Lamola appoints snubbed white magistrate after race promotion equality court battle

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Martin Kroukamp (Photo: Sarel van der Walt)
Martin Kroukamp (Photo: Sarel van der Walt)
  • Minister of Justice and Correctional Services Ronald Lamola has appointed a white man as a senior magistrate after former minister Jeff Radebe denied him the position 10 years ago.
  • Radebe refused to appoint Martin Kroukamp despite the Magistrate Commission recommending him for the position.
  • The Equality Court recently ruled that Radebe had unfairly discriminated against Kroukamp by denying him the position.

Minister of Justice and Correctional Services Ronald Lamola has signed off the appointment of Martin Kroukamp as a Senior Magistrate after the Equality Court ruled that former minister Jeff Radebe had unfairly discriminated against him by denying him the position.

Solidarity, the trade union that represented Kroukamp, said on Thursday that Lamola had finally signed off on Kroukamp's appointment after a nearly decade long battle with Radebe, who was the minister of justice and correctional services from 2009 to 2014.

In December 2013, Kroukamp launched proceedings against Radebe after the latter refused to appoint him as a senior magistrate at the Alberton Magistrate's Court in 2011.

This was after the Magistrate's Commission had recommended him for the post after he interviewed for the position. The vacancy was one of 23 vacancies across the country that Radebe needed to fill. 

Equality Court Judge Joseph Raulinga stated in his judgment: "One is alive to the fact that the Magistrates Commission recommended to the minister that the first complainant be appointed to the position of senior magistrate at Alberton.

"According to the recommendation, the committee that conducted the interviews had unanimously resolved to recommend the first complainant as the only suitable candidate for the position, after consideration of all relevant factors."

READ | Radebe asks court to strike racial discrimination case off the roll

He also said the Commission had noted that Kroukamp's promotion would not disturb the race and gender balance at the (then) Alberton office. Raulinga said recommendations were sent to Radebe, he requested further information from the Commission to make a better decision.

"The Commission responded to the request and explained that there was not enough pool to draw candidates for appointment into the various posts; hence they recommended only one name for each post.

"In 2011, the minister wrote to the Commission again and 'questioned how the Magistrates Commission could contend that there was a pursuit of constitutional ideals through the recommendations'. In this regard, he placed particular emphasis on the recommendation of white males for three of the positions."

"I pause to reiterate that, despite the minister's acceptance of the explanation for the recommendation of only one candidate per post, he repeatedly reverted to his explanation that he could not make an appointment based on only one recommendation, although he offered no explanation competent in law for why this was so," Raulinga said. 

According to Raulinga, Radebe had - after a back and forth - declined to make any appointments to fill the 23 vacancies saying that the pool of candidates was inadequate in achieving transformation in the judiciary. 

"The minister considered that this was more significant especially at the level of senior magistrate where these vacancies occur, as it is at the management echelon of the judiciary where we still experience acute underrepresentation of black and woman judicial officers," said Raulinga.

ALSO READ | Is there any place for white justices at the ConCourt? The JSC doesn’t seem to think so

He then advised the Commission to re-advertise the positions, which prompted Kroukamp to approach the courts. Kroukamp argued that the minister's decision not to appoint him constitutes unfair discrimination on the basis of race and or gender in contravention of sections 6, 7, and 8 of the Equality Act.

In response, counsel for the Department of Justice maintained that the minister decided not to fill the posts because there was an insufficient pool of candidates.

Raulinga said:

We now know that the minister came and testified. In my view, the minister was clutching at straws. He could not convincingly explain why he steered away from all the responses the Commission gave to him through the exchange of a number of correspondence which offered him additional information. He remained fixated to his explanation that only one recommendation per post and the limited pool of available candidates was the reason why the first complainant and other candidates were not appointed.

"The position of the minister, in this case, seems to be that no matter how hard the Magistrates Commission tried to explain the suitability of the first complainant to be appointed as senior magistrate at Alberton, he was not prepared to appoint a white male to that post.

"His position seems to be that a white male cannot be recommended for an appointment, given the constitutional injunctions. Nothing in section 174(2) of the Constitution prohibits the recommendation, or appointment, of a white male," he added. 

Raulinga ordered that Kroupkamp be immediately appointed to the position of senior magistrate for the district of Alberton, Palm Ridge in Katlehong.

ALSO READ | 'You are a white male... that's the elephant in the room' - JSC unmoved by ConCourt interview reruns

Solidarity's head of legal matters, Anton van der Bijl, said that Kroukamp's matter would pave way for future litigation regarding appointments by state departments.

"Kroukamp was appointed in an acting capacity in this position for a decade as the department refused point-blank to appoint him permanently because of the colour of his skin."

Van der Bijlsaid continued:

It is absurd that race dictates appointments. Solidarity regards this ruling and appointment as a victory against this type of discrimination, and we will continue to fight for justice to be done for similar cases as well.

Chrispin Phiri, who is the spokesperson for the ministry, confirmed that "minister Lamola has given effect to direction of the Equality Court to correct the decision of the erstwhile minister (Radebe) by ensuring that the appointment for the position of Senior Magistrate for the district Alberton (Palm Ridge, Katlehong) is in line with the recommendation of the Magistrate Commission."

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