Getting the balance right

Why the principle of non-racialism in State appointments is important

IT IS greatly disconcerting that in a legal brief published a few days ago Mr BJ King, a senior magistrate in the Pretoria Justice College reportedly accused the Justice Department of racial and gender bias.

This after the Department reportedly failed to list him on the Magistrates’ Commission shortlist for the position of a regional court magistrate.

To stall the process, pending his application to the relevant equality court, he unsuccessfully made application to the Pretoria High Court, which dismissed his application holding it was not urgent. According to a Pretoria News report, the applications of persons who were not the “right gender or race”, regardless of their qualifications or experience, were not shortlisted by the “score sheet system” used.

In the meanwhile, the interview process for posts has been postponed so that the department can study a judgment of the Eastern Cape Equality Court, which could have an influence on how the commission should compile a shortlist.

The South African Constitution makes the status of non-racialism categorically clear by declaring in section 1, dealing with the fundamental values on which our democratic state is based, that non-racialism is one of these values.

Furthermore, both the ANC’s constitution and the Freedom Charter endorse this principle. The charter declares that “South Africa belongs to all who live in it, black and white”.

The above instances of racial bias are unfortunately not isolated since the legal brief for December 13 also reported the following flagrant disregard in relation to the practise of non-racialism in the recent appointments of magistrates made in Bloemfontein, Botshabelo and Petrusburg, which have fortunately been set aside by the Free State High Court in a review application that found “pure discrimination” against white and female applicants.

In this regard, The Volksblad described that there had been a successful legal application by Richard Lawrence, an acting magistrate from Petrusburg, which hopefully could have a ripple effect.

This unsatisfactory state of affairs became apparent after the Minister of Justice announced 207 appointments in November of new magistrates to come into operation on February1.

As a result of a meritorious judgment, the appointments of six magistrates in Bloemfontein and office heads for Botshabelo and Petrusburg have now been set aside.

In this precedent-setting case, Judge Johann Daffue, in a judgment that reflected the independence of the judiciary, described the selection process for those three courts as “unconstitutional”.

The judge quoted from the official record of one of the meetings where a committee member exclaimed: “Not white. Female, but not white.”

In another comment: “Take away the white people.” In the same meeting, it was recorded that the committee should not consider white applicants for a position if there were enough applications from designated groups, regardless of experience or qualifications.

This state of affairs is entirely unsatisfactory, bearing in mind that magistrates have inordinate responsibility in their work. It is imperative for the public interest that persons appointed as magistrates have the required qualifications and experience to fulfil their demanding tasks as presiding officers.

If not, miscarriages of justice will most certainly occur. This does not mean that affirmative action should not occur. Indeed it is necessary in the interest of social and economic justice and authorised by section 9(2) of the Constitution, which states that “to promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination may be taken”.

However, in the appointment of magistrates, section 195 of the Constitution must also be considered, which requires the public administration to “be broadly representative of South African people, with employment and personal management practices based on ability, objectivity, fairness and the need to redress the imbalances of the past to achieve broad representation”.

From these two provisions of the Constitution, it is manifest that in appointing magistrates, not only is affirmative action a factor, but “ability, objectivity, fairness” need to be considered to obtain the correct balance, ensuring that the appointments of magistrates is constitutional.

If the appointment of magistrates is based essentially on cadre deployment, this will not occur.

This was held to be the position in the Eastern Cape High Court in the 2008 Mlokoti v Amatole District Municipality judgment, in which the court declared that crude cadre deployment was unlawful.

Notwithstanding, this does not preclude affirmative action in terms of the Constitution, which is different from inappropriate cadre deployment.

The answer is to get the balance right for the benefit of all.

GEORGE DEVENISH A committee member exclaimed: ‘Not white. Female, but not white.’