 12. Section 174 of the Constitution governs the appointment of judicial officers, and provides in relevant part as follows: "(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. … (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, 6 or disciplinary steps against, these judicial officers take place without favour or prejudice." 13. The legislation envisaged in section 174(7) of the Constitution for the appointment of magistrates is the Magistrates Act. 14. Section 10 of the Magistrates Act provides that "[t]he Minister shall, after consultation with the Commission, appoint magistrates in respect of lower courts under and subject to the Magistrates' Courts Act". 15. Regulation 4(3) of the Regulations provides that "if the Commission, after due consideration of an application [for appointment as a magistrate], is of the opinion that the candidate is suitable for the office applied for, the Commission must forward the documents referred to in this regulation, together with a recommendation on the appointment of the candidate to the office in question, to the Minister". 16. Regulation 3 of the Regulations sets the requirements for appointment as a magistrates, and states: "(1) A person may not be appointed as a magistrate or an additional magistrate of a district court, or as a magistrate of a regional court, unless he or she is- (a) appropriately qualified; (b) a fit and proper person; and (c) a South African citizen" 17. The critical questions for the purposes of these submissions are what factors must be assessed by the Commission in making recommendations to the Minister and how these factors must be assessed. 7 INTERPRETATION OF SECTION 174 OF THE CONSTITUTION 18. As the overarching provision relating to the appointment of judicial officers, section 174 both provides certain strict requirements for appointment as well as the framework to assess other legislative provisions. Section 174 must inform the interpretation of any laws, regulations, policies or procedures that govern the appointment of judicial officers; and it is furthermore clear that that the lawfulness of any appointment procedure in respect of judicial officers must ultimately be tested against section 174. Section 174(1): jurisdictional requirements 19. Section 174(1) of the Constitution sets out two strict requirements for the appointment of any judicial officer in that only a "fit and proper" and "appropriately qualified" person may be appointed.2 These strict constitutional requirements are objectively ascertainable and must be rationally assessed.3 20. Regulation 3 of the Regulations reiterates these requirements and adds an additional requirement that the appointee must be a South
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