Du Preez v Minister of Justice and Constitutional Development and Others (368/04 , ECJ24/2006) [2006] ZAECHC 17; [2006] 3 All SA 271 (SE); 2006 (9) BCLR 1094 (SE); [2006] 8 BLLR 767 (SE); (2006) 27 ILJ 1811 (SE) (13 April 2006)

REPORTABLE

FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ NO : 024/2006

PARTIES: IGNATIUS PETRUS DU PREEZ v THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT & 3 OTHERS

REFERENCE NUMBERS -

Registrar: 368/2004

DATE DELIVERED: 13 ARPIL 2006

JUDGE(S): ERASMUS J

LEGAL REPRESENTATIVES -

Appearances:

for the Applicant(s)/Appellant(s): A BEYLEVELD

for the respondent(s): RK PILLAY AND M BOOI

Instructing attorneys:

Applicant(s)/Appellant(s): BROWN BRAUDE & VLOK

Respondent(s): THE STATE ATTORNEYS

CASE INFORMATION -

Nature of proceedings : Complaint i.t.o. s 20 of the Promotion of Equality and

Prevention of Unfair Discrimination Act 4 of 2000.

Topic: Unfair Discrimination Act 4 of 2000.

Keywords: CONSTITUTIONAL LAW – Equality – Affirmative action as

unfair discrimination – Reverse discrimination justiciable i.t.o. s 6 of the Equality Act – Interpretation of s 14(1) of the Act to dovetail with s 9(2) of the Constitution – Countervailing constitutional principles – Value judgment – Diversity of composition of judiciary – Section 174(4) of the Constitution – Race and gender – Remedial and restitutionary elements of affirmative action measures – Enquiry i.t.o. Chapter 3 of the Act – Discharge of onus i.t.o s 13 – Considerations to be takeninto account – Section 14(2) and (3) – Employment Equity Act relevance of authority.

REGIONAL COURT MAGISTRATES – Appointment of i.t.o. Magistrates Act 90 of 1993 – Shortlisting procedure on grounds of race and gender – Absolute bar to white males competing against other categories of persons – Measure irrational, inconsistent and disproportional – Unfair discrimination – Desirability of departmental employment equity plan.

IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

In its capacity as an Equality Court as described in section 16 of the Promotion of Equality And Prevention of Unfair Discrimination Act, No. 4 of 2000

Case no: 368/2004

Date heard: 8.12.2005

Date delivered:13.4.2006

In the matter between:

IGNATIUS PETRUS DU PREEZ Complainant

and

THE MINISTER OF JUSTICE AND

CONSTITUTIONAL DEVELOPMENT First Respondent

THE SECTRETARY OF THE MAGISTRATES

COMMISSION Second Respondent

MEERA NAIK-MESTRY Third Respondent

LOKWALO ROSE MOGWERA Fourth Respondent

JUDGMENT

A.R. ERASMUS , J:

INTRODUCTION AND FACTS

[1] The Magistrates Commission (‘the commission’) is a statutory body established in terms of the Magistrates Act 90 of 1993.1 Its objects relate to the many and varied aspects which affect the position and functioning of judicial officers in the lower courts.2 This includes the duty ‘to ensure that the appointment of judicial officers take place without favour or prejudice’.3 The commission is, further, required to advise the minister (the first respondent) regarding the appointment of judicial officers in the respective lower courts.4 The minister shall, after consultation with the commission, appoint magistrates in respect of such courts.5 The commission may establish committees as it may deem necessary,6 which would include the performance by the committee of functions in relation to the appointment of magistrates.

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

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

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

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

3. Accordingly the parties have agreed that should the above Honourable Court find that the said criteria (“A3”) constitutes unfair discrimination, an order should issue pursuant to paragraphs 2, 3, 5 and 6 of the complainant’s notice.’

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

‘2. An order setting aside the criteria utilized in selecting suitable candidates to be short listed for the posts; and

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

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

6. Costs of the proceedings.’

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

[5] The criteria for the Port Elizabeth posts of regional court magistrate appear from the shortlisting form relating to the complainant (the annexure A3 referred to in the agreement10):

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

[7] The complainant has 19 years experience as a magistrate and holds the degrees of BJuris, LLB and Master of Public Administration. He avers that in the shortlisting of candidates, the commission unfairly discriminated against him on the basis of race and gender. He illustrates what he terms ‘the irrational, unreasonable and unconstitutional criteria used by the committee’ by comparing his score sheet with that of one of the other two candidates who were in the event shortlisted for the Port Elizabeth posts:

[8] The complainant points out that for the category ‘Experience as Magistrate’, the other candidate was allocated only 1 point (less than 2 years’ experience), whereas he was allocated 3 points (more than 10 years’ experience). They were both allocated 1 point under ‘Qualifications’. In relation to ‘Race’ and ‘Gender’, he - as a ‘White’ ‘Male’ - scored 0; she - as a ‘Black’ ‘Female’ - scored 3 in each of the categories. His total score was 4, hers 8. He submits that on the basis of the score sheets, it was impossible for a white male to compete successfully against a black woman. He contends that in the result he was the victim of unfair discrimination.

[9] The first respondent answered the complainant’s allegations through an affidavit of an official employed in the Department of Justice and Constitutional Development in the capacity of director. She asserts that the department at all times strenuously adheres to the principles and values of the Equality Act. She directs the attention of the court to the public duty vested in the respondent to adhere to the principles of the Constitution,11 in particular s 174(2) thereof which dictates that ‘the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are being appointed’.

[10] The policy and procedure relating to the performance by the commission of its statutory duties and functions are set out in the affidavit of its secretary. The secretariat, he says, is furnished with particulars of vacancies in the magistrates’ courts. Advertisements are placed in national newspapers and are disseminated to all magistrates’ offices. In each advertisement specific reference is made to the constitutional requirement of racial diversity of the judiciary. The secretariat, upon receipt of the applications, compiles profiles in respect of each applicant for the purposes of shortlisting and interviews. The profiles contain detail regarding each applicant’s personal particulars, current status/rank, applicable post-university legal experience, qualifications and general remarks. The profiles, as supplemented by the individual applicant’s curriculum vitae, are used as guidelines for the shortlisting of candidates. Shortlisting is done by the appointments committee.12 This committee determines the general criteria for shortlisting in respect of each advertised post. They are: experience, qualifications, the provisions of s 174(2) of the Constitution, and the specific needs of the office. Score sheets are used for shortlisting purposes. The committee has adopted a method whereby a specific weight is attached to each of the criteria on the score sheet. Candidates obtaining the highest score are shortlisted. In the case of positions for regional court magistrate the shortlist needs to be ratified by the commission prior to the interviewing of candidates. Interviews are thereafter conducted by the full commission. He lists the general criteria used by the commission for purposes of interviewing the shortlisted candidates.13 The commission recommends a first and alternative candidate to the minister for appointment in each advertised post. As at the date of the hearing of the complaint, no appointment had been made to fill the positions in Port Elizabeth. Recommendations had been made to the minister but she had not acted thereon due to this pending litigation.

[11] The complainant’s affidavit is answered on behalf of the second respondent by the chief personnel officer attached to the commission. Her affidavit, by and large, is composed of admission of the complainant’s factual averments, with denial of his contentions that he was unfairly treated. She denies that he was overlooked on the basis of unfair discrimination. It is common cause that two candidates, each with less than two years’ district court bench experience, were shortlisted and recommended for the Port Elizabeth regional court vacancies. One of these two is the person referred to above.14 The deponent states that this candidate had experience also as a prosecutor and a state advocate, and that when this was taken into consideration she met the required seven years post-university legal experience. It is common cause that both of the shortlisted candidates were women falling within the race classification of black for purposes of the appointment procedure. The deponent does not deny the assertion implicit in the complainant’s affidavit that the shortlisting was done exclusively on the results of the score sheets. The matter was argued on that basis.

UNFAIR DISCRIMINATION: THE CONSTITUTION AND THE EQUALITY ACT

[12] Equality among all our people lies at the heart of the Constitution.15 16 Section 1 thereof propounds the values upon which the Republic of South Africa is founded:

‘(a) Human dignity, the achievement of equality and advancement of human rights and freedoms.

Non-racialism and non-sexism.

Supremacy of the constitution and the rule of law.’

Chapter 2 of the Constitution contains the Bill of Rights, which is stated to be ‘a cornerstone of democracy in South Africa’ which ‘enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom’.17 In this broad normative context, equality is guaranteed in the Bill of Rights in the following specific terms:

‘Equality

9. (1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and freedoms. 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.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.’

[13] Parliament’s compliance with the dictate contained in s 9(4) of the Constitution was the enactment of national legislation in the form of twin measures: firstly the Employment Equity Act 55 of 1998, and secondly the Equality Act. Both of these acts flow from and give effect to s 9(3) of the Constitution. Counsel are agreed that the Employment Equity Act is not applicable to magistrates in that in terms of the Magistrates Act they are judicial officers, independent of the public service, and subject only to the Constitution. They do not work for the state. They are therefore not employees as defined in the Employment Equity Act.18 The parties are in agreement that these proceedings are therefore governed by the Equality Act.

[14] The central provision of the Equality Act is s 6 thereof which declares unequivocally: ‘Neither the State nor any person may unfairly discriminate against any person.’ There is manifest concordance in wording between this section and s 9(3) of the Constitution:19 both provisions unequivocally proscribe unfair discrimination in any form, including race and gender. The qualities that make up a good judicial officer of course have nothing to do with race or gender. It would therefore be improper and unfairly discriminatory to take such factors into account in the appointment of magistrates were it not for the constitutional and statutory approval of measures designed to advance persons or categories of persons disadvantaged by unfair discrimination. Such measures are commonly referred to as affirmative action.

[15] The Equality Act gives fulsome recognition to affirmative action measures. The preamble to the Act declares:

‘The consolidation of democracy in our country requires the eradication of social and economic inequalities, especially those that are systemic in nature, which were generated in our history by colonialism, apartheid and patriarchy, and which brought pain and suffering to the great majority of our people;

Although significant progress has been made in restructuring and transforming our society and its institutions, systemic inequalities and unfair discrimination remain deeply embedded in social structures, practices and attitudes, undermining the aspirations of our constitutional democracy;

The basis for progressively redressing these conditions lies in the Constitution which, amongst others, upholds the values of human dignity, equality, freedom and social justice in a united, non-racial and non-sexist society where all may flourish.’

‘Prohibited grounds’ of discrimination are defined to include race and gender.20 The stated objects of the Act21 are to give effect to the values of non-racialism and non-sexism;22 to provide for measures to facilitate the eradication of unfair discrimination, particularly on the grounds of race, gender and disability;23 to set out measures to advance persons disadvantaged by unfair discrimination.24 Any person applying the Act is enjoined to interpret its provisions to give effect to the Constitution, ‘the provisions of which’,

it is stated, ‘include the promotion of equality through legislative and other measures designed to protect or advance persons disadvantaged by past and present unfair discrimination’.25 Under the heading ‘Guiding principles’, one finds the prescript that in the application of the Act account must be taken of ‘(a) (t)he existence of systemic discrimination and inequalities, particularly in respect of race, gender and disability in all spheres of life as a result of past and present unfair discrimination, brought about by colonialism, the apartheid system and patriarchy’; and ‘(b) the need to take measures at all levels to eliminate such discrimination and inequalities’.26 The Act specifically prohibits and elaborates upon unfair discrimination on the grounds of race.27 The ‘ILLUSTRATIVE LIST OF UNFAIR PRACTICES IN CERTAIN SECTORS’ in the schedule to the Act is directed largely at areas of lingering past racial discrimination.

[16] Section 14 (1) of the Act provides as follows:

‘It is not unfair discrimination to take measures designed to protect

or advance persons or categories of persons disadvantaged by

unfair discrimination or the members of such groups or categories

of persons.’

This provision can be seen as the culmination of the strong affirmative action thrust of the Equality Act.28 On the face thereof, the provision – by declaring that affirmative action is not ‘unfair discrimination’ – would appear to place such measures beyond the purview of the Act, irrespective of their content and effect on others.

[17] The provision must not however be interpreted in isolation. Like all law, it must be viewed through the prism set by constitutional values and objectives. This is especially so in the case of legislation such as the Equality Act which was enacted with the specific purpose of giving effect to a constitutional dictate.29 The similarity in the wording of s 14(1) of the Equality Act and s 9(2) of the Constitution is striking. They refer in identical terms to measures designed to promote affirmative action. The difference in the wording of the two provisions is therefore significant: s 9(2) provides that such measures, ‘may be taken’ in order ‘(t)o promote the achievement of equality’; s 14(1) states that it is ‘not unfair discrimination’ to take such measures. The approval of affirmative action measures in the Constitution thus translates into a declarator in the Act to the effect that such measures are not unfair discrimination. This difference between the two provisions must, if possible, be reconciled. Because the Constitution is the supreme law, this means that s 14(1) must, if possible, be so interpreted as to dovetail with s 9(2).

[18] It is relevant to the interpretation of s 14(1) that although affirmative action measures do not necessarily disadvantage any other persons, inevitably some measures will have that effect - such as when one person is preferred over another on the basis of race or gender in the appointment to a position for which both had applied. To escape constitutional invalidity such measures must come within the protection afforded affirmative action by s 9(2) of the Constitution. What is the nature and extent of that protection? If the provisions of ss (2) of s 9 were to be interpreted as constituting an exception to the unfair discrimination proscribed by ss (3), then persons disadvantaged by affirmative action measures would have no protection under the equality rights guaranteed by the Constitution. If the Constitution were an ordinary legislative measure, such a construction of s 9 would be permissible. But the Constitution is not an ordinary statute. It is the supreme law which defines and reveals the ethical principles which underlie all law. Those principles are absorbed into and reflected in the values that inform the fundamental rights enshrined in the Bill of Rights. When applying the Bill of Rights, a court must promote all those values, and will therefore not readily accept an exclusion or diminution of a fundamental right even by another constitutional right, and certainly not by any other statute. The Constitution is therefore not subject to the canons of construction that govern the interpretation of ordinary statutes. A flexible and comprehensive approach is called for, acutely sensitive to all constitutional values and objectives. An interpretation of s 9(2) of the Constitution that sees its implicit approval of affirmative action measures as excluding or negating the right to equality, will therefore offend constitutional principle. Rather, affirmative action measures must be seen as essential and integral to the goal of equality; and not as limitations of or exceptions to the equality rights.30 31 Reverse discrimination is nonetheless justiciable in terms of s 6, despite the provisions of s 14(1) of the Act.

[19] Certainly, tension can and does arise between constitutional values. This often presents the courts with difficult constitutional questions - in practice much of constitutional law is concerned with such issues, as is the case in the present matter. Those issues must be resolved within the context of the tension existing between the countervailing constitutional principles, with due regard to the values that support those principles.32 33 This exercise requires a value judgment.

[20] The commission adopted the shortlisting criteria with a single purpose in mind, viz obeisance to the constitutional dictate that the racial and gender composition of South Africa must be considered when judicial officers are appointed.34 That single purpose did not include the objective of benefiting previously disadvantaged persons. The fact that the measure had such consequential effect is nevertheless relevant to the present enquiry. Both s 9 of the Constitution and s 14(1) of the Act recognize and by clear implication encourage measures ‘designed to protect and advance categories of persons disadvantaged by unfair discrimination’. In its context here, the phrase ‘designed to’ must be interpreted as meaning ‘likely to’.35 This interpretation accords with constitutional values and advances constitutional objectives. Such construction of the phrase ‘designed to advance’ in both s 9 and s 14(1), above, compels the court to give due weight to the fact that it was persons of categories previously disadvantaged by non-representivity on the bench that were advantaged over a category of persons previously favoured in such appointments. In as much therefore as neither s 9 of the Constitution nor s 14(1) of the Act envisages a purely negative concept of equality,36 it is relevant that the shortlisting measure applied by the appointments committee gave effect to the remedial and restitutionary elements of equality. As was stated in the Constitutional Court37 in regard to provisions of the interim Constitution now substantially repeated in s 9 of the Constitution:

‘Section 8 was adopted then in the recognition that discrimination against people who are members of disfavoured groups can lead to patterns of group disadvantage and harm. Such discrimination is unfair: it builds and entrenches inequality amongst different groups in our society. The drafters realised that it was necessary both to proscribe such forms of discrimination and to permit positive steps to redress the effects of such discrimination. The need to prohibit such patterns of discrimination and to remedy their results are the primary purposes of s 8 and, in particular, ss (2), (3) and (4).’

CHAPTER 3 OF THE EQUITY ACT: BURDEN OF PROOF AND DETERMINATION OF FAIRNESS OR UNFAIRNESS

[21] Section 13 of the Equality Act, read with the definitions in s 1 thereof, provides that if the complainant makes out a prima facie case of discrimination, not disproven by the respondent, then if the discrimination took place on the prohibited grounds of race or gender, it is unfair, unless the respondent proves that it was fair.

[22] The considerations that must be taken into account in determining whether the respondent has discharged that onus of proof, are set out in s 14(2) and (3) of the Act:

‘(2) In determining whether the respondent has proved that the discrimination is fair, the following must be taken into account:

(a) the context;

(b) the factors referred to in subsection (3);

(c) whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned.

(3) The factors referred to in subsection (2)(b) include the following:

(a) whether the discrimination impairs or is likely to impair human dignity;

(b) the impact or likely impact of the discrimination on the complainant;

(c) the position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group that suffers from such patterns of disadvantage;

(d) the nature and extent of the discrimination;

(e) whether the discrimination is systemic in nature;

(f) whether the discrimination has a legitimate purpose;

(g) whether and to what extent the discrimination achieves its purpose;

(h) whether there are less restrictive and less disadvantageous means to achieve the purpose;

(i) whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to –

(i) address the disadvantage which arises from or is related to one or more of the prohibited grounds; or

(ii) accommodate diversity.’

[23] These listed considerations do not supplant the test for the constitutionality of an affirmative action measure outlined above,38 but give substance to that test. The list is wide and comprehensive, but not necessarily exhaustive. Furthermore, not all the criteria there mentioned are applicable in all cases, nor do those that are relevant necessarily bear the same weight in the enquiry. Each case is to be decided on its own particular facts and circumstances. This requires ‘a careful and thorough understanding of the impact of the discriminatory action upon the particular people concerned to determine whether its overall impact is one which furthers the constitutional goal of equality or not’.39

[24] Of assistance, too, is the tabulation suggested by the Constitutional Court for the first stage of the enquiry into the question whether a legislative provision constitutes unfair discrimination: ‘Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not, then there is a violation of s 8(1). Even if it does bear a rational connection, it might nevertheless amount to discrimination.’40 (The reference to s 8 is to a provision of the interim Constitution, which accords substantially with s 9 of the Constitution.)

[25] I have been referred to little authority in point on the Equality Act. Counsel have however mentioned authority on the provisions of the Employment Equality Act. These two acts clearly complement each other, but do differ in certain respects. The Employment Equity Act is designed to promote equity in the workplace, and encompasses a wide variety of measures designed to achieve that purpose. The Equality Act, on the other hand, has the wider purpose of eliminating unfair discrimination in all other spheres of human activity. Importantly, the application of the Employment Equity Act is not driven by the constitutional dictate to diversify the judiciary, as is the Equality Act. It is beyond the scope of this judgment to analyse the differences in the wording of the two enactments. Suffice it to say that the two acts are sufficiently close for authority on the one to be of assistance in the interpretation and application of the other, especially in the present case which contains elements of employment. But care must be exercised for the reason that the very fact of the closeness of the two enactments may cause authority on the one to be subtly misleading in the construction and application of the other. The guidelines set out above for the application of the Equity Act41 are clear and comprehensive. I therefore deem it unnecessary to embark upon a detailed analysis of the large body of authority on the Employment Equity Act in order to arrive at a just decision in the present matter, but will where appropriate have regard to analogous authority on that act.

THE CHAPTER 3 ENQUIRY

[26] As the first step in the s 13 procedure, the complainant must make out a prima facie case of discrimination.42 In that regard, counsel for the respondent concede that the shortlist formula differentiated between the complainant and the other applicants on the grounds of race and gender, but submit that this did not amount to discrimination. They contend that the criteria used in the shortlist selection did not exclude the complainant in that there was no prohibition therein in respect of race or gender. They refer to Constitutional Court authority43 which holds that it must be accepted that in order to govern a country efficiently and to harmonise the interests of all its people for the common good, it is essential to regulate the affairs of its inhabitants extensively. It is impossible to do so, they submit, without differentiation and without classifications which treat people differently and which impact on people differently.

[27] Counsel, with respect, underestimate the effect of the measure. In terms of the Equity Act, ‘discrimination’ means any act ‘including a policy or practice which directly or indirectly imposes a disadvantage or withholds a benefit from any person on one or more of the prohibited grounds’, which grounds include ‘race’ and ‘gender’.44 The shortlisting criteria adopted by the committee imposed a disadvantage on the complainant in the selection process and effectively withheld from him the benefit of being considered for the posts of regional court magistrate, Port Elizabeth. This disadvantage was based on race and gender. Clearly therefore, the shortlisting criteria applied by the committee amounted to discrimination by the respondents against the complainant. It is not in dispute that this act of discrimination did take place. Accordingly, in terms of s 13 of the Act, the measure is unfair unless the respondents prove that it was fair.45

[28] The respondents justify the discrimination in the shortlisting process on the grounds that the Constitution enjoins them to have regard to the racial and gender composition of South Africa when judicial officers are being appointed.46 There is unarguably a need for such a policy. It is generally accepted that for the judiciary to achieve credibility in the eyes of the public, it must be diversified. Transformation of the bench will, in addition, have the effect of promoting restorative affirmative action.47

[29] It is clear from the affidavit of the commission’s chief personnel officer48 that there was a real need for the racial and gender diversification of the Port Elizabeth regional court bench. She states: ‘During

2002 the racial and gender breakdown of the Regional Court Magistrates in Port Elizabeth was as follows: 13 posts of which 2 were vacant (the posts in question) 1 was filled by a White female, one was filled by an African male and 9 were filled by White Males.’ In these circumstances, the commission’s effort to achieve its goal of diversification in Port Elizabeth by means of discrimination, is unimpeachable. The question that arises is whether the discrimination against the complainant applied by the appointments committee in pursuit of that goal, was unfair.

[30] The shortlist49 was so constructed that the maximum which a white male could score was 5 points (3 for experience and 2 for qualifications). (Counsel for the applicant points out that realistically speaking, the overwhelming majority of aspirant regional magistrates do not have the degree of LLM but generally only LLB.) The maximum number of points which a white male with the lesser degree could accumulate, was 4. The minimum that other applicants could achieve was: black male 5 (1 for experience, 1 for qualifications and 3 for race);

white female 5 (1 for experience, 1 for qualifications and 3 for gender); and black female 8 (1 for experience, 1 for qualifications, 3 for race and 3 for gender). The maximum points that black males and white females could score was 8 (3 for experience, 2 for qualifications and 3 for race or gender). The maximum that a black female could score was 11 (3 for experience, 2 for qualifications, 3 for race and 3 for gender). The resultant position can be summarised as follows:

white males with maximum points would score the same as black males and white females with minimum points;

white males with only an LLB degree (presumably the majority of the prospective candidates) would automatically be outscored by all other categories of candidates;

black males and white females with maximum points would score the same as black females with minimum points;

black women with the minimum points would outscore all other

categories of candidates with only an LLB degree.

[31] In considering the fairness of the discriminatory measure, the formula applied for Port Elizabeth must not be viewed in isolation, but within the framework of the policy adopted countrywide by the commission. The chief personnel officer of the commission50 declares in such regard: ‘A rigid set of criteria was not applied across the board in respect of all offices. The composition in relation to gender, race and the vacant post in each office and regional division had to be taken into account.’ In amplification of this statement, the respondents’ legal representatives undertook to furnish the court with the shortlisting criteria set for the other advertised posts for regional court magistrates elsewhere in the Republic. Some time thereafter, I was furnished with documents in such regard.

[32] That documentation reflects the following:

(a) In the Western Cape the composition of the regional court bench was: African,

male 1 and female 0; Coloured, male 4 and female 0; Asian, male 0 and female 1; White, male 16 and female 5. The shortlisting points allocated in respect of experience and qualifications were the same as for Port Elizabeth (as was the case in all the other positions with which I deal hereinafter). The points awarded for race and gender were as follows:

‘Race Gender

African = 3 Female = 3

Coloured / Indian = 2 Male = 1’

White = 1

(b) In Durban the bench composition was: African, male 12 and female 1; Coloured, male 0 and female 0; Indian, male 1 and female 6; White, male 18 and female 5. Composite points for race and gender were allocated on the following basis: ‘Coloured female = 4

Coloured male / Indian male / African female = 3

White female / Indian female = 2

African male / White male = 1.’

(c) In the case of Molopo, I was not furnished with the composition of the bench. Points were allocated as follows:

‘Race

NOT SCORED ON RACE

Gender

Female = 2 Male = 0’

(d) In the case of Thabamoopo, composite points for race and gender were allocated on the following basis:

‘White male = 2 All other = 0’

[33] The picture that emerges is that the formulae for shortlisting in the different districts varied, and varied significantly. There was obvious correlation between the composition of the various benches and the points allocated on the basis of race and gender in respect of each post. The formula was in each case broadly tailored to promote the need for the diversification of the particular regional court bench: for example, in one instance (Thabamoopo) white males were favoured over all other candidates.51 Apparently this discrimination constituted largely the commission’s policy of complying with the constitutional dictate to diversify the judiciary.52 53 There was, in that policy, a connection between the discrimination and the purpose thereof,54 namely the balanced racial and gender composition of the different regional courts. This general policy of the commission, although not beyond criticism, cannot - I think - be described as haphazard or random.55 The discrimination had a legitimate purpose.56

[34] It is relevant that the complainant, as a white male, does not belong to a group that suffered past patterns of disadvantage.57 It is inevitable that affirmative action will in some instances operate to the disadvantage of such persons. That consequence would no doubt have been within the contemplation of the drafters of the Constitution when they framed the affirmative action clause contained in s 9(2). This did not however place affirmative action measures beyond judicial scrutiny. Persons adversely affected by such action are not without protection under the Constitution.58

[35] It is the complainant’s contention that in the case of Port Elizabeth, the application of the shortlisting formula in effect negated experience where a white male was in competition with other categories of candidates. In a broad sweep, it can be said that persons belonging to the category of the complainant gained experience in the past at the expense of categories of persons disadvantaged on the basis of race and gender. To overemphasize experience, or even to apply it as a rigid comparative criteria, would then be to perpetuate past discrimination. Such discrimination has had ongoing negative consequences in relation to the racial and gender composition of the courts, including the Port Elizabeth regional courts. Unless remedied those consequences may continue for a substantial time, even indefinitely. These are cogent considerations operating in favour of the remedial discrimination inherent in the shortlisting procedure. The court must nevertheless ask itself ‘whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned’.59 In the present situation, such a criterion is experience.

[36] Regional court magistrates bear a heavy workload and endure a great deal of stress in their unremitting and onerous task of presiding daily in trials. Their task demands insight and maturity. There is here no substitute for experience. Furthermore, only suitable experience will indicate whether a person has the capacity to cope with the work and the necessary qualities of character and personality to persevere in the post day in and day out over years. Appointing candidates who have insufficient legal experience will subject those persons to considerable stress, which could detract from their performance. They could find it difficult to stay the course. The regional court bench has an important position in the administration of justice. It is of cardinal importance that public confidence in the criminal justice system be fostered and maintained by appointment to regional courts of suitably qualified and sufficiently experienced persons.

[37] The previous experience of the candidates for the Port Elizabeth posts was considered as follows in the two stage procedure devised by the commission. The score sheets for the shortlisting stage allowed for experience under two separate heads, i.e. ‘Experience as Magistrate’ and ‘Experience in other Legal Occupation’.60 Only the one or the other was to be scored, however;61 in the actual event, only the former counted. But as a result of the way that the points were allocated under the various heads, such experience in effect counted for nought in the case of a white male competing against any other category of persons. In the second stage, in order to establish whether the shortlisted candidates had the minimum requirement of seven years’ post-university experience, the commission had regard also to their experience other than that of magistrate.62 At no stage was the complainant’s experience as district court magistrate of any consequence in the selection process. Clearly, no equitable assessment of the merits of the complainant’s application was possible without proper consideration of his previous experience as against that of his competitors for the posts.

[38] Experience was however not the only relevant consideration negated in the shortlisting procedure. By basing selection solely on the shortlisting scores, the committee failed to have regard to the candidates’ profiles and curricula vitae, which according to the commission’s secretary were to serve as guidelines for the shortlisting and interviewing of candidates.63 The committee, moreover, took no account of certain, important, criteria that were to be used by the commission in the final selection candidates, mentioned by the secretary of the commission,64 These were: legal knowledge, leadership and management skills, language proficiency, communication capability, vision, potential, commitment to transformation and development, integrity, social context, sensitivity and interpersonal relationship. The narrow shortlisting formula, by ignoring these criteria, was not geared to identify the candidates best suited for final selection by the commission. The first stage in the selection process was therefore inconsistent with the second stage of the procedure. This not only prejudiced such candidates, but also was not in the interests of society which requires that the regional courts function at the highest achievable level of efficiency. 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 as responsible and important as that of regional magistrate. Such a policy is irrational within its own terms and objectives.

[39] It is the essence of the complainant’s case that he was unfairly discriminated against in that the shortlisting criteria constituted for him an absolute barrier to being considered on merit for the posts. The concept of an absolute barrier based on race or gender has received the attention of the labour courts and of legal writers in the sphere of employment law. Section 15 of the Employment Equity Act provides in relation to ‘(a)ffirmative action measures’, in ss (3) thereof, that such measures include preferential treatment but exclude quotas; and, in ss (4), that ‘nothing in this section requires a designated employer to take any decision concerning an employment policy or practice that would establish an absolute barrier to the prospective or continued employment or advancement of people who are not from designated groups’. While the act, by these provisions, does not prohibit such measures outright, it absolves employers from imposing absolute barriers against non-favoured groups. In a case before the Labour Court, 65 66 it was found that a particular measure implemented by the South African Police Service constituted such a barrier in that it presented white male members of the force with ‘an insurmountable obstacle’ to promotion; as such it constituted an absolute barrier.

The measure therefore offended the employment equity plan67 of the SAPS which stated that ‘no employment policy or practice will be established as an absolute barrier to prospective or continued employment or advancement of persons not from designated groups’.

[40] Pretorius, Klinck and Ngwena68 describe69 as ‘the most drastic form of preferential treatment’ those employment policies or programmes which afford absolute preference to members of designated groups who meet the minimum job requirements. ‘The effect of such an approach is’, they say, ‘that selection is done irrespective of how the preferred designated group candidate compares with competitors from non-designated groups and sometimes irrespective of how the decision affects the excluded non-designated group members personally, as well as the specific operational needs of the employer or the special requirements of the job’. The learned authors express the view that ‘such measures would not be compatible with the variety of factors that need to be taken into account for an employment decision to meet the constitutional requirements of fairness and proportionality’. ‘Fairness’, as they put it, ‘depends on the cumulative effect of all relevant concerns, including the extent of the impact of the measure on the rights and interests of the complainant’. ‘Proportionality’, they say, ‘requires, by definition, the balance of competing interests’. ‘Affording automatic preferences for designated group members eliminates the possibility of affirmative action from being tested in respect of its fairness and proportionality and elevates the affirmative action objective to the position of sole requirement for validity’.70

[41] The effect of the committee’s shortlisting formula was to raise an insurmountable obstacle for the complainant. It was therefore an absolute barrier to his appointment to the post of regional magistrate, Port Elizabeth. The formula 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 described by Pretorius et al, above. It is therefore subject to the valid criticism levelled at such measures by the learned authors.

[42] The effect of the formula was to frustrate the complainant’s ambition for advancement in his chosen career, with denial to him of the concomitant benefits of heightened prestige and increased income. The discrimination was therefore serious in its nature and extent.71 72 And the more detrimental the nature of the discrimination upon the interest of the affected party, the more likely it is to be unfair.

In as much as the discrimination was built into a departmental policy, it was systemic in nature.73

[43] The respondents, not being subject to the Employment Equity Act,74 are not obliged to prepare and implement an employment equity plan as contemplated in that act.75 Nevertheless, one would expect it of them to set an example and have some formal and comprehensive affirmative action plan, which – in an open democratic society – would be available to all interested parties. Only then would candidates for the posts of judicial officers know where they stand. Instead, various officials have here outlined the respondents’ policy in regard to the appointment of regional magistrates. They have done so in broad and vague terms. The specifics of the shortlisting criteria for the various posts had to gleaned from documentation supplied by the respondents’ legal representatives,76 from which the court had to piece together the implications of the departmental policy.77 That policy is rudimentary and unsatisfactory, to say the least.

CONCLUSION AND ORDER

[44] I find, for the above reasons, that the respondents have failed to prove that the discrimination perpetrated against the complainant, was fair. This finding means that the sole issue placed before the court in the pre-trial agreement,78 is decided in favour of the complainant. However, the orders that, in terms of that agreement, would flow from that finding are in my view too widely stated, and need to be modified and limited.

[45] In the result, the complaint is upheld and the following orders issue:

(a) The criteria utilized in selecting suitable candidates to be shortlisted for the posts of regional court magistrate, Port Elizabeth, are set aside.

(b) The first and second respondents shall re-advertise the positions for regional court magistrate, Port Elizabeth.

(c) The respondents shall pay the applicant’s costs.

_________________________

A.R. ERASMUS

JUDGE OF THE HIGH COURT

DATE:

1 Section 2.

2 Section 4.

3 Para (a) of section 4.

4 Para (g) of section 4.

5 Section 10.

6 Section 6(1)(b).

7 Section 20.

8 Date of commencement: 16 June 2003.

9 Regulation 6 of THE REGULATIONS RELATING TO THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION, published in GN R764 in GG23065 of 13 June 2003, as amended by GN 563 in GG 26316 of 30 April 2004.

10 Annexure A3 to the complainant’s founding affidavit referred to in the written agreement paras 1 and 3, para [3] above.

10 Annexure A3 to the complainant’s founding affidavit referred to in the written agreement paras 1 and

3, para [3] above.

11 Constitution of the Republic of South Africa Act 108 of 1996.

12 Established i.t.o s 6 of the Magistrates Act, para [1] above.

13 See para [39] below.

14 Paragraph [7] above.

15 Kentridge et al Constitutional Law of South Africa at p 14-1.

16 See President of the Republic of South Africa and another v Hugo 1997 (4) SA 1 (CC) at para 74 per Kriegler J; Prinsloo and another v Van der Linde and another 1997 (3) SA 1012 (CC) at paras 15 to 34.

16 See President of the Republic of South Africa and another v Hugo 1997 (4) SA 1 (CC) at para 74 per

Kriegler J; Prinsloo and another v Van der Linde and another 1997 (3) SA 1012 (CC) at paras 15 to

34.

17 Section 7(1) of the Constitution.

18 See Van Rooyen and others v The State and others 2002 (5) SA 246 (CC) at para 139.

19 Quoted para [12] above.

20 Section 1.

21 Section 2.

22 Paragraph (b)(iii) of s 2.

23 Paragraph (c) of s 2.

24 Paragraph (g) of s 2.

25 Section 3 (1)(a).

26 Section 4 (2).

27 Section 7.

28 Set out in para [15] above.

29 Section 9(4) of the Constitution, see paras [12] and [13] above.

30 See Stowman v Minister of Safety and Security and others 2002 (3) SA 468 (T) at 482G-I.

31 See Johan de Waal, Iain Currie and Gerhard Erasmus The Bill of Rights Handbook 4th ed at p 223.

32 This conclusion accords with the construction placed on s 6 (2) of the Employment Equity Act which states that it is not unfair to take affirmative action measures consistent with the purposes of the act. Nevertheless, in as much as such measures must comply with the Constitution, they may be attacked on various grounds, such as their arbitrariness or because of their restriction of rights, but most notably because of their discriminatory effect on non-designated groups.

33 JL Pretorius, ME Klinck and CG Ngwena Employment Equity Law p 9-3.

34 See paras [9] and [10] above.

35 For a full and well-reasoned discussion of this question, see Etienne Mureinik ‘A Bridge to where? Introducing the Interim Bill of Rights’ South African Journal on Human Rights (1994) vol 10 at p 3.

35 For a full and well-reasoned discussion of this question, see Etienne Mureinik ‘A Bridge to where?

Introducing the Interim Bill of Rights’ South African Journal on Human Rights (1994) vol 10 at p 3.

36 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) at para 16.

36 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) at para

16.

37 Brink v Kitshoff NO [1996] ZACC 9; 1996 (4) SA 197 (CC) at para 42, per O’Regan J.

38 Paragraph [19].

39 Per Goldstone J in The President of the Republic of South Africa and another v Hugo 1997 (4) SA 1 (CC) at para 41.

39 Per Goldstone J in The President of the Republic of South Africa and another v Hugo 1997 (4) SA 1

(CC) at para 41.

40 Harsken v Lane NO [1997] ZACC 12; 1998 (1) SA 300 (CC) at para 54.

41 Paragraphs [22] to [24] above.

42 Paragraph [21] above.

43 Prinsloo v Van der Linde above n 16, at paras 17 to 24.

44 Section 1.

45 See para [21] above.

46 See para [9] above.

47 See para [20] above.

48 Paragraph [11] above.

49 See para [5] above.

50 Paragraph [11] above.

51 See para [32] above.

52 Section 174(2) of the Constitution; paragraph [9] above.

53 Section 14(3)(i)(ii) of the Act, quoted para [22] above.

54 See para [25] above.

55 cf: Public Servants Association of South Africa and others v Minister of Justice and others 1997 (3) SA 925 (T).

55 cf: Public Servants Association of South Africa and others v Minister of Justice and others 1997 (3)

SA 925 (T).

56 Paragraph (f) of s 14(3) of the Act, quoted in para [22] above.

57 Paragraph (c) s 14(3) of the Act, quoted in para [22] above.

58 See paras [16] - [17] above.

59 See paragraph (c) of s 14(2) of the Act, quoted para [22] above.

60 See the shortlist in para [5] above.

61 See para [6] above.

62 See para [11] above.

63 See

para [10] above.

64 See para [10] above.

65 Coetzer & others v Minister of Safety & Security & another (2003) 24 ILJ 163 (LC).

66 See to Biggs v Rand Water (2003) 24 ILJ 1917 (LAC).

67 See s 20 of the Employment Equity Act.

69 At p 9-59.

70 See Kimberley Girls’ High School v Head of Department of Education, Northern Cape Province and others [2005] 1 All SA 360 (NC).

71 See para (d) of s 14(3) quoted para [22] above.

72 See Pretorius et al, referred to in n 33 above, p 9-28.

73 See para (e) of s 14 (3) quoted para [22] above.

74 See para [13] above.

75 Section 20.

76 "> 76 See para [31] above.

76 See para [31] above.

77 See para [32]-[33] above.

78 See para [3] above.