Appointment of Magistrates
30 April 2022 16:00 by Merilyn Kader
In Magistrates’ Commission and Others v Lawrence and Another (Helen Suzman Foundation as amicus curiae)  1 All SA 321 (SCA), a non quorate Appointments Committee, therefore decisions taken, including the shortlisting of candidates, had to be set aside. Process fundamentally flawed.
By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.
Constitutional and administrative law - Appointment of magistrates: The respondent (Mr Lawrence), an acting magistrate, applied for the position of a permanent magistrate in response to advertisements for such positions in the magisterial districts of Bloemfontein, Botshabelo and Petrusburg. He was not shortlisted for any of the posts. He approached the High Court for relief, and the shortlisting proceedings were declared unlawful and unconstitutional. That led to an appeal by the Magistrates Commission in Magistrates’ Commission and Others v Lawrence and Another (Helen Suzman Foundation as amicus curiae)  1 All SA 321 (SCA).
The court first considered two ancillary issues. First, the respondent contended that in terms of s 5(2), read with s 6(7), of the Magistrates Act 90 of 1993 (the Act), the Appointments Committee (the Committee) was not quorate when candidates were shortlisted for appointment to Bloemfontein. Second, the appellants contended, in limine, that, as all the other shortlisted candidates had a direct and substantial interest in the outcome of the proceedings, the respondent’s failure to join them precluded the court from granting the relief sought by the respondent until they had been joined as parties to the proceedings. However, the non-joinder point was later abandoned.
The Committee was not quorate with the result that the decisions taken at that meeting, including the shortlisting of candidates for Bloemfontein, could not stand and accordingly had to be set aside.
On the merits, the court set out the provisions of ss 174(1) and 174(2) of the Constitution regarding the appointment of judicial officers. The qualifications, experience, and suitability of Mr Lawrence for the post could not be faulted. The Committee nevertheless appeared to adopt a targeted exclusion of white candidates and was consequently not prepared to consider any of the other criteria in relation to Mr Lawrence. Rather than considering race as but one of factors, albeit an important one, the Committee set out to exclude candidates, including the respondent, based on their race. There should not have been any fixed order or sequence of prioritisation of the listed criteria, but rather a consideration of all the relevant criteria and, where necessary a balancing of the one against the other. Insofar as the process was rigid, inflexible, and quota-driven, it was fundamentally flawed. The Committee’s rigid approach was inconsistent with a proper interpretation and application of s 174 of the Constitution. The appeal was dismissed with costs.
Merilyn Rowena Kader
Legal Editor at LexisNexis