THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 388/2020

In the matter between:

THE MAGISTRATES COMMISSION                                FIRST APPELLANT

ZOLA MBALO N.O.                                                      SECOND APPELLANT
(Chairperson of the Appointments Committee
of the Magistrates Commission)

THE MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES                                         THIRD APPELLANT

CORNELIUS MOKGOBO N.O.                                 FOURTH APPELLANT
(Acting Chief Magistrate Bloemfontein
Cluster “A”)

and

RICHARD JOHN LAWRENCE
RESPONDENT

and

THE HELEN SUZMAN FOUNDATION                         AMICUS CURIAE

Neutral citation: The Magistrates Commission and Others v Richard John
Lawrence (Case no 388/2020) [2021] ZASCA 165 (2
December 2021)

Coram:
PONNAN,
SALDULKER,
VAN
DER
MERWE
and
MOLEMELA JJA and POTTERILL AJA
Heard:
01 September 2021
Delivered:     This judgment was handed down electronically by circulation to
the parties’ representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is deemed to be
10h00 on 2 December 2021.
Summary:     Constitutional law – review of a decision of the Appointments
Committee of the Magistrates Commission not to shortlist a candidate for
appointment as magistrate – rigid exclusion of candidate solely on account of
being a white male – recommendation of Appointments Committee reviewed and
set aside.

ORDER

On appeal from: Free State Division of the High Court, Bloemfontein (Daffue
ADJP and Molitsoane J, sitting as court of first instance):
The appeal is dismissed with costs, including the costs of two counsel.

JUDGMENT

Potterill AJA (Ponnan, Saldulker and Van der Merwe JJA concurring)

[1] At the heart of the appeal is the legality and constitutionality of the
shortlisting process of the Magistrates Commission and its decision to overlook
the respondent. The respondent, Mr Richard John Lawrence (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 these posts.
Aggrieved, he approached the Free State Division of the High Court,
Bloemfontein (high court) for relief. The Magistrates Commission (the
Commission), Mr Zola Mbalo NO, the Chairperson of the Appointments
Committee of the Magistrates Commission (the Chairperson), the Minister of
Justice and Correctional Services (the Minister) and Cornelius Mokgobo NO, the
Acting Chief Magistrate Bloemfontein Cluster “A”, were cited as the first to
fourth respondents respectively. The Helen Suzman Foundation was admitted to
the proceedings as an amicus curiae.

[2] The application succeeded before Daffue ADJP (Molitsoane J,
concurring), who issued the following order:

‘1. It is declared that the shortlisting proceedings chaired by second respondent for the
vacancies of magistrates for the Free State relating to the districts of Bloemfontein, Botshabelo
and Petrusburg were unlawful and unconstitutional.
2. The aforesaid shortlisting proceedings and consequently also the recommendations of the
Appointments Committee of first respondent and the appointment by third respondent of
magistrates for the districts of Bloemfontein, Botshabelo and Petrusburg are reviewed and set
aside.
3. First and third respondents shall pay applicant's costs of the application jointly and severally,
the one paying the other to be absolved.
4. The amicus curiae, the Helen Suzman Foundation, shall be responsible for its own costs.’
The appeal, with the leave of that court, is against the whole of the judgment and
order of the high court.

[3] Before turning to the substantive merits of the dispute, two ancillary issues
require consideration. First, it was contended on behalf of the respondent 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 of 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.

Was the Bloemfontein shortlisting committee quorate?
[4] The high court upheld the point that the Committee was not quorate in
respect of the Bloemfontein shortlisting process. The Committee comprised 10
members. In terms of s 5(2) of the Act the ‘majority of the members of the
Commission shall constitute a quorum for a meeting of the Commission’. During
the shortlisting only five members were present. The Chairperson, who had
commented that the Committee needed six members to be quorate, appeared to

be alive to the fact that the number present fell below the required number to
constitute a quorum. However, the Chairperson sought to rely on s 5(4), read with
s 6(7), of the Act as permitting the continuation of the meeting.

[5] Section 5(4) provides:
‘The person presiding at a meeting of the Commission may regulate the proceedings and
procedure thereat, including the quorum for a decision of the Commission, and shall cause
minutes to be kept of the proceedings.’
And, in terms of s 6(7) the ‘provisions of section 5 shall mutatis mutandis apply
to a meeting of a committee’.

[6] The argument advanced on behalf of the appellants was that on a plain
grammatical reading of s 5(4) of the Act, the Chairperson was empowered to
regulate the proceedings and procedure at a meeting, including to proceed with
the meeting despite the fact that the number present was less than that envisaged
in s 5(2). The problem with this argument is that it simply ignores the mandatory
provisions of s 5(2) as well as the word ‘decision’ in 5(4) of the Act. Such
interpretation renders the section nugatory. Before any validly binding decision
can be taken at a meeting, the meeting itself must be quorate in terms of s 5(2).
Thus, before the chairperson can regulate the proceedings and procedure at a
meeting in terms of s 5(4), the meeting must be properly constituted. In other
words, absent a proper quorum in terms of s 5(2), there was no valid meeting and
s 5(4) could therefore not be invoked. Section 5(4) in context deals with the
determination of a quorum for a decision at a quorate meeting. In other words, by
way of example, the Chairperson could direct that a decision would have to be
unanimous or require a two-thirds or a simple majority.

[7] Requiring a majority in terms of s 5(2) is consistent with the purpose of the
Act. The function of the Committee is to shortlist candidates for possible

appointment. Judicial officers in the district and regional courts play a vital role
in the administration of justice.1 The appointment of judicial officers is an
important exercise of public power to ensure the independence of the judicial
branch of government.2 The Committee meeting is vital to that purpose. A
quorum is consistent with the principle that a majority of members would better
serve the purpose for which the Committee was established.3

[8] As it was pointed out in Amos v Minister of Justice and Others [2019]
ZAWCHC 130 para 43:
‘The appointment of judicial officers is a delicate matter which the public has a right to expect
will be carried out carefully and with due and scrupulous regard for the legal prescripts
concerned. It is fundamentally embarrassing when those who are involved with the process get
it wrong, because of a basic failure to attend to the fundamentals, particularly when they, of all
persons, would surely be expected to know what the law requires of them. As a constitutional
state we cannot allow the process of the appointment of magistrates, who are the backbone of
our legal system, to be dealt with in a haphazard or lackadaisical fashion.’

[9] To sum up, as the meeting was not quorate, the decisions taken at that
meeting, including the shortlisting of candidates for Bloemfontein, cannot stand
and accordingly falls to be set aside.

Non-joinder of the shortlisted candidates
[10] The high court dismissed this point on the basis that all the shortlisted
candidates knew of the application and could have opposed same if they so
wished.

1 Association of Regional Magistrates of Southern Africa v President of the Republic of South Africa and Others
[2013] ZACC 13; 2013 (7) BCLR 762 (CC) para 63.
2 Helen Suzman Foundation v Judicial Service Commission [2018] ZACC 8; 2018 (4) SA 1 (CC) para 67.
3 De Vries and Others v Eden District Municipality and others [2009] ZAWCHC 94 para 38; Judicial Service
Commission and Another v Cape Bar Council and Another [2012] ZASCA 115; 2013 (1) SA 170 (SCA) para 20.

[11] At the hearing of the appeal counsel for the appellants conceded that all the
shortlisted candidates for the posts at Botshabelo and Petrusburg provided written
or telephonic confirmation that they would abide the decision of the court. The
point was accordingly abandoned in respect of those two districts.

[12] With regards to the Bloemfontein post: it was conceded that if the meeting
relating to the shortlisting of candidates for Bloemfontein was not quorate, as I
have found, then the issue of non-joinder would be rendered academic and need
not detain us.

Legal Framework
[13] Turning to the merits: A useful starting point is ss 174(1) and 174(2) of the
Constitution, which provides:
‘(1) Any appropriately qualified woman or man who is a fit and proper person may be
appointed as a judicial officer. Any person to be appointed to the Constitutional Court must
also be a South African citizen.
(2) The need for the judiciary to reflect broadly the racial and gender composition of South
Africa must be considered when judicial officers are appointed.’

[14] In addition, s 174(7) provides:
‘(7) Other judicial officers must be appointed in terms of an Act of Parliament which must
ensure that the appointment, promotion, transfer or dismissal of, or disciplinary steps against,
these judicial officers take place without favour or prejudice.’
The legislation envisaged in s 174(7) is the Act. Section 10 of the Act provides:
‘(10) The Minister shall, after consultation with the Commission, appoint magistrates in respect
of lower courts under and subject to the Magistrates' Courts 30 Act.’

[15] Regulations4 have been published under the Act for the appointment of
magistrates in 1994. Regulation 3 sets out the requirements for appointment as a

4 Regulations for Judicial Officers in Lower Courts, 1994 GN R361, GG 15524, 11 March 1994.

magistrate. It states that a person may not be appointed as a magistrate or
additional magistrate of a district court, or as a magistrate of a regional court,
unless that person is appropriately qualified; a fit and proper person; and a South
African citizen. Regulation 5 provides:
‘In the appointment or promotion of a magistrate, only the qualifications, level of education,
relative merits, efficiency and competency for the office of persons who qualify for the relevant
appointment or promotion shall be taken into account.’

[16] The Commission on 7 April 2011 approved the appointments procedure
(AP) of the Committee.

[17] The AP identifies various criteria for shortlisting purposes, namely:
‘Section 174(2) of the Constitution-
The racial and gender demographics at a specific office, within an administrative region /
regional division and on a national level on a specific rank are to be considered in order to
inform the application of section 174(2). Section 174(2) seeks to address imbalances created
in respect of previously disadvantaged groupings.
Relevant experience-
The minimum required relevant legal experience in respect of entry-level posts is 5 years and
the minimum required relevant legal experience in respect of regional court posts is 7 years.
Consideration should not only be given to the total number years of experience but also to the
nature, diversity, quality and relevance of such experience.
Qualifications-
Appropriately legally qualified persons should be considered.
. . .
Appropriate managerial experience or managerial skills-
Consideration is given to the fact that each judicial officer has to manage his/her own court
environment as well as the fact they have to manage the case flow in their own courts. In respect
of posts where a magistrate will have other magistrates that will report to him/her, albeit on the
same rank, consideration is given to practical managerial experience or managerial skills that
an applicant may possess.’

[18] The AP stipulated that the listed criteria are not to be ‘applied in any fixed
order or sequence of preference or prioritisation’.

Mr Lawrence’s candidature
[19] Mr Lawrence commenced acting as a magistrate in the Bloemfontein
Cluster ‘A’ group on 2 January 2015. He did so for four years and at the time of
the shortlisting process his acting appointments, each for three months at a time,
had been renewed for the 48th time. When the proceedings were instituted
Mr Lawrence had been acting as the Head of the Petrusburg office for two years.
But, he was also assisting in Bloemfontein and various other courts.

[20] The competence and experience of Mr Lawrence was not in dispute. His
acting appointments were renewed for a period of four years in accordance with
the Deputy Minister of Justice’s letters to the Chair of the Chief Magistrates’
Forum wherein it was stressed that acting appointments should not be extended
for a period of longer than two years and that when acting appointments were
extended for longer than two years it had to be strongly motivated and convincing.
The motivations from the acting senior magistrate, Mr Mokgoba, and the acting
chief magistrate, Mr Matshaya, for the 48 extensions were strong. In the progress
report of September 2018, Mr Matshaya recorded that the statistics revealed that
under Mr Lawrence, the Petrusburg court was elevated to the second best
performing court in the cluster and the fifteenth best performing court in the
country. He remarked: ‘This result was extremely pleasing since Mr Lawrence
had, during this period, also materially contributed to the statistics for
Jagersfontein court which came 1st in the cluster and 9th overall in the country’.
In the later statistics, the Petrusburg office was elevated to the eight best
performing court in the country. Petrusburg, still under the guidance of
Mr Lawrence, then went to the fifth best performing court in the country and by

November 2018 Petrusburg was ranked the best performing court in the Free
State and in the country.

[21] He managed the office well and held meetings with stakeholders in the
community to identify issues and took remedial action to improve the service
delivery of the office. His productivity in finalising matters was outstanding with
him clearing backed-up court rolls. His judgments were sound and well-reasoned.
He was praised for his contribution to peer support and the empowerment of
colleagues through the training he provided.

[22] Mr Lawrence met all of the requirements of regulation 3 in that he was
appropriately qualified, a fit and proper person and a South African citizen. He
had the level of education and competency for the posts he applied for (regulation
5). His application also complied with all of the advertised requirements for the
posts. Having met all of the prescribed requirements, Mr Lawrence’s application
fell to be considered alongside those of the other candidates, who likewise met
those requirements.

[23] The record reflects that although Mr Lawrence’s name was mentioned
three times during the shortlisting process, he was simply excluded from
consideration for any of the posts. I find it necessary to quote from the record for
the post advertised at Petrusburg to highlight the committee’s approach to
Mr Lawrence’s application:
‘MS NALIA:  This position was previously occupied initially by as I remember Mr Mchaiya
and then he was – came through to Bloemfontein and acting magistrate Mr Lawrence has been
there, but as I indicated earlier our cluster establishment, we are sitting with 11 white males at
presently.
CHAIRPERSON: No, we are not looking for white males in your cluster at all.
MS NALIA: All right
CHAIRPERSON: And even females, how are your white females?

MS NALIA: We have only got six, so we can – I looked at the demographics, we can may be
look at one or two white females, but other than that we have to place, for us we have to place
emphasis also on the coloured and the Indian females.
UNIDENTIFIED PERSON: In your head of court positions, what do you have, white males
mostly?
MS NALIA: No not really, not head of court positions.
. . .
MS NALIA: . . . It is a predominantly Afrikaans speaking community that we have there. I
looked at the community, it is a huge farming community in Petrusburg. Definitely as Ms van
Zyl said, there is a need for a female magistrate as a head of court there.
UNIDENTIFIED PERSON: Yes.
MS NALIA: Because I do not believe that there ever had a female magistrate in that as a head
in that court house.
UNIDENTIFIED PERSON: I think Mr Mchaiya was the first person of colour there.
MS NALIA: Yes, that is correct.
CHAIRPERSON: Not white. Just female, but not white.
MS NALIA: In that position?
CHAIRPERSON: Yes.

MS NALIA: Then we are looking definitely at – but then I was looking at – but as you said we
have got to be very careful about the interpreter. So I am going to take that into account.
UNIDENTIFIED PERSON: Take away the white
. . .
MS NALIA: . . . I looked at the Afrikaans community. It is – but when I say Afrikaans, it is the
Sothos and Tswanas that speak, they speak Afrikaans and the court setup etcetera, that is what
I looked at.
CHAIRPERSON: We are also looking for experience ma’am.
MS NALIA: We are also looking for experience. Acting experience and managerial
experience. So are we out of white positions?
. . .
CHAIRPERSON: Experience yes, because one person station and head office. So we cannot
take. . . (intervention).’

[24] ‘Take away the whites’ suggests the application of a rigid exclusionary
criterion base on race. The record reflects the same position taken and practice
applied by the Committee pertaining to the other two posts; a targeted exclusion
of white candidates. It is manifest from the transcript that the Committee was not
prepared to consider any of the other criteria in relation to Mr Lawrence. 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. There is always the question
of the weight to be allocated to the different factors in any given situation.
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 the other factors. In adopting a
blanket exclusion, as happened here, the Committee impermissibly fettered its
own discretion.

[25] The ‘circumstances of the post’ was that of Head of the Office of a
one-person station. As the answering affidavit made clear, the needs of such
office were that ‘the short-listed candidate will have to have experience in civil,
criminal and family law and the intricacies of the community that is served by the
office e.g. local beliefs and traditions’. The Committee recognised that the
candidate would need acting and managerial experience. They knew that due to
the predominance of the Afrikaans language spoken in Petrusburg, an interpreter
would be required if a non-Afrikaans speaking candidate was appointed. The
Committee disregarded the fact that Mr Lawrence had acted and managed the
Petrusburg office. Mr Lawrence had criminal, civil and family law experience.
The Committee did not balance the relevant experience, qualifications, needs of
that office and the appropriate managerial skills, instead it used race as a
guillotine to exclude from consideration candidates who were white.

[26] Reliance was sought to be placed on Solidarity and Others v the
Department of Correctional Services and Others5 (Solidarity). It was there stated:
‘The targets in the 2010 EE Plan should not be viewed in isolation as does the
second judgment. The correct approach is to look at the 2010 EE Plan holistically
including the provisions relating to deviations’. However, the appellants’ reliance
on Solidarity is misplaced.

[27] Solidarity is not support for the approach adopted by the Committee. In
Solidarity para 51, the matter of Barnard6 was relied on as follows: ‘In Barnard
this Court, although not defining a quota exhaustively, held that one of the
distinctions between a quota and a numerical target is that a quota is rigid whereas
a numerical target is flexible. Therefore, for the applicants to show that the
numerical targets constituted quotas, they need to first show that they were rigid’.
In both Barnard and Solidarity the Constitutional Court eschewed rigidity.
Barnard (at para 30) pointed out that: ‘our quest to achieve equality must occur
within the discipline of our Constitution’. In Solidarity (para 78), the
Constitutional Court emphasised that: ‘It is of fundamental importance that the
basis used in setting numerical goals or targets be the one authorised by the
statute. A wrong basis will lead to wrong targets.’

[28] As the written reasons for the decision made clear, Mr Lawrence was not
shortlisted on the basis that he did not ‘meet the section 174(2) of the
Constitution-criteria in any of those offices’. The Commission therefore firmly
located the reason for his exclusion in his race and gender. What is clear from the
record is that the Commission was fixated on excluding candidates from a

5 Solidarity and Others v Department of Correctional Services and Others [2016] ZACC 18; 2016 (5) SA 594
(CC) para 57.
6 South African Police Service v Solidarity obo Barnard [2014] ZACC 23; 2014 (6) SA 123 (CC).

particular group and no flexibility or deviation from that targeted group would
under any circumstances even have been considered.

[29] It is not denied that the Committee had adopted exactly the same approach
pertaining to the Botshabelo and Bloemfontein posts. Mr Lawrence was never
mentioned when the Bloemfontein post was considered. For the Botshabelo post
his name was mentioned, but immediately rejected because he was a white male.
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.

[30] The amicus curiae supported the submissions on behalf of Mr Lawrence
and in addition referred us to three Equality Court matters. In the first, Singh v
Minister of Justice and Constitutional Development and Others 2013 (3) SA 66
(EqC), the Commission was ordered to clearly reflect the provisions of s 174(2),
read with s 9, of the Constitution in the criteria used for shortlisting, as well as,
whether candidates had a disability or not. The court found in para 27 that: ‘[t]he
specific mention of race and gender in section 174(2) of the Constitution should
not be misunderstood to be excluding the other important factors mentioned in
section 9(3) of the Constitution which should be considered when short listing
magistrates’.

[31] In the second, Du Preez v Minister of Justice and Constitutional
Development and Others 2006 (5) SA 592 (EqC) para 41, Erasmus J found that
the formula applied by the Committee: ‘effectively gave automatic and absolute
preference to black female applicants who met the minimum job requirements,
irrespective of how they compared to the complainant, or for that matter to black
male and white female applicants. No regard was had to how the formula affected
such other applicants, nor did it have effective regard to the specific needs of the

posts, beyond the minimum qualifications for the positions. The inflexible modus
operandi of the committee comes foursquare within the situation of absolute
inclusion of designated group members to the absolute exclusion of non-
designated group members. . .’. The Court found that this absolute exclusion
applied by the Committee did amount to unfair discrimination in terms of the
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
(Equality Act).

[32] In the third, Kroukamp and Another v The Minister of Justice and
Constitutional Development and Others [2021] ZAGPPHC 526 para 48, the
Court found: ‘The position of the Minister in this case, seems to be that no matter
how hard the Magistrates Commission tried to explain the suitability of the first
complainant to be appointed as Senior Magistrate at Alberton, he was not
prepared to appoint a white male to that post. His position seems to be that a white
male cannot be recommended for an appointment, given the constitutional
injunctions. Nothing in section 174(2) of the Constitution prohibits the
recommendation, or appointment, of a white male’.

[33] In each of the three matters the court rejected the rigid approach adopted
by the Committee when applying the criteria for appointment as a magistrate, as
unfair discrimination. Although those matters fell to be judged in terms of the
Equality Act, the elevation of s 174(2) criteria to an upfront disqualifying measure
was rejected.

[34] 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 starting point of the exercise was therefore fundamentally
flawed. 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. Any white candidate, no
matter how good, was mechanistically excluded. The result was that
Mr Lawrence’s application was not considered at all. The approach of the
Committee was not consistent with the proper interpretation and application of s
174 of the Constitution, regulation 5 or the AP. 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. It is
important to emphasise that we are concerned here with the shortlisting process.
It is quite untenable that at this early phase of the recruitment process, candidates
should be excluded for no other reason but their race.

[35] Consequently, the following order is made:
The appeal is dismissed with costs, including the costs of two counsel.

S POTTERILL
ACTING JUDGE OF APPEAL

Molemela JA

[36] I have read the judgment of my sister, Potterill AJA (the first judgment)
and agree with the reasoning and conclusion in relation to the non-joinder issue.
As regards the shortlisting process followed by the Appointment Committee (the
Committee), my view is that based on the record of the Committee’s deliberations
pertaining to the Botshabelo post, it cannot be rightly concluded that the

shortlisting process adopted by the Committee in relation to that post was rigid,
inflexible and quota-driven. As regards the Petrusburg post, I agree that the
Committee’s decision be set aside. I, however, also highlight the fact that the
Committee irrationally failed to consider shortlisting female candidates, thereby
failing to advance gender transformation in the judiciary in relation to that post.
Regarding the Bloemfontein post, my view is simply that because the Committee
was not quorate when the shortlisting process was undertaken, on that ground
alone, the Committee’s decision was a nullity and ought to be set aside.

[37] The first judgment correctly points out that a useful starting point in
relation to the merits of this matter is ss 174(1) and 174(2) of the Constitution.7
From my point of view, s 174(2) must be read with s 174(1), as these provisions
are two sides of the same coin.8 However, there is no need to canvass the
provisions of s 174(1) in this judgment, as no issue was taken regarding the
competence of the candidates who were shortlisted and subsequently appointed,
nor their fitness to hold office. The Constitutional Court’s rich jurisprudence on
transformation, as laid down in a plethora of judgments, is of relevance to the
issues raised in this matter. Notably, courts in many jurisdictions have often
quoted dicta expressed in a different context in other judgments, to the extent that
such dicta are considered to be equally appropriate in the matter under
consideration.9 Some of the passages alluded to in this part of the judgment must
be seen in that context.

7 The text of s 174 of the Constitution is set out in para 13 of the judgment.
8 Justice Lex Mpati is reported to have stated this at his inaugural lecture at the University of the Free State, and
to have elaborated on that statement as follows:
To achieve the objectives of the Constitution we [the judiciary] need to strike a balance — gender and race
representivity on the one hand, and competence, integrity and skill on the other.’
9 Compare Premier of the Western Cape Provincial Government NO v Lakay [2011] ZASCA 224; 2012 (2) SA 1
para 17; Helen Suzman Foundation v Judicial Service Commission [2018] ZACC 8; 2018 (4) SA 1 (CC) para 68.

[38] As stated in a plethora of judgments, ‘in law, context is everything’. It is
clear from the text of s 174(2) that a full appreciation of substantive equality is
required. Substantive equality is not only a core and foundational value embodied
in the preamble10 of the Constitution of South Africa, it is also an enforceable
right enshrined in the bill of rights.11 Whereas s 9(1) of the Constitution
guarantees formal equality, s 9(2) requires the state and other role players to take
legislative and other measures to protect or advance persons that have been
disadvantaged by unfair discrimination.

[39] Interpreting and understanding equality in a substantive manner inevitably
requires us to acknowledge the need to redress the previously entrenched
inequalities of the past.12 Acknowledging the uniqueness of the South African
Constitution, Chief Justice Margaret H Marshall13 said: ‘the South African
Constitution is newer than the American Constitution. It is a product of
negotiations between internal divisions rather than a statement of liberation from
an external enemy. . . [a]nd in many ways your Constitution is more detailed,
more specific about its aims and the processes required to achieve them’.

[40] The following remarks made by Moseneke DCJ in Minister of Finance v
van Heerden (van Heerden)14 are apposite:
‘The jurisprudence of this Court makes plain that the proper reach of the equality right must be
determined by reference to our history and the underlying values of the Constitution. As we
have seen a major constitutional object is the creation of a non-racial and non-sexist egalitarian
society underpinned by human dignity, the rule of law, a democratic ethos and human rights.

10 The preamble recognises ‘the injustices of our past’ and aims to, inter alia, ‘heal the divisions of the past’.
11 Minister of Finance v van Heerden 2004 (6) SA 121 (CC), 2004 (11) BCLR 1125 (CC) para 22 (van Heerden).
12 In his book ‘Justice, a Personal Account’ at 238, Justice Edwin Cameron posits that s 9(2) of the Constitution
‘was necessary because . . . it was designed to bring healing and repair to a very un-virgin landscape – one ravaged
by a past that for centuries had deliberately and exclusively privileged whites’.
13 Chief Justice, Supreme Judicial Court, Commonwealth of Massachusetts, as quoted in a paper delivered at a
symposium marking former Chief Justice Chaskalson’s retirement in South Africa in 2006, published in ‘A
Delicate Balance’, edited by Jonathan Klaaren at 26.
14 van Heerden para 26.

From there emerges a conception of equality that goes beyond mere formal equality and mere
non-discrimination which requires identical treatment, whatever the starting point or impact. .
. .’

[41] Having emphasised that our Constitution says more about equality than do
comparable constitutions in that it inter alia imposes a positive duty on all organs
of state to protect and promote the achievement of equality, Moseneke DCJ
rightly cautioned as follows at para 29 of that judgment:
‘. . . The American jurisprudence has, generally speaking, rendered a particularly limited and
formal account of the reach of the equal protection right. The US anti-discrimination approach
regards affirmative action measures as a suspect category which must pass strict judicial
scrutiny . . . Our equality jurisprudence differs substantively from the US approach to equality.
Our respective histories, social context and constitutional design differ markedly. . . .’

[42] In the same judgment, Moseneke DCJ went on to aptly describe the concept
of substantive equality as follows:
‘ . . . [W]hat is clear is that our Constitution and in particular section 9 thereof, read as a whole,
embraces for good reason a substantive conception of equality inclusive of measures to redress
existing inequality. Absent a positive commitment progressively to eradicate socially
constructed barriers to equality and to root out systematic or institutionalised under-privilege,
the constitutional promise of equality before the law and its equal protection and benefit must,
in the context of our country, ring hollow.’15

[43] Similarly, in Minister of Constitutional Development and Another v South
African Restructuring and Insolvency Practitioners Association and Others,16 the
Constitutional Court stated that:
‘Restitutionary measures are a vital component of our transformative constitutional order. The
drafters of our Constitution were alive to the fact that the abolition of discriminatory laws and

15 Minister of Finance v van Heerden para 31.
16 Minister of Constitutional Development and Another v South African Restructuring and Insolvency
Practitioners Association and Others [2018] ZACC 20; 2018 (5) SA 349 (CC); 2018 (9) BCLR 1099 (CC) para
1.

the guarantee of equal rights alone would not lead to an egalitarian society envisaged in the
Constitution. Something more had to be done in order to dismantle the injustices and
inequalities arising from the apartheid legal order. Hence the Bill of Rights, which is a
cornerstone of our democratic order, includes remedial measures.’

[44] I agree with the sentiments expressed in the passages quoted from the two
seminal judgments quoted above and consider them equally apposite in relation
to the constitutional injunction embodied in s 174(2) of the Constitution. As I see
it, s 174(2), envisioning as it does a judiciary that reflects the race and gender
demographics, is aimed at achieving substantive equality, for the measures taken
in terms of ss 174(2) are equally integral to the reach of our equality protection
and transformation of the judiciary. This inevitably entails redressing the
injustices of the past.17

[45] In his oral submissions, counsel for the amicus inter alia referred this Court
to the judgment of the Equality Court in Singh v Minister of Justice and
Constitutional Development and Others (Singh)18 on the basis that it is apposite
to the interpretation of s 174(2) of the Constitution. In that matter, the Equality
Court correctly acknowledged the need to consider substantive equality when
making judicial appointments as follows:
‘The injunction to consider race and gender, in terms of section 174(2) of the Constitution,
when making judicial appointments is clearly fair and constitutional having regard to the
history of South Africa. . . .’
I agree.

17 In her article titled ‘Women as a Sign of the New? Appointments to South Africa’s Constitutional Court since
1994’, published online by Cambridge University Press, Rachel E. Johnson posits that given the composition of
the judiciary prior to the advent of democracy (it is common cause that it was dominated by white males) the
stipulation in s 174(2) that the judiciary should reflect broadly the racial and gender composition was intended
push for a more diverse judiciary was shaped by a number of overlapping and contesting agendas, which included
the need for a renewal of judicial legitimacy and authority. The provisions of s 174(2) was thus aimed at ensuring
that the courts could be considered to be inclusive.
18 Singh v Minister of Justice and Constitutional Development and Others 2013 (3) SA 66 (EqC); (2013) 34 ILJ
2807 (EqC) para 25.

[46] I am of the view that once reliance has been placed on the provisions of s
174(2) of the Constitution (as has happened in this matter), a brief historical
background that informed the inclusion of that provision becomes necessary for
purposes of context. Former Chief Justice Langa lamented about the unfortunate
history of South Africa as follows:
‘Justice in the past had a white unwelcoming face with black victims at the receiving end of
unjust laws administered by courts alien and generally hostile to them. The language of the
courts was not that of the majority. Nor was the culture and social practices of the judicial
officers that of the racial majority.’19

[47] The following statistics of the demographic composition of the judiciary as
at 27 April 1994, the dawn of democracy, attest to the veracity of the former Chief
Justice’s remarks:20

High Court and Supreme Court of Appeal
Black females:
Black males:
White females:
White males:

Magistracy
The available statistics in respect of the Magistracy were recorded in 1998 and
were, as at that date as follows:21

19 ‘Judging in a democracy: the challenge of change’, quoted from a speech delivered by Langa DCJ in
Johannesburg on 20 March 2004 (prior to his appointment as the second Chief Justice of South Africa), as quoted
by S Mothupi Codicillus Volume 47 No 2 2006 ISSN 0010-020X © Unisa Press at 1-14.
20 These statistics are included for purposes of giving context to the court’s allusion to ‘the history of South Africa’
as quoted in paragraph 25 of Singh. It must be noted, however, that the appellants asserted that as at the time of
the impugned shortlisting process, ‘[w]hite males [were] by far the most “over-represented” group (25 years after
the dawn of [South Africa’s] democracy)’.
21 Despite a diligent search, the statistics in relation to the demographic composition in the Magistracy as at 27
April 1994 could not be found.

Black females:
Black males:
White females:
White males:

The historic imbalance that needed to be redressed since the advent of democracy
is self-evident.

[48] It is against the background of these statistics and the provisions of s 174(2)
that the allusion to the race of the candidates has to be understood whenever issues
pertaining to transformation of the judiciary need to be decided. The appellants
asserted that it was in the context of paying consideration to the afore-mentioned
imbalance that the Committee took into account that the race profile was such
that the proportion of white male magistrates constituted 26.5 percent of the total
complement of the ‘Free State Cluster A lower court judiciary’ and was thus
disproportionate to the population demographics in that area. The deponent to the
appellants’ affidavit averred that ‘[w]hite males [were] by far the most “over-
represented” group (25 years after the dawn of [South Africa’s] democracy)’. The
appellants contended that Mr Lawrence’s candidature was duly considered, but
he was not shortlisted due to the over-representation of white males in that cluster.
According to the appellants, the Committee was entitled to prioritise gender or
race transformation when same was shown to be the most pressing need. It was
thus submitted that the Committee's actions were justifiable, rational and fair
having regard to the provisions of the AP.

[49] Purporting to rely on the judgment of the Constitutional Court in South
African Police v Solidarity obo Barnard (Barnard),22 the appellants asserted that

22 South African Police Service v Solidarity obo Barnard [2014] ZACC 23; 2014 (6) SA 123 (CC).

the Committee’s approach was flexible and did not amount to a quota system,
considering that the Committee had shortlisted white males in other districts. It
could not be argued that by invoking the requirements of s 174(2) the Committee
acted arbitrarily or displayed naked preference, so it was contended. The
appellants stressed that the conduct of the Committee should be viewed
holistically, having regard to the fact that in Cluster A there was a pressing need
for transformation. They contended that the court a quo had not taken this aspect
into account.

[50] The deponent to the appellants’ supplementary affidavit asserted that
during the shortlisting meeting, the information relating to (i) the ‘target’ group
and (ii) candidates who had acted as magistrates ‘irrespective of their race and
gender’, was displayed on a screen. It bears mentioning that the appellants’
version that the candidates’ information as gleaned from their resumes was
condensed and embodied in a database that was displayed on a screen, is borne
out by the transcribed record of the meeting of the Committee. Furthermore, the
appellants’ version that Mr Lawrence’s name was included in that database on
the basis of having acted as a magistrate, is also borne out by the same record.

[51] The following stipulations of the AP, which were embodied in the
advertisement for the respective posts, bear repeating:
‘Section 174(2) of the Constitution-
The racial and gender demographics at a specific office, within an administrative region /
regional division and on a national level on a specific rank are to be considered in order to
inform the application of section 174(2). Section 174(2) seeks to address imbalances created
in respect of previously disadvantaged groupings.’
Significantly, none of the parties have attacked the shortlisting and appointment
policies set out in the AP.

[52] I am of the view that, given the history of our country, the stipulations of
s 174(2) of the Constitution and the provisions of the AP, the mere allusion to the
demographic composition of a specific office and the race of the respective
applicants should not be considered to be a taboo topic. Having said that, I must
hasten to caution that it bears being mindful that ‘the long-term goal of our society
is a non-racial, non-sexist society in which each person will be recognised and
treated as a human being of equal worth and dignity’.23 In du Preez v Minister of
Justice and Constitutional Development and Others,24 the court found that there
is patent disproportionality in a selection policy based on race and gender to the
absolute exclusion of all the other qualities required for a position of a regional
magistrate. This dictum was approved by the Constitutional Court in Barnard. It
is therefore crucial to bear in mind that even though the Constitution requires
those selecting judges and magistrates to consider the need for the judiciary to
reflect broadly the racial and gender composition of South Africa, it does not
prescribe a rigid approach. The discretion of the Committee members would be
fettered and the objective of broad racial and gender transformation thwarted if a
mechanical approach were to be followed when considering candidates’
suitability for appointment to the bench. It is thus abundantly clear from all the
authorities alluded to, above, that candidates cannot be excluded from
consideration solely on account of their race. I turn now to consider the issues
raised in this appeal.

[53] The respondent made much about of the fact that the AP expressly provides
that the listed criteria are not to be ‘applied in any fixed order or sequence of
preference or prioritisation’. From my point of view, this specific stipulation does
not, in any way, detract from the provisions of s 174(2) of the Constitution. It is

23Minister of Finance v van Heerden para 44.
24 Du Preez v Minister of Justice and Constitutional Development and Others 2006 (5) SA 592 (E) para 30.

for that reason that I agree with the first judgment’s finding25 that, depending on
the circumstances, certain factors may assume greater significance than others
when the suitability of candidates is considered. This is a clear recognition that
the Committee had a discretion to decide which candidate to shortlist for the
respective posts among those who met the requirements set out in the
advertisement of the vacancies.

[54] Under the heading ‘[c]riteria for short-listing purposes’ and the sub-
heading ‘[n]eeds of the specific office’, the AP provides that ‘[c]consideration is
inter alia given to the type of post to be filled, e.g. Head of Court or an additional
magistrate, whether the office is located in a rural or urban area, what types of
matters are predominantly adjudicated upon in that office, whether the post to be
filled needs specific skills such as vast civil experience, the needs of the
community, etc’. The exercise of the Committee’s discretion therefore inevitably
entails considering the needs of the respective offices in respect of which
vacancies have been advertised, among other things. This means that, as a matter
of logic, it is quite conceivable that a candidate who was not deemed suitable for
a post in a particular area could be considered suitable for a similar post in another
area. Bringing it to the facts of this case, the fact that Mr Lawrence might not be
considered a suitable candidate for a specific post would not ineluctably lead to
the result that he could not be shortlisted for any other post.

[55] The appellants submitted that the fact that forty-five white candidates
(of whom 16 were white males) were shortlisted by the same Committee,
nationally, serves to show that race was not used as a blanket exclusion of white
applicants. Indeed, the national statistics pertaining to the judicial officers
appointed over the years in the magistracy and the superior courts serve to dispel

25 Para 24 of the judgment.

the idea of a blanket exclusion on account of race, as white candidates have
continued to not only be shortlisted but also appointed in various courts since the
advent of democracy. That, however, does not necessarily mean that the
shortlisting processes should not be scrutinised in appropriate circumstances.

[56] In relation to the impugned shortlisting processes, the appellants averred
that before the shortlisting meetings were held, cluster heads were required to
submit information pertaining to the race and composition of the cluster, as well
as that of each office in relation to which a post had been advertised. Thereafter,
the Committee would, during the shortlisting process, ‘look closely’ at the race
and gender composition of both the cluster and the office. According to the
appellants, ‘[a]ll the needs identified [would] determine a target group to shortlist
from’. What can be gleaned from the transcript is that the Committee dealt with
the different districts in Cluster A of the Free State on a post-by-post basis. In
other words, they deliberated about the needs of a particular post and the
candidates who had applied for that specific post, then decided on which
candidates to shortlist for that particular post. Only thereafter would the
Committee members move on to deliberate on the next post. That being the case,
I am of the view that the utterances made by some of the Committee members in
relation to one post should not, without more, be regarded as a backdrop against
which the entire shortlisting process must be assessed.

[57] In Helen Suzman Foundation v Judicial Services Commission,26 the
majority judgment observed that ‘… deliberations are relevant to the decision
they precede and to which they relate’. In this matter, the shortlisting process for
Botshabelo preceded the one for the Petrusburg post. I am therefore of the view
that it is not appropriate to consider the deliberations made in respect of the

26 Helen Suzman Foundation v Judicial Service Commission [2018] ZACC 8; 2018 (4) SA 1 (CC) para 23.

Petrusburg post as a yardstick to assess the Committee’s deliberations in relation
to the Botshabelo post. This is all the more so because the record shows that prior
to deliberating on the Botshabelo post, the Committee had deliberated on another
post within cluster A, namely Ficksburg (Mr Lawrence did not apply for this
post). What is clear from the record is that a variety of factors were taken into
account and some were considered more significant than others. It is for this
reason that I hold the view that any shortcomings that may have been identified
in respect of the Petrusburg post should not serve to tarnish the deliberations in
respect of the Botshabelo post.

Botshabelo post
[58] As stated before, the deponent to the appellants’ answering affidavit
maintained that the information pertaining to all the candidates who had acted as
magistrates was displayed on a screen during the shortlisting process, regardless
of the candidates’ race and gender. She averred that Mr Lawrence’s information
was included in that database and that his candidature was duly considered by the
Committee. The record pertaining to the Committee’s deliberations in respect of
the Botshabelo reveals that during the discussion about Mr Lawrence’s
candidature, the Committee members seemed to be talking at the same time, as a
result of which the transcription note states: ‘indistinct, everybody is talking
simultaneously’. Nothing is known of what was said when the members were
talking simultaneously. It goes without saying that one cannot speculate about
what was or was not said, which was not captured by the recording. That being
the case, it seems somewhat unfair to conclude that Mr Lawrence’s name was
merely mentioned but his candidature was not considered ‘at all’.

[59] The remaining part of the record of the Committee’s meeting in respect of
the Botshabelo post reveals that various factors were taken into account when the
Committee members were deliberating about this post, including the need for

candidates to have acting and/or managerial experience. It was not disputed that
all the candidates whose names were included in the database met the minimum
requirement of an appropriate legal qualification and at least seven years’ post
qualification experience. In relation to acting experience, the following exchange
is apposite:
‘Ms Nulliah: When looking against our cluster establishments as a whole as well as the office
establishment in conjunction with the needs of the community, Botshabelo is the third largest
township in South Africa. It is predominantly Sotho speaking and Tswana speaking. The head
of office position according to me would require acting experience and preferably acted as a
head of office elsewhere and management experience because as head of office you are dealing
with complaints. It must be somebody who can interact with the people and the people also can
see that there is [representivity]. Again, it is a predominantly African township, Sotho and
Tswana speaking and yes, we must have a need for an interpreter in that sense, for someone to
translate, so we cannot we want somebody of colour, preferably a black male in that one and
against our cluster establishment. . .(intervention).’
Bearing in mind the provisions of s 174(2) and that the same provisions are
expressly incorporated in the AP as part of the shortlisting requirements, I am of
the view that the factors raised in the passage quoted above are valid
considerations.

[60] I find it significant that one of the Committee members sounded the
following warning:
‘Ms September: . . . We would not want a situation where we are going to have all males or all
blacks and so on. . . .
Chairperson: Thank you . . . Ms September, we should also be careful and because now we
would end up having to look for a Sotho speaking person in a Sotho area and Xhosa and Zulu
and all the others.’
This exchange, in my view, dispels any notion of rigidity in the selection process.

[61] The record also reveals that it was the Chairperson of the Committee who
was the first to mention the name of a white female candidate as a person that

could be considered for that post. It seems to me that she only backtracked after
the racial composition of that court had been laid bare. This, in my view, does not
support the contention that the Committee was dead set on a blanket exclusion of
white candidates in relation to the Botshabelo post.

[62] It bears noting that under the heading ‘[n]otes to short-listing procedure
and criteria’, the AP provides as follows: ‘[w]hereas in a situation where gender
or race transformation present itself as the most pressing need such a
consideration will be given priority accordingly, to the extent that it may be
preferred to re-advertise the position if no suitable transformation candidate
among any of the formerly disadvantaged groups can be found to fill it. The
decision to re-advertise will not be taken lightly and the impact on service
delivery at the relevant court will be balanced with the needs pf the specific
community.’ According to the appellants, preference was given to African males
because, as at the time of the shortlisting, the complement of that court comprised
two white magistrates, one white male and one white female. The Committee
considered that since Botshabelo’s population was predominantly African, the
ultimate appointment of another white magistrate would thus perpetuate the
disproportionate composition of the bench vis-à-vis the area’s demographics. In
considering the appellants’ reasoning on this aspect, the following extra-curial
remarks of Former Chief Justice Ngcobo, as quoted in paragraph 28 of Singh are,
in my view, apposite:
‘(Section 174(2)) echoes the preamble of the Constitution which declares that “[w]e the people
of South Africa believe that South Africa belongs to all who live in it, united in our diversity”.
The importance of diversity to public confidence in the judiciary cannot be gainsaid. It
underscores the principle that consideration of a broad range of views is the surest path to sound
governance and a foundation of democracy. Diversity on the bench promotes confidence in
judges in many ways. When a litigant comes before court and sees from time to time people
reflective of his or her own background and experience, it engenders confidence that he or she

can get a fair trial. It also promotes confidence because it facilitates the taking into account of
different perspectives. In short, “diversity allows justice to see”.’

[63] Reverting to the facts of this case, it cannot be said that Mr Lawrence’s
managerial or acting experience was not taken into account. The record shows
that after his name was mentioned, it was pointed out that he had acted as a
magistrate. The discussion then moved to the needs of that office as well as the
Cluster. It was also mentioned that the two magistrates who were already serving
at that court were experienced. The Committee also noted that there were a
number of black candidates having adequate acting and/or managerial
experience.

[64] The record of the Committee’s meeting reveals that, in line with the AP,
the Committee had paid due regard to the needs of the office, the practical
managerial experience of the candidates, the racial and gender composition of
that office and the population demographics of the area in which the court is
situated. Viewed in the context of the appellants’ explanation pertaining to a
pressing need for remedying the skewed demographic representation in the
Botshabelo office and in that administrative region, I am not persuaded that there
was a ‘rigid exclusion’ based solely on account of Mr Lawrence being a white
person.

[65] Considering the demographic composition of that office, the population
demographics of that area, the experience of the candidates, including the fact
that a fair number of the candidates had sufficient acting and/or managerial
experience were available to address the demographic needs of that office, I am
unable to agree with the first judgment’s conclusion that the Committee did not
balance the relevant experience, qualifications, needs of that office and the
appropriate managerial skills, and that it instead ‘used race as a guillotine’ to

exclude white candidates from consideration. Similarly, I do not agree that the
Committee’s decision not to shortlist Mr Lawrence for the Botshabelo post was
unjustified, unfair or irrational.

Petrusburg post
[66] I turn now to the shortlisting process followed in respect of the Petrusburg
post. As a point of departure, I emphasise that an exclusion based solely on one’s
race or gender suggests an inflexible approach which is an affront to the
provisions of s 174(2) of the Constitution and the AP.

[67] As mentioned before, the appellants denied that race was used as an
absolute bar to exclude white candidates and maintained that the Committee’s
decision to shortlist candidates was taken after considering the needs of the office
in respect of which a post was advertised. The question is whether the Committee
has demonstrated this. The exchange between members of the Committee is
correctly captured in the passage quoted in paragraph 23 of the judgment and
speaks for itself. In my view, the Committee has not shown any justification for
excluding Mr Lawrence from the shortlist in respect of the Petrusburg post.
Having considered the input of the cluster head insofar as the needs of that office
were concerned, I have no hesitation in agreeing that Mr Lawrence’s exclusion
from the shortlist was irrational. Having said this, it would be remiss of me not to
mention an aspect that is equally self-evident from the transcript, and it is this:
that gender representivity was not sufficiently taken into account by the
Committee despite it being an issue that was raised by the cluster head during the
deliberations. The following exchange is of significance:
‘MS NALIA: We have only got six, so we can – I looked at the demographics, we can may be
look at one or two white females, but other than that we have to place, for us we have to place
emphasis also on the coloured and the Indian females.
. . .

MS NALIA: . . . It is a predominantly Afrikaans speaking community that we have there. I
looked at the community, it is a huge farming community in Petrusburg. Definitely as Ms van
Zyl said, there is a need for a female magistrate as a head of court there.
UNIDENTIFIED PERSON: Yes.
MS NALIA: Because I do not believe that there ever [was] a female magistrate as a head in
that court house.
UNIDENTIFIED PERSON: I think Mr Mchaiya was the first person of colour there
. . .
Unidentified person: There is [L] from the Eastern Cape.
Chairperson: Eight years experience head of office.
Unidentified person: No, we go … (indistinct), there is nothing.
. . .
Unidentified person: Is there any exception, we can assent to Chair with regards to [M]. . .
[T]he problem is that we have short listed her twice already, so we need an exception.
Chairperson: And if we say we take her then we are going to need persons to compare her
with and there are no other females. So let us just look at males, African, coloured,
Indian.’(My emphasis)
The exchange above alludes to two black female applicants and ends with what
seems to be an odd suggestion that a female candidate could not be shortlisted
alongside male candidates.

[68] I have had the benefit of reading the judgment prepared by my colleague,
Ponnan JA (the third judgment). At paragraph 83, the third judgment finds that
Mr Lawrence did not seek to advance a case based on gender discrimination and
suggests that his allusion to gender ‘was in support of his foundational hypothesis
that the resolve to exclude all white candidates was so firm and inflexible, that
even white females did not make the cut’. An undeniable fact is that a black
female was also overlooked, and wrongly so. Mr Lawrence’s averments speak
for themselves. In his supplementary founding affidavit, he said:
‘From the outset (and throughout the proceedings) it is clear as a pikestaff that the Respondent
adopted a stance best described as inflexible and rigid in order to effect an absolute exclusion
of white male candidates (and to a slightly lesser degree white female candidates) from any

consideration. This absolute exclusion of the Applicant (and other white candidates) who is a
member of the excluded designated group affected thereby (white and male) from being
shortlisted for any vacancies in Free State cluster “A” (and for that matter it occurred in Free
State cluster “B” too) was unconstitutional, unlawful, unfairly discriminatory and amounted to
absolute exclusion from consideration from vacancies, within the Free State clusters, of
members of the designated group solely on the basis of race (and to a degree gender).’
In his replying affidavit Mr Lawrence acknowledged the exclusion of a black
female candidate as follows:
‘It is noted that despite the “alleged” resolution … to give preference to females of the generic
black group and despite there being suitably qualified and experienced female candidates from
such “target” group, the candidate is not shortlisted for Petrusburg on the basis of the
Chairpersons corrupted reasoning…’
It is clear from these averments that Mr Lawrence canvassed gender
discrimination and, in the replying affidavit, specifically alluded to the exclusion
of a black female from consideration. Notably, this is an aspect which the court a
quo considered worthy of mention when it remarked: ‘this is discrimination in a
pure form, but needs no further attention. Fact of the matter is that no white
candidates were considered’.

[69] With respect, it is difficult to understand how the consideration of a
factually correct statement that a black female candidate was also overlooked
during the shortlisting process can be irrelevant in relation to an application for
the setting aside of the shortlisting process (and consequent appointments) based
on the contention that the failure to appoint a candidate was solely because he
was ‘white and male’. Nothing precludes a court from considering what is self-
evident from a transcript that was admitted into evidence. This is all the more so
when litigants placed reliance on various passages embodied in a transcript that
constituted part of the evidence. As it was aptly stated by the majority judgment
in Helen Suzman Foundation v Judicial Services Commission27, ‘the content of. .

27 Helen Suzman Foundation v Judicial Service Commission [2018] ZACC 8; 2018 (4) SA 1 (CC) para 19.

. deliberations can often be the clearest indication of what the decision-maker
took into account and what it left out of account. . .’. Bearing in mind that the
appellant’s case was that the presence of a cluster head was to advise on the needs
of the post, among other things, it seems irrational that the cluster head’s
motivation for the post to be filled by a female incumbent was given short shrift,
insofar as all female candidates were excluded from consideration. As I see it,
regardless of how Mr Lawrence’s pleaded case is perceived as gleaned from his
affidavits, once it is taken into account (as it should) that even an eligible black
female candidate whose name was mentioned was also not shortlisted, the
suggestion that ‘the resolve to exclude all white candidates was so firm and
inflexible, that even white females did not make the cut’ cannot stand.

[70] Having considered the entire discussions of the Committee as reflected in
the record, as well as the exclusion of all female candidates from the shortlist,
black and white, I am of the view that to opine that race was ‘an absolute
exclusion’ or that there was ‘a naked preference’ for a particular race would not
be an accurate encapsulation of what ultimately transpired in relation to the
Petrusburg post.

[71] From my point of view, lip service was paid to the constitutional imperative
of gender transformation notwithstanding that the systemic exclusion of women
from the legal profession was one of the historic imbalances that s 174(2) aimed
to redress. The failure of the Committee to engage with this important
constitutional imperative is one of the aspects that show that the Committee did
not sufficiently take the needs of the Petrusburg office into account.

[72] While one must be cautious not to be prescriptive to a selecting Committee,
I am of the view that given the weighty consideration of gender representivity
there can be no rational reason why female candidates of any race could not have

been included in the pool of shortlisted candidates. Doing so would have been a
step in the direction of fulfilling the equally important imperative of gender
transformation. This is all the more so because the post in question had previously
been occupied by a black male, thus advancing racial transformation.

[73] For all the reasons mentioned above, I am of the view that the approach
adopted by the Committee in relation to the Petrusburg post was, on the whole,
rigid, and ought to be set aside.

[74] I have already indicated that I agree that the Committee did not form a
quorum during the shortlisting process pertaining to the Bloemfontein posts, and
that its decision was therefore a nullity. On that basis alone, the shortlisting
process in relation to the Bloemfontein posts ought to be set aside.

[75] For all the reasons set out above, I would grant the order proposed in the
first judgment, but would not set aside the shortlisting and consequent
appointment made in respect of the Botshabelo post.

__________________

M B MOLEMELA

JUDGE OF APPEAL

Ponnan JA (Saldulker and Van der Merwe JJA and Potterill AJA
concurring)

[76] I have read the judgments prepared by Potterill AJA (the first judgment)
and Molemela JA (the second judgment). I feel constrained to write separately in
response to the second judgment.

[77] Like the court below, the first judgment upholds Mr Lawrence’s claim in
relation to all three magisterial districts. The second judgment agrees with the
first that because the Committee was not quorate, the Bloemfontein shortlisting
process is a nullity and falls to be set aside. However, it appears to part ways in
respect of Botshabelo and Petrusburg. As to Botshabelo: the second judgment
takes the view that ‘it cannot be rightly concluded’ (as the first judgment does),
that the process adopted was rigid, inflexible and quota driven and would,
accordingly, dismiss Mr Lawrence’s claim on that score. As far as Petrusburg
goes, the second judgment appears to agree with the first that the decision of the
Committee to exclude Mr Lawrence cannot stand, because of the apparent failure
by the Committee to afford proper recognition to ‘the weighty consideration of
gender representivity’.

[78] At the outset it may be important to restate certain basic tenets: (i) in
exercising the judicial function, judges are themselves constrained by the law; (ii)
judgments should be confined to the issues before the court; (iii) courts should
avoid deciding matters that are not relevant; (iv) it is not for a court to create new
factual issues; and (v) courts must distinguish between allegation, fact and
suspicion.28

28 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1) SACR
361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) paras 15 and 16.

[79] To borrow from Wallis JA in Fischer and Another v Ramahlele:
‘Turning then to the nature of civil litigation in our adversarial system it is for the parties, either
in the pleadings or affidavits, which serve the function of both pleadings and evidence, to set
out and define the nature of their dispute and it is for the court to adjudicate upon those
issues. That is so even where the dispute involves an issue pertaining to the basic human rights
guaranteed by our Constitution, for “it is impermissible for a party to rely on a constitutional
complaint that was not pleaded”. There are cases where the parties may expand those issues by
the way in which they conduct the proceedings. There may also be instances where the court
may mero motu raise a question of law that emerges fully from the evidence and is necessary
for the decision of the case. That is subject to the proviso that no prejudice will be caused to
any party by its being decided. Beyond that it is for the parties to identify the dispute and for
the court to determine that dispute and that dispute alone.
It is not for the court to raise new issues not traversed in the pleadings or affidavits, however
interesting or important they may seem to it, and to insist that the parties deal with them. The
parties may have their own reasons for not raising those issues. A court may sometimes suggest
a line of argument or an approach to a case that has not previously occurred to the
parties. However, it is then for the parties to determine whether they wish to adopt the new
point. They may choose not to do so because of its implications for the further conduct of the
proceedings, such as an adjournment or the need to amend pleadings or call additional
evidence. They may feel that their case is sufficiently strong as it stands to require no
supplementation. They may simply wish the issues already identified to be determined because
they are relevant to future matters and the relationship between the parties. That is for them to
decide and not the court. If they wish to stand by the issues they have formulated, the court
may not raise new ones or compel them to deal with matters other than those they have
formulated in the pleadings or affidavits.
This last point is of great importance because it calls for judicial restraint. . . .’29

[80] As Howie JA pointed out in Western Cape Education Department v
George:

29 Fischer and Another v Ramahlele and Others [2014] ZASCA 88; 2014 (4) SA 614 (SCA); [2014] 3 All SA 395
(SCA) paras 12-15.

‘. . . it is desirable that any judgment of this Court be the product of thorough consideration
of, inter alia, forensically tested argument from both sides on questions that are necessary for
the decision of the case.’30
Equally important, what binds a lower court is only the ratio of the decision of a
higher court and not what might be said en passant. Schreiner JA put it thus
in Fellner v Minister of the Interior:
‘The decision or judgment, in the sense of the Court’s order, by itself only operates, of course,
as between the parties; it can only state law in so far as it discloses a rule’.31

[81] I have some difficulty with what, I venture, may be described as the
piecemeal approach that the second judgment takes to the evidence in the matter.
This has resulted in both an acceptance, as also a rejection, of certain parts of each
party’s case. The second judgment also calls in aid certain statistics that formed
no part of either party’s case. In that, it strays beyond the confines of the appeal
record. Even accepting that we can take judicial notice of those statistics, their
relevance, dating back over two decades as they do and, which is directed at a
point that does not squarely arise in the appeal, is doubtful.

[82] As best as can be discerned, the resort to the statistics, as also the approach
and the reasoning adopted by the second judgment, appears to misconstrue the
nature of the case that serves before us on appeal. Mr Lawrence did not seek to
impugn the applicable regulations or AP. Rather he challenged the manner in
which the Committee and the other appellants interpreted and applied those
provisions. The validity of the framework for the appointment of magistrates,
being s 174 of the Constitution, Regulation 5 of the regulations and the AP is,
therefore, not an issue before this Court.

30 Western Cape Education Department and Another v George [1998] 2 All SA 623 (A); 1998 (3) SA 77 (SCA)
at 84E.
31 Fellner v Minister of the Interior [1954] 4 All SA 304 (A); 1954 (4) SA 523 (A) at 542D-E.

[83] What is more, Mr Lawrence did not seek to advance a case based on gender
discrimination. Nor, being a male candidate, could he have advanced such a case.
His case, as I understand it, is that he had been excluded ante omnia, so to speak,
because he was a white male. To the extent that gender was alluded to by him, it
was in support of his foundational hypothesis that the resolve to exclude all white
candidates was so firm and inflexible, that even white females did not make the
cut.

[84] The official response to Mr Lawrence from the Secretary of the Committee
was:
‘The Chairperson of the Appointments Committee directed that you be informed that you
cannot be included in the short-list for any of the posts you have applied for as you do not meet
the section 174(2) of the Constitution-criteria in any of those offices.’
Section 174(2) reads:
‘The need for the judiciary to reflect broadly the racial and gender composition of South Africa
must be considered when judicial officers are appointed.’

[85] The Committee thus relied exclusively on the attainment of race and gender
transformation as the justification for having excluded Mr Lawrence from
consideration. The second judgment opines that ‘lip service was paid to the
constitutional imperative of gender transformation’. That must mean that one of
the legs relied upon by the appellants in resisting Mr Lawrence’s claim cannot be
sustained. Moreover, the finding that ‘lip service was paid to the constitutional
imperative of gender transformation’, in and of itself, ought to render the entire
shortlisting process constitutionally indefensible.

[86] To my mind, the shortlisting for each magisterial district can and should
not be approached as hermetically sealed enquiries. This is because the
consideration of candidates for each district was, in truth, part and parcel of one

shortlisting process. As pointed out in the answering affidavit filed on behalf of
the appellants:
‘Members of the Committee and the Chief Magistrates or Cluster Heads, as they are called, for
the 14 Administrative Regions are invited to the meeting. The Cluster Heads have no voting
rights. Their purpose at the meeting is to advise the Committee of the needs of the Cluster in
general as well as the needs of each individual office where posts were advertised.’

[87] The Committee commenced with its deliberations for the Free State cluster
on Friday 18 January 2019. The shortlisting process continued on
Monday 21 January 2019, after the intervening weekend. At the commencement
of the process, the following is recorded:
‘CHAIRPERSON: Thank you. You can take us through your province first Ms Nalia, tell us
what you have, how many race break up and then go down to the office that you will be dealing
with and what you think would be appropriate, what do you need.’
At the relevant time Ms Nalia was the Chief Magistrate and Cluster Head.

[88] The following from the record shows that the Committee did not itself
approach the shortlisting for each magisterial district as discreet enquiries:
‘UNIDENTIFIED PERSON: We parked Skosana for the Free State, so we can look at him
now.
CHAIRPERSON: Oh yes. We know him?
UNIDENTIFIED PERSON: Yes, he is our Secretary-general, but apparently from
Buthatswaba a very highly well regarded in terms of civil experience as well, Skosana.
CHAIRPERSON: Okay.
UNIDENTIFIED PERSON: But I would prefer you to . . . (indistinct) if you will give him the
opportunity.
CHAIRPERSON: Let us now place him, because he has already been short listed previously.
MS NALIA: Okay.
CHAIRPERSON: Prieska Mafotlha.
UNIDENTIFIED PERSON: He has been short listed in Mpumalanga.
CHAIRPERSON: Okay, Mafothla?
UNIDENTIFIED PERSON: Short listed in Northern Cape.

UNIDENTIFIED PERSON: Northern Cape. Let me just see how many times.
UNIDENTIFIED PERSON: (Person talking in the background).
CHAIRPERSON: Jan Kempdorp.
UNIDENTIFIED PERSON: Twice as well as acting . . . (intervention).
CHAIRPERSON: Okay, Ghabisi.
UNIDENTIFIED PERSON: It is the same one?
CHAIRPERSON: Yes, just been short listed. Acting in Ficksburg.
UNIDENTIFIED PERSON: He is acting in Ficksburg, but we can . . . (intervention)
CHAIRPERSON: If there is no other acting. Let us just check the actings. Can we just go down
Simani? Okay, he has been short listed. Katye has been short listed. I am not sure I have got
that surname.
UNIDENTIFIED PERSON: I am checking him now, because I also do not remember him. He
was short listed in Limpopo.’

[89] In respect of this particular cluster, the Committee commenced with
Ficksburg, before proceeding to a consideration of Botshabelo, Petrusburg and
Bloemfontein. Insofar as Ficksburg is concerned, this is how the shortlisting
process commenced:
‘CHAIRPERSON: We already have two coloured males, why do we not look at coloured
female, Indian male and Indian female?
MS NALIA: That works with us.
CHAIRPERSON: Start there and then if we do not get the number, the required number then
we fall back to coloured male.
UNIDENTIFIED PERSON: Well, you can go coloured.
CHAIRPERSON: Coloured female and Indian male and Indian female.
UNIDENTIFIED PERSON: Yes okay.’

[90] The Committee’s targeted approach to Ficksburg set the tone for what was
to follow in respect of Botshabelo, Petrusburg and Bloemfontein. It is indeed so
that it was stated in the answering affidavit filed on behalf of the appellants that
the ‘process is implemented in a nuanced and flexible manner and there is no bar

to shortlisting of white males’, but that is not borne out by the record, which is
where we need look for the real reasons for the decision.

[91] The fixed resolve to exclude any and all white candidates on account of
their race is clear. The refrain, as the following excerpts from the record reveal,
was a repeated and persistent one: ‘I am of the view that if we have 17 white
persons in the province already, that is enough’; ‘I think that three [white male
magistrates] is enough for now’; ‘Ja, No we are not looking for white males in
your cluster at all’; ‘Anything you need except for white’; ‘Not white. Just female,
but not white’; ‘. . . Female whites, are we not accepting? No.’; ‘If we can find
more of the other two races that are lacking then we do not consider any white
person’; ‘Take away the white. Take away the white’; and ‘No, we are not looking
for white males in your cluster at all’.

[92] As a result of this approach Mr Lawrence’s application was not considered
at all. Instead, his candidacy was dismissed out of hand solely on the basis that
he was a white male. The second judgment points to the fact that the information
of all of the candidates was condensed and displayed on a screen as support for
the proposition that Mr Lawrence’s candidature was considered. However, the
record shows that when it came to candidates who did not fall within the group
targeted for exclusion, the Committee did not merely content itself with the
information that was displayed on the screen.

[93] The following from the record is illustrative of the approach taken to those
candidates who were targeted for inclusion:
‘MS NALIA: Mr Steyn is currently the acting head of court at Moorreesburg which we have
advertised, so he will be short listed there. B.Jus LL.B, district court prosecutor four years,
Regional Court prosecutor seven months. Relief prosecutor two years and three months. He
was then a magistrate for 12 years and nine months. Resigned in 2014. Was an advocate for

three years and ten months. Acted as magistrate for two months and then again for two years
and two months. Has been acting as head of court Moorreesburg since 2018.
CHAIRPERSON: Reasons for resignation.
MS NALIA: A22 please?
UNIDENTIFIED PERSON: Madam Chair, this Moorreesburg where is it?
MS NALIA: Western Cape.
UNIDENTIFIED PERSON: Oh, Western Cape.
MS NALIA: It was supposed to be advertised, the one which is acting. He doesn't indicate why,
just went to private practise.
CHAIRPERSON: Do we consider him?
MS NALIA: He has got [lots] of experience.
CHAIRPERSON: [Lots] of experience.
MS NALIA: Yes.
CHAIRPERSON: Steyn is in.
MS NALIA: That is our forth one.
CHAIRPERSON: Looking for the fifth one. Cupido has been short listed how many times?’

[94] In contrast, this is what happened when Mr Lawrence’s name came to be
mentioned in respect of Botshabelo:
‘UNIDENTIFIED PERSON: There is a Mr Lawrence from Petrusburg, but I think he must be
acting. . . .
MS NALIA: If I may, I do not know if I am allowed to interfere.
CHAIRPERSON: Yes.
MS NALIA: Our cluster has 11 white males. I was also looking at it against the cluster
establishment. Given the numbers that we have, the low numbers that we have in terms of
coloured males, Indian males in the cluster and given the needs of that community, especially
Botshabela.
CHAIRPERSON: Yes?
MS NALIA: We have, there is a need, there is existing – if I may just give you a compliment
[complement] of that office.
CHAIRPERSON: Before we go there, we are to consider people who have for instance will
not be . . . (indistinct). We just need to know who has applied and then we will see if the person
fits.

MS NALIA: Mr Lawrence is . . . .(intervention)
CHAIRPERSON: Not necessarily that the person . . . (indistinct, everybody is talking
simultaneously).
MS NALIA: Acting magistrate.
UNIDENTIFIED PERSON: Mr Lawrence is not a magistrate, he is an acting magistrate.
MS NALIA: Acting magistrate.’

[95] As the following from the record shows, it did not get any better when
Mr Lawrence’s name was raised in respect of Petrusburg:
‘CHAIRPERSON: . . . Which is the next office?
MS NALIA: Petrusburg.
. . .
CHAIRPERSON: Petrusburg, okay.
MS NALIA: This position was previously occupied initially by as I remember Mr Mchaiya
and then he was – came through to Bloemfontein and acting magistrate Mr Lawrence has been
there, but as I indicated earlier our cluster establishment, we are sitting with 11 white males at
presently.
CHAIRPERSON: No, we are not looking for white males in your cluster at all.
MS NALIA: All right.
CHAIRPERSON: And even females, how are your white females?
MS NALIA: We have only got six, so we can – I looked at the demographics, we can maybe
look at one or two white females, but other than that we have to place, for us we have to place
emphasis also on the coloured and the Indian females.’

[96] The difference in approach by the Committee when considering the
candidacy of someone, on the one hand, like Mr Steyn (who had not been targeted
for exclusion) and, on the other, someone like Mr Lawrence (who had been
targeted for exclusion), is patent. It calls the lie to the assertion in the answering
affidavit that the ‘process is implemented in a nuanced and flexible manner and
there is no bar to shortlisting of white males’. In argument, counsel for the
appellants was invited to point us to anywhere in the record where Mr Lawrence’s

candidacy received, even remotely, the same consideration as the candidates who
had made the shortlist. He could not.

[97] The record is thus clear enough. It is, accordingly, not necessary to
speculate, as the second judgment purports to do, as to what may or may not have
been said. When Mr Lawrence launched his application, he did not have to hand
the administrative record. After the record had been filed by the appellants,
Mr Lawrence filed a comprehensive supplementary affidavit. When an applicant
in review proceedings files a supplementary affidavit, after having had sight of
the record, he is in effect fully stating his case for the first time.32 The
administrative record is usually necessary for a court to undertake the task of
determining the regularity of the administrative action sought to be impugned.33
It helps shed light on what happened, why it happened and it may undermine ex
post facto justifications offered by the decision-maker of the decision under
review.34

[98] The second appellant, the Regional Court President for the Free State, who
chaired the Committee, deposed to what was styled an ‘answering affidavit to the
supplementary founding affidavit’. Neither she, nor any of the other deponents
took issue with the accuracy of the record. Mr Lawrence made fairly extensive
reference to the record in his supplementary founding affidavit. Those allegations
barely elicited an answer. Instead, the second appellant responded with vague,
generalised responses. In those circumstances, it hardly seems fair for the second
judgment to hold that ‘nothing is known of what was said when the members
were talking simultaneously’. What was said, would certainly have been known

32 City of Cape Town v South African National Roads Authority Limited and Others [2015] ZASCA 58; 2015 (3)
SA 386 (SCA); [2015] 2 All SA 517 (SCA); 2015 (5) BCLR 560 (SCA) paras 35-37.
33 Democratic Alliance and Others v Acting National Director of Public Prosecutions and Others [2012] ZASCA
15; [2012] 2 All SA 345 (SCA); 2012 (6) BCLR 613 (SCA); 2012 (3) SA 486 (SCA) para 37.
34 Turnbull-Jackson v Hibiscus Coast Municipality [2014] ZACC 24; 2014 (6) SA 592 (CC); 2014 (11) BCLR
1310 (CC) para 37.

to the second appellant. No doubt, if favourable to the appellants, that would have
been placed before the court. In particular, there was no suggestion by any of the
appellants that anything meaningful was, in the words of the second judgment,
‘not captured by the recording’.

[99] It bears emphasis that the appellants are no ordinary litigants. This matter
calls into question the legitimacy of the appointment process for magistrates,
Over and above that, the allegations raised, in the final analysis, are levelled
against magistrates; senior ones at that, who may well have a ‘higher duty to
respect the law’. After all, none of the appellants can be described as ‘. . . an
indigent and bewildered litigant, adrift in a sea of litigious uncertainty, to whom
the courts must extend a . . . lifeline. . . .’.35

[100] The Committee’s emphasis on race to the exclusion of all else is further
evinced later in the record in the following exchange when Petrusburg was being
considered:
‘CHAIRPERSON: Not white. Just female, but not white.
MS NALIA: In that position?
CHAIRPERSON: Yes.
MS NALIA: Then we are looking definitely at - but then I was looking at - but as you said we
have got to be very careful about the interpreter. So I am going to take that into account.
UNIDENTIFIED PERSON: Take away the white.
MS NALIA: All right.
UNIDENTIFIED PERSON: Take away white.
MS NALIA: Sorry?
UNIDENTIFIED PERSON: (Person talking in the background).
MS NALIA: The reason I stated white female was because, but you have given me a little bit
of insight as to how to proceed. I looked at the Afrikaans community. It is – but when I say

35 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd [2014] ZACC 6; 2014 (5) BCLR
547 (CC); 2014 (3) SA 481 (CC) para 82.

Afrikaans, it is the Sothos and Tswanas that speak, they speak Afrikaans and the court setup
etcetera, that is what I looked at.
CHAIRPERSON: We are also looking for experience ma’am.
MS NALIA: We are also looking for experience. Acting experience and managerial
experience. So are we out of white positions?
CHAIRPERSON: And also if there are transfer.
MS NALIA: Female whites, are we not accepting?
UNIDENTIFIED PERSON: No.
MS NALIA: All right.
UNIDENTIFIED PERSON: We have to look at females of colour for your managerial
positions.’

[101] The record thus shows that what occurred was indeed ‘rigid, inflexible and
quota-driven’. The blanket exclusion of white candidates, no matter their
strengths, is disconcerting. No white candidate was considered for Bloemfontein
either. Regrettably, not even excellence could open the door to the consideration
of a white candidate. And, as the following excerpt shows, even when the
Committee began to run out of candidates from the group targeted for inclusion,
it was unwavering in its commitment:
‘CHAIRPERSON: . . . We are running out of – let us go down. May be we might find a . . .
(intervention).
UNIDENTIFIED PERSON: Indians and coloureds.
CHAIRPERSON: Anything you need, except for white.
MS NALIA: Thank you, okay.
. . .
UNIDENTIFIED PERSON: No, we go . . . (indistinct), there is nothing.
CHAIRPERSON: So what do we do. You are looking for coloured males, coloured Indian,
African males.
UNIDENTIFIED PERSON: Experience. The problem is experience.
CHAIRPERSON: Experience yes, because one person station and head office. So we cannot
take . . . (intervention)

MS NALIA: And if I may Chair amongst the women that we saw there, that both may be
yourself and myself know of some people that notwithstanding you might be able to still offer
them that position because of the knowledge you might have of the relevant persons.
CHAIRPERSON: From Natalie’s side we do not know anyone?
MS NALIA: Nothing from that list then. The person that I thought would be a good candidate,
but we said it cannot be a white female.
CHAIRPERSON: Yes.’
This exchange demonstrates a fixed resolve on the part of the Committee to
exclude all white candidates. Nothing else mattered, even when the cupboard was
bare. The conclusion is thus inescapable that the Committee plainly used race as
a disqualifying criterion.

[102] In any event, the asserted reliance by the appellants on s ‘174-criteria’,
may, in itself, demonstrate the fallacy in the Committee’s approach. Unlike the s
174(1) requirements, such as fitness and propriety, which operate as prerequisites,
s 174(2) of the Constitution cannot be invoked as a self-standing basis for
exclusion. It follows that the starting point of the enquiry did not accord with the
overall legislative scheme and consequently the Committee’s admitted process
was flawed. Section 174 of the Constitution employs the phrase ‘broadly
representative’. Nothing in the legislative scheme permits the targeted exclusion
of white candidates from consideration. And, yet this was precisely what
happened in this case.

[103] The Court below took the view that:
‘In the process the Committee failed to adhere to its own policy in that it did not consider the
candidature of all applicants whose applications were compliant. White people and
[Mr Lawrence] in particular was not considered at all.’
It accordingly concluded that:
‘Insofar as the Committee acted as a gatekeeper, preventing any whites to be interviewed, it
lost the opportunity to duly consider whether [the] applicant was not perhaps such an excellent

candidate that he should be recommended for appointment notwithstanding the obligation to
ensure that s 174(2) is diligently applied.’
In that, it cannot be faulted.

[104] In my view, the overall approach of the Committee is not consistent with
the proper interpretation and application of s 174 of the Constitution, regulation
5 of the Regulations or the AP. Rather than considering race as but one of the
factors to be taken into account, the Committee repeatedly excluded candidates
solely on the basis of their race. That rigid and unwavering approach had the
effect of eliminating Mr Lawrence from consideration. The rigidity of the
approach (a rigidity that is generally eschewed by our courts) and failure to have
regard to any factor other than race was thus both unlawful and unconstitutional.

[105] In conclusion, it is perhaps necessary to record that there can be no quarrel
with the transformational imperatives enshrined in our Constitution, which most,
if not all of us, surely embrace. But, that is not what this case is about. It is about
the process employed in pursuit of those laudable aspirational goals, which, as I
have endeavoured to demonstrate, does not withstand scrutiny. For, even
restitutionary measures, that are vital to our transformative constitutional project,
should be approached in a nuanced, flexible and balanced manner.

_________________
V M PONNAN
JUDGE OF APPEAL

Appearances:

For appellants:                  D J Groenewald
Instructed by:                    State Attorney, Pretoria.
State Attorney, Bloemfontein.

For respondent:                M du Plessis SC with T Palmer and S Mdletshe

Instructed by:
Power Singh Inc, Johannesburg.
Frank Botha Attorneys, Bloemfontein.

For amicus curiae:
B Winks
Instructed by:                    Webber Wentzel Attorneys, Sandton.
Symington De Kok Attorneys, Bloemfontein.
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:

2 December 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
The Magistrates Commission and Others v Richard John Lawrence (Case no 388/2020)
[2021] ZASCA 165 (2 December 2021)
Today the Supreme Court of Appeal (SCA) dismissed an appeal with costs, including the costs of two
counsel.
The appeal was about the legality and constitutionality of the shortlisting process of the Magistrates
Commission and its decision to overlook the respondent. The respondent, Mr Lawrence, an acting
magistrate, applied for the position of a permanent magistrate in Bloemfontein, Botshabelo and
Petrusburg. He was not shortlisted for any of these posts. Aggrieved, he approached the Free State
Division of the High Court, Bloemfontein (high court) for relief. The Magistrates Commission (the
Commission), Mr Zola Mbalo N O, the Chairperson of the Appointments Committee of the Magistrates
Commission (the Chairperson), the Minister of Justice and Correctional Services (the Minister) and
Cornelius Mokgobo N O, the Acting Chief Magistrate Bloemfontein Cluster “A”, were cited as the first
to fourth respondents respectively. The Helen Suzman Foundation was admitted to the proceedings as
an amicus curiae.
The application succeeded and the appeal was with the leave of that court. The appeal was against the
whole judgment and order of the high court. The first judgment in the Supreme Court of Appeal (SCA)
by Potterill AJA dealt with, two ancillary issues. First, it was contended on behalf of the respondent that
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 of 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. The SCA found that as the meeting was not
quorate, the decisions taken at that meeting, including the shortlisting of candidates for Bloemfontein,
could not stand and, accordingly, fell to be set aside. With regards to the Bloemfontein post the SCA
held that the issue of non-joinder was academic because the committee was not quorate.
In terms of the merits, the SCA considered ss 174(1) and 174(2) of the Constitution and the regulations
published under the Act for the appointment of magistrates. It was held that the fixed resolve to exclude
any and all white candidates on account of their race was clear. The SCA held that the approach of the
Committee was not consistent with the proper interpretation and application of s 174 of the Constitution,
regulation 5 or the appointments procedure (AP). 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 was said to not meet the threshold set by our courts and could

not be countenanced. Consequently, the SCA ordered that the appeal be dismissed with costs,
including the costs of two counsel.
Molemela JA, in her judgment (second judgment), agreed with the reasoning and conclusion in relation
to the non-joinder issue. As regards the shortlisting process followed by the  Committee, her view was
that based on the record of the meeting insofar as the Committee’s discussions pertaining to the
Botshabelo post were concerned, it could not be rightly concluded that the shortlisting process adopted
by the Committee in relation to that post was rigid, inflexible and quota-driven. As regards the
Petrusburg post, she agreed that the Committee’s decision be set aside, highlighting the fact that the
Committee irrationally failed to consider shortlisting female candidates, thereby failing to advance
gender transformation in the judiciary in relation to that post. Regarding the Bloemfontein post, her view
was simply that because the Committee was not quorate when the shortlisting process was undertaken,
on that ground alone, the Committee’s decision was a nullity and ought to be set aside. She was of the
view that once reliance had been placed on the provisions of s 174(2) of the Constitution (as has
happened in this matter), a brief historical background that informed the inclusion of that provision
became necessary for purposes of context. She then used statistics and the provisions of s 174(2) to
showcase that the race of the candidates had to be understood whenever issues pertaining to
transformation of the judiciary needed to be decided.
Ponnan JA was of the view that the second judgment approached evidence in a piecemeal approach
and that it called in aid certain statistics that formed no part of either party’s case. In that, it strayed
beyond the confines of the appeal record. According to Ponnan JA, Mr Lawrence did not seek to impugn
the applicable regulations or AP. Rather he challenged the manner in which the Committee and the
other appellants interpreted and applied those provisions. The validity of the framework for the
appointment of magistrates, being s 174 of the Constitution, regulation 5 of the regulations and the AP
was, therefore, not an issue before this Court. It was also found that Mr Lawrence did not seek to
advance a case based on gender discrimination. Ponnan JA held that, to the extent that gender was
alluded to by him, it was in support of his foundational hypothesis that the resolve to exclude all white
candidates was so firm and inflexible, that even white females did not make the cut.
Ponnan JA further held that the blanket exclusion of white candidates, no matter their strengths, was
disconcerting. The conclusion was thus inescapable that the Committee plainly used race as a
disqualifying criterion. It was held that s 174 of the Constitution employs the phrase ‘broadly
representative’. Nothing in the legislative scheme permits the targeted exclusion of white candidates
from consideration. And, yet this was precisely what happened in this case. The rigidity of the approach
(a rigidity that is generally eschewed by our courts) and failure to have regard to any factor other than
race was thus both unlawful and unconstitutional.

~~~~ends~~~~