The role of the appointments committee in the case of the magistrate AK Amos v Minister of Justice
When appointing a candidate to head a Magistrates Court station, what should the Magistrates Commission look for? What qualities should inform their choice of candidate? Legal qualifications? Experience as a jurist? Management and leadership? Or all of the above? These are some of the vexing issues that came up in the case of Magistrate AK Amos v Minister of Justice [Read more here.]
The general process for appointing magistrates
The Magistrates Commission plays a central role in the appointment of magistrates. Established in terms of Section 2 of the Magistrates Act, the Commission has the duty to ensure that the appointment of magistrates takes place without favour or prejudice, and that the applicable laws and administrative directions in connection with such action are applied uniformly and correctly. The Commission also has the duty to advise the Minister of Justice, or make recommendations to the Minister of Justice regarding the requirements for appointment of judicial officers in the respective lower courts.
For the proper performance of its function in relation to the appointment of magistrates, the Commission established a nine member Appointments Committee (the Committee), which is comprised of two magistrates, a legal practitioner, the head of SAJEI, a law teacher, a public service expert and three members of parliament.
The Appointments Committee ensures that vacancies in the lower courts are publicly advertised, and that shortlists of candidates are compiled. The Committee’s most pivotal function is the oversight and execution of public interviews for these shortlisted candidates and, following deliberations, the recommendation of appointable candidates to the full Commission. After considering the Committee’s recommendation, the Commission in turn recommends the appointable candidates to the Minister of Justice.
The Committee’s central role in the appointment process dictates that it should have criteria it applies when interviewing candidates for permanent appointment as magistrates. The Committee’s criteria are contained in the Commission’s policy documents, and are determined by the nature of the vacancy that a candidate is being interviewed for, and whether the candidate is an entry-level magistrate, senior magistrate, head of office (HOO), regional court magistrate or regional court president. (Read more here.)
In the case of Magistrate AK Amos v The Minister of Justice, the Western Cape High Court considered, among other things, the applicable criteria for the appointment of a HOO magistrate, including the procedure the Committee must follow when considering appointments of judicial officers generally.
We turn to this now…
The facts of Magistrate AK Amos v The Minister of Justice
In 2016 the Commission published adverts calling for applicants for magistrates vacancies throughout the country. Included was a position of the HOO of the Stellenbosch Magistrate’s Court, Western Cape. Four black women and one black man applied, were shortlisted and were interviewed for the position. The Commission recommended three of the black female candidates for appointment to the Minister of Justice. The Minister of Justice proceeded to appoint the third black female respondent in the case.
Applicant Amos, was dissatisfied with the appointment of the recommended black woman, and launched a review application, seeking an order that the appointment of the third respondent be reviewed and set aside, and that he be substituted in the place of the third respondent.
Amos based his review application on three factors:
- The Committee was not quorate when the interviews of all five candidates were conducted, and that therefore the appointment of the third respondent was invalid. The first and second respondents did not deny this.
- Amos alleged that the other candidates should have been disqualified and should never have been shortlisted, because their application documents were not compliant with the requirements of the Commission. The first and second respondents conceded to this allegation as well.
- The Chief Magistrate of Cape Town was biased against him and unduly influenced the other members of the Committee to exclude him as a candidate worth recommending for permanent appointment to the HOO position. From the transcript of the proceedings the court could not find any indication of bias on the part of the Chief Magistrate or any of the other members of the Committee.
Considering the concessions by the first and second respondent, the court had only one issue to decide, and that was whether it should order that Amos be substituted in the place of the third respondent, or whether the matter should be remitted to the Commission for the post to be re-advertised and for fresh interviews conducted.
The criteria for the appointment of magistrates, and in fact all judicial officers, goes far beyond the requirements of section 174(2).
The criteria for a HOO position
In reaching its decision, the court noted the importance of the consideration of the position for which the candidates were being interviewed. As noted above, the candidates were interviewed for a HOO position, which is not an ordinary magisterial position. A candidate being considered for a HOO position must be suitably qualified for the position, must have the necessary personal and professional attributes required of a head of office. An incumbent of a HOO position carries an immense amount of responsibility, which requires the incumbent to be able to manage and interact successfully with colleagues and staff, as well as members of the police and the public. An incumbent of a HOO position must have the necessary managerial skills and personal attributes to manage a number of courts and judicial officers and support staff. The incumbent must also be someone who is able to inspire colleagues of differing abilities and levels of seniority, as well as members of staff and the NPA. The incumbent must also enjoy the respect of colleagues and members of staff, including the police and the NPA, failing which the office and the courts which fall under it, will not be able to function properly.
The court further noted that management and control of the administration of justice in the office, as well as within the area of the court’s jurisdiction, is the primary objective for the HOO position. The incumbent must be able to provide guidance to serving magistrates and to evaluate acting magistrates.
All of the above factors are the specific requirements for a HOO position. In addition to the specific requirements, it is a general criterion that the HOO candidate’s ‘vision’, commitment to transformation and ‘development’, their ‘social context sensitivity’, their integrity and the status of their interpersonal relationships be considered, when they are being interviewed by the Committee.
The court rightfully noted that the selection of a Head of Office personnel is a delicate matter because it involves the careful weighing-up and consideration of several factors, as noted above. When seeking to appoint a Head of Office the interviewing panel should not only consider a candidate’s formal qualifications, legal knowledge, and experience. A lot more than that is required. Factors to be considered by the interviewing panel will also differ, depending on the needs of the office that the interview relates to.
Remittal or substitution of the matter?
Although the court set out the criteria that should be considered by the Committee in HOO interviews, the court could not apply these factors in the case. The court formed the view that determining whether Amos should be appointed as the HOO for the Stellenbosch magistrates court, could only be done by the Committee, with the candidate’s immediate supervisor. It would have been unfair towards the other candidates if Amos was awarded the position by default, rather than by merit. As a result, the court, remitted the matter back to the Commission instead of substituting Amos in the place of the third respondent.
Going far beyond the requirements of section 174(2)
There are three important factors to be noted in the Amos case, specifically regarding the Commission and the Committee in relation to the appointment of magistrates and the interviewing process. First, the Commission must always ensure that shortlisted candidates have met the stipulated requirements of the Commission, failing which candidates must not be shortlisted. Second, the Committee currently consists of nine commissioners, including the chairperson. The Committee cannot convene and interview candidates unless it is quorate. The Committee should have the necessary number of Commissioners present in order for interviews to be conducted and for deliberations to take place. Third, when interviewing candidates, the Committee must consider the general criteria (outlined above). The Committee must also consider the needs of the office that candidates are interviewed for. The criteria for the appointment of magistrates, and in fact all judicial officers, goes far beyond the requirements of section 174(2).