Magistrate’s Commission out of line

The Supreme Court of Appeal (SCA) has upheld a Free State High Court ruling against the Magistrate’s Commission, after it snubbed an acting magistrate for a permanent position because he was white.

Acting Judge of Appeal Sulet Potterill, who wrote the appellate court’s majority judgment, found the approach adopted was inconsistent with the constitution and the relevant legislation.

“Rather than considering race as but one of factors, albeit an important one, the committee set out to exclude candidates, including the respondent, on the basis of their race. Such an approach does not meet the threshold set by our courts and cannot be countenanced,” she said.

In 2018, Richard Lawrence, who was at the time an acting magistrate in Bloemfontein, as well as head of office in Petrusburg, responded to an advertisement the Magistrate’s Commission had put out in an effort to fill permanent positions around the province.

Despite his impressive track record and being highly recommended, he was not shortlisted. Lawrence wound up taking the commission to court over the slight and in 2019, the Free State High Court found in his favour.

A transcript of the shortlisting proceedings put up in court recorded various comments made about the candidates including: “Not white. Just female, but not white” and “Anything you need, except for white”.

The high court found this showed the committee’s “total disregard” for the relevant legislation and processes as well as “the rights of whites to at least be considered during the shortlisting process”. It declared the proceedings unconstitutional and invalid and set them aside.

The commission then approached the SCA in the hopes of overturning the High Court’s ruling. But its appeal bid was dismissed on Thursday.

In the ruling, Potterill said the competence and experience of Lawrence was not in dispute, pointing to statistics which had consistently ranked the Petrusburg Magistrate’s Court among the best performing courts in the country under his leadership, and that he met all of the requirements for consideration for permanent appointment but was “simply excluded from consideration for any of the posts”.

The transcript of proceedings, she said, suggested “the application of a rigid exclusionary criterion based on race” and “a targeted exclusion of white candidates”.

“There ought to have been no fixed order or sequence of prioritisation of the listed criteria, but rather a consideration of all of the relevant criteria and, where necessary, a balancing of the one against the other.

“Depending on the circumstances, certain factors may have to assume greater significance than the others, but the committee cannot adopt a blanket approach that prioritises one factor to the exclusion of all other factors. In adopting a blanket exclusion, as happened here, the committee impermissibly fettered its own discretion.”

A targeted exclusion of white candidates