19 August 2021
Illustration: Lisa Nelson
Former Minister of Justice Jeff Radebe was fixated with race when he refused to appoint a white male magistrate to a senior position a decade ago, a judge found this week.
Joseph Raulinga, sitting in the Gauteng Equality Court, has ordered that Martin Kroukamp be immediately appointed as Senior Magistrate in Alberton, ruling that Radebe had unfairly discriminated against him.
Radebe, who was justice minister from 2009 to 2014, was forced to testify at the hearing after he lost his bid of “absolution” – that he had no case to answer to after Kroukamp presented his evidence.
Radebe said Kroukamp was one of 23 candidates for posts recommended by the Magistrate Commission at that time, and he had not filled any of them, so Kroukamp had not been discriminated against.
But the judge has ruled that he was “clutching at straws”, and it was clear he would not appoint a while male, even one that the Commission had found to be fit and proper.
“In my view, the reason given for the non-appointment was that he was a white male, albeit the language used was in veiled terms. This, in my view, amounts to unfair discrimination. The minister has failed to discharge the burden of showing that the discrimination in the present case was fair,” Judge Raulinga said.
The matter has its roots in an advertisement in November 2009 for 23 posts for senior positions. The Commission prepared a shortlist of candidates and did the interviews. Kroukamp, who is now 52, was recommended for the Alberton job and his name, along with others for the other vacant posts, were submitted to Radebe for appointment in February 2011.
But Radebe was not happy. He requested further information from the Commission, questioning why there was only one recommendation per post.
The Commission responded that there was not a large enough pool of candidates and, from the interview process, these were the only suitable candidates.
Judge Raulinga said the Commission had noted in its explanation that the race and gender balance at the Alberton office would not be disturbed by Kroukamp’s promotion and had given the minister a summary of the race and gender composition of senior management there at the time.
Broadly speaking, the 23 candidates reflected all races and genders in South Africa and Section 174 (2) of the Constitution regarding representivity had been complied with.
But Radebe queried why three white males had been recommended for appointment.
Again the Commission gave a comprehensive response, explaining that with regards to the Kroukamp post, four candidates had been interviewed and only two were suitable.
One, an Indian woman, had been given preference for another position in Johannesburg for operational reasons. Kroukamp, the Commission said, had “proven his leadership and effectiveness”.
The minister refused to make any appointments and told the Commission to re-advertise all of the positions.
In 2013, Kroukamp went to court and secured an interdict preventing Radebe from filling the position while he litigated in the Equality Court.
The case before Judge Raulinga finally began in 2017. Kroukamp argued that the decision by the minister, and his preoccupation with race, flew in the face of the requirement that affirmative action must be applied in a situation sensitive manner, taking into account the qualities and attributes of the applicant.
Radebe, who gave evidence in December 2018, said there had been no discrimination, let alone unfair discrimination, because he did not appoint any of the candidates into the 23 posts.
This was because there was an insufficient pool of candidates, that the commission had only recommended one person for each post and this did not conform with the constitutional imperative of transformation of the judiciary.
Judge Raulinga said the minister could not convincingly explain “why he steered away from all the responses the commission gave to him”.
“The Minister ignored the advice of the commission that it had taken into account the Constitutional prescripts when it recommended Kroukamp for appointment … It seems to me that the minister focused on race and gender to the exclusion of his other qualities.
“This, in my view, amounts to unfair discrimination. The minister has a duty and the power to appoint any appropriately qualified, fit and proper person to the office of the magistrate.
“The commission consists of responsible members of the community and there is no reason to believe that its members will not discharge their duties.
“Once it is recognised that the commission fulfils the role of a constitutional check upon the decision-making powers of the Executive, then it must follow that the minister must have reasons competent in law for declining to follow its recommendations.
“The position here seems to be that no matter how hard the commission tried to explain the suitability of Kroukamp for the position, he was not prepared to appoint a white male to that post,” said Judge Raulinga.
“Since the dawn of democracy more black people have been appointed to judicial office. This has 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.”
“We may not become a united society and heal the divisions of the past if we apply the apartheid inequalities in reverse,” the Judge said.