THE selection criteria for the appointment of magistrates were unconstitutional, the North Gauteng High Court heard yesterday.

If this argument — made by the South African National Council for the Blind and the League of Friends for the Blind, as friends of the court — is successful, it would have far-reaching implications for the way magistrates and judges are appointed in future.

Acting magistrate Parvathi Singh approached the Pretoria Equality Court, saying she had been unfairly discriminated against on the grounds of disability when she was not short-listed for permanent appointment as a magistrate. She said she was overlooked because she had a visual impairment, making it impossible to get a driver's licence, a requirement for appointment.

She also challenged the "rigid and inflexible" way the Magistrates Commission, which makes recommendations to the justice minister on whom to appoint, had applied its race and gender criteria.

She said the commission's view that Indians were over-represented in the magistrate's courts had constituted an "absolute bar" to her appointment. But Department of Justice officials said her nonappointment had nothing to do with her disability and was really about her experience. While she was appropriately qualified, she was "not necessarily outstanding", said Nicolette van Zyl, of the Magistrates Commission. They also denied applying criteria rigidly.

In heads of argument, counsel for the friends of the court, Tembeka Ngcukaitobi, said section 174(2) of the constitution — which says the need for the judiciary to broadly reflect the South African population in terms of race and gender must be considered when appointing judicial officers — had to be read purposively and together with section 9(2) of the constitution. Section 9(2) requires steps to be taken to promote categories of people disadvantaged by unfair discrimination.

Mr Ngcukaitobi said that, when these two sections were read together, the constitution required a selection policy that explicitly referred to disability.

The case was scheduled to be heard yesterday. But it was postponed until next month after counsel for the government, Jabu Matepe, said the friends of the court had changed the nature of the case.

Franny Rabkin

Business Day.