Du Preez v Minister of Justice and Constitutional Development and Others

• Jurisdiction: South Africa
• Judge: A R Erasmus J
• Judgment Date: 13 April 2006
• Citation: 2006 (5) SA 592 (EqC)
• Docket Number: 368/2004
• Hearing Date: 08 December 2005
• Counsel: A Beyleveld for the applicant/complainant. R K Pillay (with M Booi) for the respondents.
• Court: Equality Court

A R Erasmus J:

Introduction and facts

[1] The Magistrates Commission ('the commission') is a statutory body established in terms of the Magistrates Act 90 of H 1993. [1] Its objects relate to the many and varied aspects which affect the position and functioning of judicial officers in the lower courts. [2] This includes the duty 'to ensure that the appointment of judicial officers takes place without favour or prejudice'. [3] The commission is, further, required to advise the minister (the first I respondent) regarding the appointment of judicial officers in the

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respective lower courts. [4] The minister shall, after consultation with the commission, appoint magistrates in respect A of such courts. [5] The commission may establish committees as it may deem necessary, [6] which would include the performance by the committee of functions in relation to the appointment of magistrates.

[2] During May 2002 and June 2003, the second respondent invited applications for vacant positions of regional court magistrates B in certain specified districts. These included Port Elizabeth (two posts). The minimum requirements, stated in the advertisement, were an LLB degree or a Diploma Legum and at least seven years' post-university experience in law. The complainant applied for the positions in Port Elizabeth. He was unsuccessful in even making the C shortlist. He thereupon instituted the present proceedings in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 ('the Equality Act' or 'the Act'). [7], [8] There are three other, similar, matters on the roll which, by agreement between the parties, stand over pending judgment in this matter. D

[3] At a previous hearing, the presiding officer, acting in terms of the regulations issued under the Act, [9] ordered that the adjudication of the matter be conducted in accordance with an agreement reached by the parties as set out in a written document. It reads: E

'1.

The sole issue for determination between the parties is whether the criteria for short listing for posts of regional magistrates, Port Elizabeth (annexure A3 to the complainant's founding papers) constitutes, pursuant to the provisions of s 13(2) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, fair discrimination. The parties are agreed that the second F criteria on annexure A3 (the one relating to experience and other legal occupation) should, for all practical purposes and for the purpose of this application, be ignored.

2.

Accordingly, the parties are in agreement that the above Honourable Court shall determine, after hearing legal argument, whether the complainant is entitled to an order in terms of paras 2, 3, 5 and 6 of complainant's notice of institution of proceedings pursuant to s 20 of Act 4 of 2000. G

3.

Accordingly, the parties have agreed that should the above Honourable Court find that the said criteria (A3) constitute unfair discrimination, an order should issue pur.suant to paras 2, 3, 5 and 6 of the complainant's notice.

Paragraphs 2, 3, 5 and 6 of the complainant's notice referred to in paras 2 and 3 of the agreement, above, read as follows: H

"2.

An order setting aside the criteria utilised in selecting suitable candidates to be shortlisted for the posts.

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3.

An order setting aside the criteria on the basis that it is irrational, discriminatory and inequitable. A

5.

An order directing the first and second respondents to re-advertise all the positions previously advertised during 2002 and 2003 and directing the first and second respondents to use criteria, which are constitutionally sound and which criteria do not constitute an absolute barrier to any prospective candidate as a result of race and/or gender. B

6.

Costs of the proceedings."'

[4] The granting of the relief was opposed by the first and second respondents. There was no appearance on behalf of the third and fourth respondents. No evidence was led by any of the parties, so that the complaint was adjudicated solely on the affidavits. There was no dispute of fact. C

[5] The criteria for the Port Elizabeth posts of regional court magistrate appear from the shortlisting form relating to the complainant (the annexure A3 referred to in the agreement): [10]

'Criteria for shortlisting for posts of regional magistrate, Port Elizabeth D Applicant: Mr I P du Preez

Criteria		Marks allocated
Experience as magistrate:
Magistrate + 2>years	= 1
Magistrate + 7>years	= 2	E
Magistrate + 10>years	= 3	3
Experience in other legal occupation:
7>years	= 1
12>years	= 2
17>years	= 3	— F
Qualifications:
LLB	= 1
LLM	= 2	1
Race:
Black	= 3	G
White	= 0	0
Gender:
Female	= 3
Male	= 0	0
Total marks allocated:		4' H

[6] In terms of the written agreement, the second criterion on the form, 'Experience in other legal occupation', can be ignored. I was informed by counsel that the candidates were scored only on one of the two categories of experience on the shortlist, not on both.

[7] The complainant has 19 years' experience as a magistrate and holds the degrees of B Juris, LLB and Master of Public I Administration. He avers that in the shortlisting of candidates, the commission unfairly

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discriminated against him on the basis of race and gender. He illustrates what he terms 'the irrational, unreasonable and A unconstitutional criteria used by the committee' by comparing his score sheet with that of one of the other two candidates who were, in the event, shortlisted for the Port Elizabeth posts.

Criteria		Marks allocated B
Experience as magistrate:
Magistrate + 2>years	= 1
Magistrate + 7>years	= 2
Magistrate + 10>years	= 3	1 C
Experience in other legal occupation:
7>years	= 1
12>years	= 2
17>years	= 3	— D
Qualifications:
LLB	= 1
LLM	= 2	1
Race:
Black	= 3	E
White	= 0	3
Gender:
Female	= 3
Male	= 0	3
Total marks allocated:		8 F

[8] The complainant points out that for the category 'experience as magistrate', the other candidate was allocated only one point (less than two years' experience), whereas he was allocated three points (more than ten years' experience). They were both allocated one point under 'qualifications'. In relation to 'race' and 'gender', he - as a 'white' 'male' - scored zero; G she - as a 'black' 'female' - scored three, in each of the categories. His total score was four, hers eight. He submits that on the basis of the score sheets, it was impossible for a white male to compete successfully against a black woman. He contends that, in the result, he was the victim of unfair discrimination. H

[9] The first respondent answered the complainant's allegations through an affidavit of an official employed in the Department of Justice and Constitutional Development in the capacity of director. She asserts that the department, at all times, strenuously adheres to the principles and values of the Equality Act. She directs the attention of the Court to the public duty vested in the I respondent to adhere to the principles of the Constitution, [11] in particular s 174(2) thereof which dictates that 'the need for the judiciary to reflect broadly the racial and gender composition J

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of South Africa must be considered when judicial officers are being appointed'. A

[10] The policy and procedure relating to the performance by the commission of its statutory duties and functions are set out in the affidavit of its secretary. The secretariat, he says, is furnished with particulars of vacancies in the magistrates' courts. Advertisements are placed in national newspapers and are disseminated to all B magistrates' offices. In each advertisement specific reference is made to the constitutional requirement of racial diversity of the judiciary. The secretariat, upon receipt of the applications, compiles profiles in respect of each applicant for the purposes of shortlisting and interviews. The profiles contain detail regarding each applicant's C personal particulars, current status/rank, applicable post-university legal experience, qualifications and general remarks. The profiles, as supplemented by the individual applicant's curriculum vitae, are used as guidelines for the shortlisting of candidates. Shortlisting is done by the appointments committee. [12] This committee determines the general criteria for shortlisting in respect of each D advertised post. They are: Experience, qualifications, the provisions of s 174(2) of the Constitution, and the specific needs of the office. Score sheets are used for shortlisting purposes. The committee has adopted a method whereby a specific weight is attached to each of the criteria on the score sheet. Candidates obtaining the highest score are shortlisted. In the case of positions for regional court magistrate the E shortlist needs to be ratified by the commission prior to the interviewing of candidates. Interviews are thereafter conducted by the full commission...