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 African citizen.
21. These jurisdictional requirements should be the starting point for any assessment of
an application for appointment as a magistrate.
Section 174(2): race and gender
22. In addition to the strict jurisdictional requirements in section 174(1), section 174(2) of
the Constitution provides for a further factor that must be considered when
magistrates are appointed: "[t]he need for the judiciary to reflect broadly the racial
and gender composition of South Africa".
2 See, for example, the discussion in Pierre de Vos and Warren Freedman (eds) South African Constitutional Law in Context (2014) 232. 3 The requirement of fitness and propriety is an objective criteria and must be assessed on relevant facts see Democratic Alliance v President of South Africa and Others 2013 (1) SA 248 (CC) at paras [32] - [37] 8
23. In understanding section 174(2), it is submitted that it has two principal purposes,
the one corrective and the other institutional.
24. The first purpose is to correct the persisting inequalities wrought by South Africa’s
history of violent discrimination, by providing a constitutional imperative to
ameliorate disproportionate racial and gender representation within the judiciary.4
25. The second purpose is to ensure the institutional legitimacy of the Courts, as being
representative of the very citizenry who rely on them for civil and criminal justice.5
26. Section 174(2) of the Constitution thus performs a valuable role in the appointment
process, in that it seeks to ameliorate inequality, and, at the same time, enhance the
legitimacy of the courts.
27. As an exercise of public power,6 the Commission's exercise of discretion cannot be
arbitrary or irrational, nor may it fail to consider relevant factors or take into account
irrelevant factors.7 Further, it must not, due to an incorrect interpretation of a
constitutional or other provision that empowers it to act, misconstrue the nature of its
power. Any exercise of discretion by the Commission in this manner will render any
decisions or recommendations that it makes unlawful, unconstitutional and invalid.8
4 Pierre de Vos and Warren Freedman (eds) South African Constitutional Law in Context (2014) at 234. 5 Pierre de Vos and Warren Freedman (eds) South African Constitutional Law in Context (2014) at 234. See too Susannah Cowen "Judicial selection in South Africa" (2010) Democratic Governance Rights Unit (DGRU) at 67-68. 6 See Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC) para 67, where the Constitutional Court stated that "…the JSC is engaged in a particularly important exercise of public power, which must be done lawfully and rationally"; and Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170 (SCA) paras [21] and [22]. It is submitted that the proposition that the Judicial Service Commission exercises a public power applies with equal force in relation to the Commission. 7 In Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC) para 67, the court stated that the Judicial Service Commission's exercise of public power in respect of its mandate to advise the president on the appointment of judges must be exercised lawfully and rationally. See too Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170 (SCA) para [43]. This conclusion applies equally to the Commission's exercise of public power. 8 President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC) para [34] and [148]; Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa 2000 (2) SA 674 (CC) paras [85] and [90]; Democratic Alliance v President of the
9
28. Above all, the Commission’s exercise of public power must be consistent with
section 174 of the Constitution, properly interpreted.
29. In order to assess whether the Commission's recommendations and decisions are
lawful, constitutional and valid, two questions arise. First, what are the factors that
the Commission must take into account when exercising its discretion? Second,
how must the Commission take these factors into account?
Factors to be considered
30. Given that the crux of this case comes down to the role that section 174(2) plays in
the appointment criteria, it is necessary, first, to deal with the possible interpretations
of section 174(2).
31. The interpretation that the respondents favour is that gender and racial
representivity under section 174(2) must be considered and satisfied first, before
any other consideration. In this case, racial and gender composition of the judiciary
may operate a gatekeeper function, which may disqualify a candidate from
appointment before any of the factors in section 174(1) are even considered.
32. A further, better, more constitutionally consonant interpretation, however, is that the
gender and racial considerations envisaged in section 174(2) constitute a factor that
must be taken into account by the Commission, together with all of the other
relevant factors, when it makes decisions and recommendations. All candidates
that meet the strict criteria under subsection 174(1) should be assessed against the
full remit of factors when deciding on judicial appointments. Those factors will
include appropriate gender and race representation.
Republic of South Africa and Others 2013 (1) SA 248 (CC) para [42]; and Johannesburg Stock Exchange v Witwatersrand Nigel Ltd 1988 (2) All SA 308 (A) at 321. 10
33. If one has regard both to the plain wording of section 174(2) and the purpose sought
to be achieved by its inclusion, as well as the context of section 174 and the
Constitution as a whole, it is clear that the second interpretation must be preferred.
34. This can be seen, firstly, from the words "must be considered" in section 174(2).
The meaning of "consider" is to "take into account" or to "think carefully about".9
From a textual perspective, therefore, the plain wording of section 174(2) cannot be
read to align with the first interpretation suggested above, for to do so would
effectively preclude the Commission from applying its mind to the full remit of its
very important constitutional task. In such a circumstance, quite apart from
"considering" or "taking into account" or "thinking carefully about" the racial and
gender composition of the judiciary, together with any other relevant factors, the
Commission would completely fetter its discretion by first imposing a race and
gender quota, without considering the merits of any application.
35. Moreover, such an approach would be inconsistent with the overarching ethos of the
Constitution, which, at a foundational level, eschews rigidity in the exercise of
discretion and requires a consideration and balancing of all relevant factors when
making a decision.10 This notion is principally encapsulated in the principle of
legality, as a part of the founding values of the Constitution. Thus, to adopt the
respondents’ interpretation of section 174(2) would be to adopt an interpretation that
obliges the Commission to ignore all other factors relevant to the appointment of an
individual who might be a competent judicial officer in a manner that undermines the
9 Catherine Soanes and Angus Stevenson (eds) Concise Oxford Dictionary 11ed (2009) at 304; Angus Stevenson (ed) Shorter Oxford English Dictionary: Deluxe Edition vol 1(A-M) 6ed (2007) at 496; and Chambers (ed) The Chambers Dictionary 13ed (2014) at 332. 10 In Democratic Alliance v President of the Republic of South Africa and Others 2013 (1) SA 248 (CC) paras 39 and 40, the Constitutional Court made this clear when it indicated that, in general, a failure to take into account relevant considerations impacts on the rationality of a decision, except in rare circumstances. This is because a failure to take into account relevant considerations "would constitute part of the means to achieve the purpose for which the power was conferred". 11
rule of law and the legitimacy, efficacy and competence, whether actual or
perceived, of the judiciary.
36. In line with the Constitution's values, any interpretation of section 174(2) that
hampers our collective societal commitment to non-racialism – one of the founding
values enshrined in section 1 of the Constitution – must be assiduously avoided.
Thus, when making judicial appointments, an evaluation of racial and gender
representation in the judiciary demands careful and contextual, rather than rigid,
consideration, alongside any other relevant factors.11
37. The interpretive conclusion, therefore, must be that the second interpretation of
section 174(2) is correct, and that considerations of race and gender cannot operate
as threshold requirements to judicial office, irrespective of all other factors.12
What factors must be taken into account?
38. It is submitted that there can be no closed list of relevant factors that ought to be
considered when the Commission makes recommendations regarding the
appointment of magistrates taking into account section 174 and regulation 3.
However, taking into account the prescribed requirements and the importance of the
provision, the following must always be taken into account by the Commission in
deciding on appointment of magistrates:13
11 Susannah Cowen "Judicial selection in South Africa" (2010) Democratic Governance Rights Unit (DGRU) at 70-71. See too Pierre de Vos and Warren Freedman (eds) South African Constitutional Law in Context (2014) at 235. Southern African Chief Justices' Forum Lilongwe Principles and Guidelines on the Selection and Appointment of Judicial Officers (2018) at 6 and 12 indicates that judicial officers should be appointed primarily on the basis of merit, which includes a candidate's competency, diligence and ethics; and further that, when making a decision regarding recommendation for appointment as a judicial officer, the decision should be "fair, objective and based on weighing the suitability of the candidate for appointment against the criteria set for that appointment". 13 These factors can be gleaned from a wide range of sources, including the following: Chief Justice Ismail Mahomed "The role of the judiciary in a constitutional state - address at the first orientation course for new judges" (1998) 115 SALJ 111 at 115; Chief Justice Ismail Mahomed "The independence of the judiciary" (1998) 115 SALJ 658 at 666; Susannah Cowen "Judicial selection in South Africa" (2010) Democratic Governance Rights Unit (DGRU) at 28-73; and Southern African Chief Justices' Forum Lilongwe
12
38.1 Knowledge of the law is an essential requirement. In order to apply the law in
any given matter, a judicial officer must of necessity have a good knowledge
and understanding of the law, which should include constitutional law.
Breadth of legal knowledge across multiple fields of law is desirable.
38.2 The specific area of expertise, if any, of the candidate, must inform the
ultimate question of the value that the individual will add to the judiciary if she
is appointed.
38.3 Legal experience, including, but not limited to, experience in litigation,
adjudicating, and application of the law.
38.4 The ability expeditiously to assimilate new aspects of the law, in order to
enable the prospective appointee effectively to deal with the varied types of
disputes that come to her.
38.5 The requisite analytical ability, which relates both to an understanding of the
issues before the prospective appointee and an ability to apply the law to
these facts.
38.6 Independence and impartiality, including characteristics of independent
mindedness in the sense of an ability to resist the external influences, whether
political or private, as well as internal influences, such as aspirations of
popularity.
38.7 To command the confidence of the public, she must have a good working
knowledge of the social, political and economic reality of South Africa.
Principles and Guidelines on the Selection and Appointment of Judicial Officers (2018) at 6-8. See too Pierre de Vos and Warren Freedman (eds) South African Constitutional Law in Context (2014) at 232- 237. 13
38.8 Related to the public confidence in the judiciary, is the issue of diversity,
including race and gender.
38.9 Temperament. A judicial officer must demonstrate humility, must be calm,
patient, open-minded, and she must be sensitive to the emotional state of the
litigating parties. This, however, does not mean that she must tolerate inept
counsel or allow her court to degenerate into disorder or disruption. In this
way, a certain degree of robustness and forthrightness is equally important.
38.10 The ability to communicate effectively with her colleagues, in writing and in
person, with ordinary members of the public when called upon to do so, and
individual litigants when matters are heard.
38.11 The public image of a judicial officer is also relevant. She should not make
rash or unguarded comments, which denigrate the standing or the integrity of
the judiciary in the eyes of the community.
38.12 Integrity and adherence to high standards of ethics.
38.13 Empathy, compassion and knowledge of local communities.
38.14 Administrative capacity and efficiency.
38.15 Commitment to the Constitution, constitutional values and an understanding of
the judicial role in a constitutional democracy.
How must the factors be taken into account?
39. When one has regard to section 174 of the Constitution, properly interpreted, and to
the function and objectives of the Commission, in considering the suitability of a
candidate for the role of judicial officer, none of the above factors, including race and
gender, will be decisive in all cases. 14
40. Rather, in order for a rational and lawful decision to be made, it is submitted that the
only constitutionally appropriate understanding of the factors is that the Commission
must apply its collective mind to, and adequately consider, all of the factors relevant
to the exercise of its discretion. Accordingly, the factors must be understood as
constituting a basket of relevant considerations, all of which are relevant and
material to the Commission's decision or recommendation, and which must be
considered in respect of each and every candidate, regardless of the circumstances.
41. Further, it is submitted that the weight to be accorded to each relevant consideration
on any given occasion must depend on the particular context at hand. The relative
importance of one factor as against the others will necessarily depend on the
specific role, court and location in question, as well as the needs of the judiciary at a
particular point in time.14 Thus, no factor can be accorded a predetermined weight,
in the abstract, to be applied in every case.
42. For example, the relative importance of race and gender as considerations will
necessarily depend on the extent of the racial and gender imbalances among
magistrates in South Africa (or in the jurisdiction of a specific court) at any given
moment in time. Accordingly, in the circumstances where there is overwhelmingly
disproportionate representation of white males as magistrates, the importance of
appointing black and female candidates as magistrates will be appreciably greater
than in circumstances where the court is more demographically representative of
South Africa. Similarly, the importance of one candidate's technical competence
relative to another will depend on other factors, such as the same two candidates'
relative judicial temperament or writing skills.
43. That the relevant factors cannot be accorded a predetermined weight does not,
however, necessarily mean that some factors are will not generally carry greater
14 See, for example, Susannah Cowen "Judicial selection in South Africa" (2010) Democratic Governance Rights Unit (DGRU) at 34-35 and 70-71. 15
weight than others, depending on the circumstances. Thus, for example, a given
candidate's technical competence or their race and gender, may, depending on the
circumstances, be deemed as relatively more important than his temperament or
public image. Nevertheless, an approach that affords pre-eminence to any one
factor, or obliges or enables the Commission to exclude a consideration and
evaluation of other relevant factors, must be rejected.
44. In essence, therefore, it is submitted that the Constitution requires the Commission,
when exercising its discretion, to consider meaningfully all factors relevant to the
appointment of judicial officers and magistrates in particular, and to do so in a
manner that does not elevate any one consideration as a decisive factor to the
exclusion of any of the others. Additionally, in evaluating candidates, the
Commission must compare the strengths and weaknesses of each candidate
against the others, taking into account the relative importance of each of the
different factors, as informed by the specific circumstances of the case.
PROBLEMS WITH THE COMMISSION’S APPROACH
Failure to consider relevant factors
45. It is a trite principle of law that, in order for a decision or exercise of discretion to be
lawful, the decision-maker must adequately apply his or her mind to the decision at
hand, which includes the requirement that a decision-maker must consider all
factors relevant to the decision, prior to making the decision.15 Accordingly, a failure
15 See Johannesburg Stock Exchange v Witwatersrand Nigel Ltd 1988 (2) All SA 308 (A) at 321; Ulde v Minister of Home Affairs and Another (Lawyers for Human rights as amicus curiae) [2009] 3 All SA 332 (SCA) paras [7] and [11; and Bangtoo Bros v National Transport Commission [1973] (4) All SA 573 (N) at 591. In Bangtoo, the court also emphasised that if "a factor of paramount importance is relegated to one of insignificance, and another factor, though relevant, is given weight far in excess of its true value" a decision-maker would also have failed to apply his mind properly. 16
to consider relevant factors constitutes a ground for the judicial review of a decision
on the ground that it is unlawful as the decision-maker has failed to apply his mind.16
46. From a perusal of the record of the shortlisting proceedings by the Commission, it is
evident that, the Commission, from the outset, began its evaluation of the suitability
of each candidate for appointment as a magistrate, by considering the racial and
gender composition of magistrates in each of the Bloemfontein, Botshabelo and
Petrusburg districts. This approach can be seen from the manner in which the
Commission commenced its shortlisting procedure in respect of each district, which
commenced with questions and answers regarding the demographic breakdown of
each district.17
47. Whilst in accordance with the proper interpretation of section 174 of the Constitution
proffered earlier, the racial and gender composition of magistrates in these districts
is certainly a highly relevant, and indeed mandatory, consideration that needed to be
taken into account when determining the suitability of a candidate for appointment
as a magistrate, it cannot be used rigidly as disqualifying factor without assessment
of the other requirements.
48. A complete consideration of the record evidences that quite apart from considering
all of the factors relevant to its determination of the suitability of each candidate for
appointment as a magistrate, the Commission elevated the consideration of race
and gender to a decisive factor, to the exclusion of other factors, such as the
knowledge, skill and experience of candidates who did not meet the Commission's
desired race and gender requirements.
49. As an example, the applicant in this matter is a case in point. In the Commission's
shortlisting proceedings for the district of Petrusburg, Ms Nalia, the acting chief
16 For a general exposition on these principles, see Cora Hoexter Administrative Law in South Africa 2ed (2012) at 316-318. 17 Record of proceedings bundle 1, pages 16-20 (Botshabelo), 29-31 (Petrusburg) & 42-48 (Bloemfontein). 17
magistrate for Cluster 8 states "[t]his position was previously occupied initially by as
I remember Mr Mchaiya and then he way - 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".18 To which she was
met with a response by the Chairperson "No, we are not looking for white males in
your cluster at all".19 The same approach was taken in the shortlisting proceedings
for the Botshabelo district, specifically in respect of the applicant, where an
unidentified member of the Commission refers to the applicant, and the reference is
met with statements concerning race and gender, after which no additional
considerations are mentioned.
50. Much like the applicant, the same can be said for each instance in which the
Commission considered candidates who did not fall within the Commission's desired
race group, particularly regarding white candidates. In respect of these candidates,
the Commission only meaningfully (and, at times, exclusively) took into account
considerations of race and gender, to the exclusion of all of the other factors
relevant to the suitability of a given candidate for appointment as a magistrate,
including considerations such as knowledge of the law, legal expertise, experience,
temperament, writing and communication skills, administrative efficiency and
analytical ability.
51. In doing so, the Commission elevated one relevant consideration above, and
sometimes to the exclusion of, all of the other relevant considerations, and thereby
failed either meaningfully, or omitted entirely, to consider other relevant and material
considerations in respect of certain candidates.
18 Record of proceedings bundle 1, page 29, lines 5-9 19 Record of proceedings bundle 1, page 29, lines 10-11 18
52. Accordingly, it is submitted that the Commission's shortlisting proceedings,
decisions and ultimate recommendations are unlawful, unconstitutional and invalid
and, therefore, fall to be reviewed and set aside by this Court in terms of
section 6(2)(e)(iii) of PAJA and/or the principle of legality, for a failure to consider
relevant considerations material to the decision at hand.
53. Additionally, as a minimum requirement of lawfulness, every exercise of public
power must be rational.20 Therefore, if a decision-maker exercises its power in an
irrational manner, it will be fall foul of the minimum prescripts of the Constitution, and
will accordingly be unlawful, unconstitutional and invalid.21
54. Drawing from the above discussion regarding the Commission's failure to consider
material and relevant considerations in respect of candidates for appointment as
judicial officers, the Commission's shortlisting proceedings, decisions and
recommendations are furthermore irrational.22 A failure to consider factors material
to the decision of whether or not to recommend a given candidate to be appointment
as a magistrate means that the decision is not rationally related to the purpose for
which the power was granted to the Commission,23 namely to ensure that
candidates that are recommended for appointment meet the requirements of section
174 of the Constitution, the Magistrates Act and the Regulations, which necessarily
20 See Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa 2000 (2) SA 674 (CC) para 85; and Democratic Alliance v President of the Republic of South Africa and Others 2013 (1) SA 248 (CC) 21 Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa 2000 (2) SA 674 (CC) para [90]. 22 Democratic Alliance v President of the Republic of South Africa and Others 2013 (1) SA 248 (CC) paras [39]-[40] and [86]. 23 In Democratic Alliance v President of the Republic of South Africa and Others 2013 (1) SA 248 (CC) para [40], the Constitutional Court indicated that if a "failure to take into account relevant material is inconsistent with the purpose for which the power was conferred, there can be no rational relationship between the means employed and the purpose", which, therefore, renders the decision irrational. In the result, the Constitutional Court concluded (in para [86]) that the failure to consider the relevant facts in question meant that the ultimate decision was irrational, because it was not rationally related to the purpose for which the power was conferred. The same reasoning is equally applicable to this case. 19
requires a consideration of whether they are suitably qualified as well as fit and
proper, taking into account all relevant factors.24
Error of law
55. An exercise of discretion or a decision or recommendation is reviewable, and may
be set aside, on the basis that the decision-maker made an error of law. Thus, if the
Commission incorrectly or mistakenly interpreted the law applicable to the
appointment of judicial officers in a manner that resulted in it misconstruing its
powers or precluded a proper exercise of its discretion, then it will have committed
an error of law.25
56. From the record of the shortlisting proceedings, it is clear that the Commission
misconstrued the nature of its powers in a manner that precluded it from properly
exercising its discretion. The record illustrates that the Commission considered the
racial and gender breakdown of magistrates in the relevant districts and concluded
that, because of the requirements of section 174(2) of the Constitution and the
Magistrates Act, the regulations and policies that give effect to section 174(2), the
Commission was precluded from recommending the appointment of white male (and
sometimes white female) magistrates, regardless of any other relevant
considerations (which, it seems, according to the Commission must not to be
considered at all).
57. Although this can be seen from a perusal of the record as a whole, and the extract
regarding the applicant above, the following extracts from the record make this plain:
24 The purpose of the Commission's powers can be gleaned from the objects of the Commission, as set out in section 4(a) of the Magistrates Act; the requirements for appointment, as set out in regulation 3(1) of the Regulations; and, most importantly, from the purpose of section 174 of the Constitution. 25 Premier of the Western Cape v Overberg District Municipality 2011 (4) SA 441 (SCA) paras [37]-[38]. See too President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC) para 148; Governing Body of Mikro Primary School and Another v Western Cape Minister of Education and Others [2005] 2 All SA 37 (C) at 52; and Governing Body]; and Minister of Education (Western Cape) v Mikro Primary School Governing Body [2005] 3 All SA 436 (SCA) para 44. 20
In considering candidates for Petrusburg:
"Chairperson: Not white. Just female, but not white. Ms Nalia: Is that the position? Chairperson: Yes Ms Nalia: Then we are looking definitely at - but then I was looking at - but as you said we have got to be very careful about the interpreter. So I am going to take that into account. Unidentified person: Take away the white. Ms Nalia: All right. Unidentified person: Take away the white" ... "Ms Nalia: Female whites, are we not accepting? Unidentified person: No Ms Nalia: All right."26 … "Chairperson: Nine years experience. We are running out of - let us go down. May be we can find a…(intervention). Unidentified person: Indians and coloureds. Chairperson: Anything you need, except for white."27 … "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"28
In considering candidates for Bloemfontein, debating whether or not white candidates may be considered for appointment:
"Ms Shlowa: Chair, I do not know. I would rather we do not, if we can find more of the other two races that are lacking, then we do not consider any white person. …
26 Record of proceedings bundle 1, page 31, lines 15-17 27 Record of proceedings bundle 1, page 32, lines 21-24 28 Record of proceedings bundle 1, page 33, lines 19-21 21
Unidentified Person: No Chair, I share the sentiments as Mr Mghona. Let us rather balance the demographics first. If we fail then we can be able to look into the white females. ... Chairperson: Thank you Nalia and I am of the view that if we have 17 white persons in the province already, that is enough.29 ... Chairperson: He thought Cupido has not been short listed but he is now. I see his name. Then we go off to - you can narrow [our] list to coloured females only please. It will be faster that way."30
58. As discussed above, the considerations mandated by section 174(2) simply
constitute one of the factors which the Commission is obliged to consider and is not
accorded any pre-eminence over the other considerations. Additionally, interpreted
and understood correctly, the section 174(2) factors serve an entirely different
purpose to factors that are relevant to section 174(1), and should only be considered
once the Commission is satisfied that section 174(1) is satisfied.
59. Thus, having reached the conclusion, at multiple stages of the shortlisting process,
that the section 174(2) considerations of race and gender, either precluded
recommendations for the appointment of white male (and sometimes white female)
candidates, or that they granted the Commission the authority to exclude white male
(and sometimes white female) candidates from consideration entirely, the
Commission made an error of law by incorrectly interpreting the constitutional and
legislative provisions, and thereby misconstrued its powers and failed to properly
exercise its discretion.
60. The Commission thus acted unlawfully. Accordingly, its shortlisting proceedings,
decisions and recommendations fall to be set aside by this Court in terms of section
29 Record of proceedings bundle 1, pages 45-47 30 Record of proceedings bundle 1, page 59, lines 17-20 22
6(2)(d) of PAJA and/or the principle of legality, on the ground that it was materially
influenced by an error of law.
Ulterior purpose
61. An exercise of discretion will be unlawful, unconstitutional and invalid if it is taken for
a purpose ulterior to, or not authorised by, the empowering provision that grants the
decision-maker the power or discretion to make a decision.31
62. As will be clear from what has been stated above, and from the record of the
shortlisting proceedings, it is evident that the Commission utilised the mandate of
section 174(2), and the Magistrates Act and Regulations for the purpose of
excluding white male (and sometimes female) individuals from its assessment of
suitable candidates for appointment as magistrates. Further, it is clear that, based
on the requirements of race and gender, in its shortlisting proceedings, the
Commission introduced a form of quota policy, in terms of which the Commission
would predetermine the number of individuals from each race and gender that it
required, and would then proceed to consider a candidate's suitability for
appointment as a magistrate on that basis.
63. That is not to say that the purpose for which the Commission utilised section 174(2)
is in any way immoral or repugnant, however. An ulterior purpose need not be bad
or immoral, in order for it to be unlawful. Rather, the question is whether or not the
purpose for which the power was used is actually contemplated by the empowering
provision.32 If it is not, and moreover, if it is inconsistent with the purpose of the
31 See, for example, the following Van Eck NO & Van Rensburg NO v Etna Stores 1947 (2) SA 984 (A); Goldberg and Others v Minister of Prisons and Others 1979 (1) SA 12 (A) at 996-998; University of Cape Town v Ministers of Education and Culture (House of Assembly and House of Representatives) 1988 (3) SA 203 (C) at 212; and National Director of Prosecutions v Zuma 2009 (2) SA 277 (SCA) para 38. 32 Van Eck NO & Van Rensburg NO v Etna Stores 1947 (2) SA 984 (A) at 996-998. See too Cora Hoexter Administrative Law in South Africa 2ed (2012) at 307-310 for a discussion generally on this point. 23
empowering provision, then the purpose for which the power was exercised, and the
consequent act or decision, will be unlawful.
64. It will be recalled that the purpose of section 174(2) is twofold: (a) to act as a type of
affirmative action provision, and (b) to ensure the legitimacy of the judiciary. In
addition, these purposes must be understood in light of the subsection's role in
section 174 as a whole, namely to constitute a factor, albeit a significant one, that
must be considered when assessing the suitability of a candidate for appointment as
a judicial officer.
65. Taking the above into account, it is submitted that the use of race and gender for the
purpose of excluding candidates of a particular race or gender altogether, and,
further, to introduce a form a quota policy, is inconsistent with, and constitutes an
affront to, the purpose of section 174(2) of the Constitution.
66. That the respondents seek to rely on section 9(2) of the Constitution, together with
section 9(2) jurisprudence, in order to justify the Commission's approach is of no
consequence and is misplaced. Whilst section 9(2) and, specifically section 174(2)
itself, certainly mandate remedial measures, they simply do not, and it is submitted
cannot, be read to authorise the use of race and gender in a manner that offends
section 174, and the principles and purpose of the Constitution, as a whole.
67. To permit an decision-maker to exclude individuals entirely from an assessment for
appointment as a judicial officer on the basis of race and gender alone, with no
regard to any other relevant considerations, and to adhere to a rigid quota-like policy
of (non)appointment, would be to permit (if not require) irrational and arbitrary
decisions, which would necessarily offend the founding values of the Constitution,
namely the rule of law (specifically the principle of legality) and equality under the
law. 24
68. From the Constitutional Court's jurisprudence, the primary characteristic of a quota
is that it is rigidly applied, rather than a flexible numerical target.33 The record of
proceedings illustrates that the Commission effectively applied a rigid (quota-like)
policy of excluding white male and female candidates from its considerations, which,
it is submitted, amounts to a display of arbitrariness, caprice and naked
preference.34
69. In the result, the Commission quite evidently exercised its discretion for an ulterior
purpose, which, therefore, rendered the Commission's shortlisting proceedings,
decisions and recommendations unlawful, unconstitutional and invalid.
Fettering of discretion
70. A decision-maker, when exercising its discretion and reaching a decision, may not
limit or "fetter" its discretion by rigidly applying, or adhering to, policies or guidelines
developed to assist it with making decisions, regardless of the circumstances.35
This is because to do so effectively precludes the decision-maker from exercising its
discretion in any real sense, by preventing it from applying its mind to the peculiar
facts and circumstances of each case.36 Thus, where a decision-maker simply
adheres rigidly to an established policy to the extent that it applies the policy as if it
is a rule, without independently considering whether the facts of the case and other
33 South African Police Service v Solidarity obo Barnard 2014 (6) SA 123 (CC) para 54; and Solidarity and Others v Department of Correctional Services and Others 2016 (5) SA 594 (CC) para 51. 34 Minister of Justice and Another v SA Restructuring and Insolvency Practitioners Association and Others 2017 (3) SA 95 (SCA) paras 29-32, where the Supreme Court of Appeal stated the following: "[remedial measures] must not be arbitrary, capricious or display naked preference. If they do they can hardly be said to achieve the constitutionally authorised end. One form of arbitrariness, caprice or naked preference is the implementation of a quota system, or one so rigid as to be substantially indistinguishable from a quota. This explains why s 15(3) of the Employment Equity Act 55 of 1998 permits preferential treatment and numerical goals, but disallows quotas". It should be noted, however, that in Minister of Justice and Another v SA Restructuring and Insolvency Practitioners Association and Others 2018 (5) SA 349 (CC) para 79, the Constitutional Court, whilst noting that it has in the past indicated that the use of quotas may be constitutionally impermissible, it did not, nevertheless, find it necessary to decide whether quotas are outlawed in terms of section 9(2) of the Constitution. 35 Richardson v Administrator, Transvaal 1957 (1) SA 521 (T) at 530; and Kemp NO v Van Wyk 2005 (6) SA 519 (SCA) para 1. 36 Richardson v Administrator, Transvaal 1957 (1) SA 521 (T) at 530. For a general discussion on fettering of discretion, see Cora Hoexter Administrative Law in South Africa 2ed (2012) 318-322. 25
considerations justify a departure from the policy, the decision-maker thereby
unlawfully fetters its discretion.37
71. The record of the shortlisting proceedings demonstrates that the Commission, after
examining the demographic breakdown of judicial officers in the districts, developed
a policy in terms of which it would not consider the suitability of any white male and
female candidates for appointment as magistrates. After adopting this policy, the
Commission rigidly applied it throughout the conduct of its proceedings, regardless
of the circumstances and the qualities of individual candidates. A clear example of
this is when Ms Nalia states, in response to comments by other members of the
Commission, that "[t]he person that I thought would be a good candidate, but we
said it cannot be a white female".38
72. In applying this policy in such a rigid fashion, the Commission thereby prevented
itself from properly exercising its discretion as to whether the excluded candidates
may nevertheless be suitable for appointment as magistrates. To fetter its discretion
in this manner prevents the Commission from exercising its discretion in the manner
intended by section 174, the Magistrates Act and the Regulations.
CONCLUSION
73. The Commission’s approach to assessment of applications for the position of
magistrate is based on an incorrect understanding and application of section 174 of
the Constitution and renders the Commissions shortlisting proceedings and the
decision to recommend candidates to the Minister unlawful, irrational and
unconstitutional.
37 Kemp NO v Van Wyk 2005 (6) SA 519 (SCA) para 1, where the court stated that "[w]hat is required is only that [the decision-maker] does not elevate principles or policies into rules that are considered to be binding with the result that no discretion is exercised at all". 38 Record of proceedings bundle 1, page 33, lines 19-21 26
Adv BEN WINKS
Counsel for the amicus curiae
Johannesburg
27 September 2019