Press Release: HSF To Appear As Amicus In The Supreme Court Of Appeal In The Magistrates’ Commission Hearing

Tomorrow – 01 September 2021 – The Supreme Court Of Appeal Will Hear Argument In The Magistrates’ Commission’s Appeal Against The Bloemfontein High Court’s Judgment Concerning The Appointment Procedure Followed For Magistrates. The HSF Will Appear As Amicus To Put Forward Arguments On The Proper Interpretation Of Sections 174(1) And (2) Of The Constitution.

Richard Lawrence, the respondent in the Supreme Court of Appeal (“SCA”), has been an acting magistrate in Bloemfontein since 2015 and head of office of Petrusburg Magistrate Court since 2016. In 2018, the Magistrates’ Commission advertised for various vacancies in Bloemfontein, Botshabelo and Petrusburg. Lawrence applied for all of them. He was not shortlisted for any of the vacancies despite receiving stellar recommendations from his superiors and statistics indicating how the performance of the court had improved during his term. In fact, no white person was shortlisted for any of the vacant posts.

Lawrence approached the Bloemfontein High Court (“High Court”) to review the decision not to shortlist him. The Magistrates’ Commission, along with the chairperson of the Appointment Committee, the Minister of Justice and Constitutional Development and the Acting Chief Magistrate of the Bloemfontein Magistrates’ Court all opposed the application and argued that they were entitled to exclude Lawrence on the basis of section 174(2) of the Constitution, which provides that the racial and gender composition of the judiciary must be considered when making appointments.

The Helen Suzman Foundation (“HSF”) applied successfully to be admitted as amicus and advanced arguments on the correct interpretation and proper application of sections 174(1) and (2) of the Constitution.

The High Court agreed with the HSF and found in favour of Lawrence. The High Court set aside the shortlisting proceedings, and the consequent recommendations and appointments, as unlawful and unconstitutional.

The Magistrates’ Commission has approached the SCA on appeal, which will be heard tomorrow – 01 September 2021.

The main issues to be decided at tomorrow’s hearing are:

  1. Whether the Magistrates’ Commission is correct in arguing a non-joinder of the successful candidates;
  2. Whether the Appointment Committee’s meeting in respect of the Bloemfontein shortlisting was quorate having regard to the provisions of section 5(4) read with section 6(7) of the Magistrates’ Court Act; and
  3. Whether the Appointment Committee acted constitutionally in terms of section 174(2) of the Constitution and Regulation 5 of the Magistrates’ Court Act when it failed to shortlist Lawrence on the basis of race alone.

The HSF has advanced arguments on the third issue. The HSF submits that section 174(2) does not allow for a rigid exclusion of candidates for judicial appointment on demographic grounds. Section 174(2) is not a disqualifying criterion but rather an important factor that needs to be considered. It is in the interests of justice, and the independence of the judiciary, that all suitably qualified candidates must, at the very least, be considered for appointment to judicial office notwithstanding their race or gender.

The High Court’s Judgment can be found here.

The HSF’s Heads of Argument can be found here.

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