Magistrate’s Commission and Others v Lawrence

Case overview: Power & Associates represented Mr Richard John Lawrence (Mr Lawrence), the Respondent, in an appeal by the Magistrates Commission and others regarding the shortlisting proceedings for the vacancies of magistrates in several districts in the Free State. The court a quo declared the shortlisting proceedings to be unlawful and unconstitutional, and consequently set aside the applicable shortlisting process, recommendations, and appointments that arose. The crux of the matter pertained to the legality and constitutionality of the Magistrates Commission’s shortlisting process and its resultant decision to overlook Mr Lawrence for recommendation to the Minister of Justice for appointment as a permanent magistrate.

Mr Lawrence argued that the Magistrates Commission’s Appointments Committee failed to have due regard to the lawful and mandatory considerations required when evaluating a candidate’s suitability, and instead assessed his application – and excluded him – solely because he is a white male. It was submitted that, in doing so, the Appointments Committee ignored Mr Lawrence’s experience and record of performance while serving as an acting magistrate and flouted the provisions of section 174 of the Constitution of the Republic of South Africa, 1996 and regulation 5 of the Regulations for Judicial Officers in Lower Courts, 1994.

Before the Supreme Court of Appeal, the issues for determination were as follows:

• Whether there had been material non-joinder.
• Whether the Appointments Committee, which sat for the Bloemfontein shortlisting process, was quorate.
• Whether the Appointments Committee in its shortlisting process complied with, and correctly applied, the relevant legal framework for the appointment of magistrates, including as provided for in terms of section 174(2) of the Constitution.

The matter was heard on 1 September 2021 and judgment was handed down on 2 December 2021. The appeal was dismissed with costs.

The majority judgment penned by Potterill AJA, with Ponnan, Saldulker and Van Der Merwe JJA concurring, held that the Appointments Committee meeting was not quorate, and the matter of non-joinder was rendered academic. It held that the written reasons for the appointment decision made it evident that Mr Lawrence was excluded on the basis of his race and gender. No other important factors, such as experience, qualification, office needs and managerial skills, were considered and instead race was used to exclude white candidates from consideration.

In this regard, the Court noted that “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 might have scored in respect of the other relevant factors is revealing.” The court held that the approach of the Appointments Committee was not consistent with section 174 of the Constitution or the relevant legislative framework. It held that “such an approach does not meet the threshold set by our courts and cannot be countenanced.” Consequently, the appeal was dismissed with costs.