Pretoria - In A case where a white senior magistrate has been fighting for 12 years to obtain justice, a judge now says there is definitely space for competent white appointments.
Judge Joseph Raulinga, sitting in the Equality Court at the high court in Pretoria, said while transformation was still paramount to a diverse society, it was also evident that the country must continue to appoint white people to the judicial office.
“We cannot rule out the interest of non-designated groups out of the equation at the outset. Since the dawn of democracy, more black people have been appointed to the judicial office.
“This resulted in the black community gaining more confidence in the judiciary. Consequently, the white community will continue to have confidence in the judiciary when they see some of their own appointed as judicial officers,” the judge said.
The judgment followed years of legal wrangle by magistrate Martin Kroukamp, who was not appointed as senior magistrate in Alberton in 2009.
Then-justice minister Jeff Radebe refused to fill the post, as well as 23 other posts advertised at the time, for senior magistrates. This was in spite of the fact that the Magistrates’ Commission recommended Kroukamp for the position.
Radebe rejected his appointment based on his race and maintained over the years that he did not appoint anyone in the 23 posts because the commissions only recommended one candidate each.
The now former minister also gave evidence before the Equality Court to explain why he refused to appoint Kroukamp and other candidates.
Judge Raulinga said Radebe kept on hammering on the fact that he could not make any appointments on only one recommendation for each post, but he “offered no explanation in law for why this is so”.
The judge said the Magistrates Act did not provide that any number of candidates must be recommended to the minister to fill a post.
“It seems to me the minister is clutching at straws … In my view, the only other reason for the non-appointment of the complainant (Kroukamp) to the post of senior magistrate in Alberton is because he is not black and not a woman,” the judge said.
The Magistrates’ Commission ad- vertised 23 posts in 2009, and compiled a shortlist for magistrates across the country, including Kroukamp.
The candidates reflected broadly all races, including women.
Radebe found the information insufficient to make the appointments, and questioned the commission as to why only one candidate per post was recommended.
The commission said while they did interviews with numerous candidates, the pool for suitable candidates was simply too small, therefore they only recommended one candidate per post. The commission said although they had considered the fact that Kroukamp was a white male, he was the most suitable candidate for the Alberton position.
The commission also said the race balance at the Alberton office would not be affected by Kroukamp’s appointment, as that office was representative of all races and genders.
It further said all the recommendations made to the minister reflected all genders and races and that out of the 23 posts, only three whites were recommended.
According to the commission from all the candidates they had interviewed for the Alberton position, only an Indian female magistrate and Kroukamp were suitable.
The woman opted for another post in Joburg, which left Kroukamp, who had shown leadership and competence, the commission said.
Radebe at the end refused to make any appointment, as he felt it would not reflect transformation.
After the posts were advertised again, Kroukamp started his lengthy legal proceedings.
While Kroukamp said he understood that former disadvantaged groups should be prioritised, it was unfair discrimination to simply leave a post vacant because the only suitable candidate was white.
Judge Raulinga said the Equality Court prohibited unfair discrimination. He said listening to Radebe and watching him in the witness box, he was convinced the reasons given by Radebe not to appoint Kroukamp were contradictory to the Equality Act.
“We may not become an united society and heal the divisions of the past, if we apply the apartheid inequalities in reverse. Painful as the injustices of the past might have been, we must endure the pain and soldier on,” the judge said.
Kroukamp, who acted in the post since 2009, said he was grateful for the judgment and that his appointment would now be permanent.
Pretoria News