'Targeted' exclusion of white males: SCA rules against Magistrates' Commission

03 December 2021 - 15:40
The Supreme Court of Appeal held that the shortlisting process of who should fill magistrate posts in the Free State in 2019 was rigid, inflexible and quota-driven. Stock photo.
The Supreme Court of Appeal held that the shortlisting process of who should fill magistrate posts in the Free State in 2019 was rigid, inflexible and quota-driven. Stock photo.
Image: 123RF/skycinema

The shortlisting process of who should fill magistrate posts in the Free State in 2019 was “rigid, inflexible and quota-driven”.

This was the observation made by the Supreme Court of Appeal (SCA) on Thursday, when it dismissed an appeal by the Magistrates' Commission.

At the heart of the appeal is the legality and constitutionality of the shortlisting process of the commission and its decision to overlook Richard John Lawrence, a white male who has been an acting magistrate for four years.

Lawrence applied for the position of a permanent magistrate in response to advertisements for positions in Bloemfontein, Botshabelo and Petrusburg. However, he was not shortlisted for any of the posts.  

Aggrieved by this snub, he approached the high court in Bloemfontein for relief.

Lawrence wanted the court to review and set aside the shortlisting proceedings conducted for the vacancies of magistrates for these districts.

He also asked for an order directing the commission to reconsider the applications of all qualifying candidates who applied for the posts.

In a judgment passed in December 2019, the high court declared that the shortlisting proceedings for the three posts were unlawful. The court also set aside the appointments, by the minister of justice, of the magistrates for the districts of Bloemfontein, Botshabelo and Petrusburg.

The Magistrates' Commission subsequently applied for leave to appeal against the whole judgment of the Free State High Court.

In its judgment, the SCA said the competence and experience of Lawrence was not in dispute. It said the commission had firmly located the reason for his exclusion on his race and gender.

No flexibility or deviation

In a majority judgment in which three other judges concurred, acting judge of appeal Sulet Potterill said what was clear from the record provided is that the commission was fixated on excluding candidates from a particular group.

She said no flexibility or deviation from that targeted group would under any circumstances have been considered.

“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,” she said.

She said 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 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.”

She said any white candidate, no matter how good, was excluded. 

In a separate judgment, judge of appeal Visvanathan Ponnan said the record of deliberations by the commission showed that what occurred was indeed “rigid, inflexible and quota-driven”.

“The blanket exclusion of white candidates, no matter their strengths, is disconcerting,” Ponnan said.

He said regrettably, not even excellence could open the door to the consideration of a white candidate.

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