About 5% of SA's population is disabled. Of the 1666 magistrates in SA, only 16 are disabled, less than 1%. Of these, nine were disabled when they were appointed, the court heard yesterday.

When partially blind acting magistrate Parvathi Singh was not short-listed for magisterial appointment, she went to court.

She said she had been unfairly discriminated against because the Magistrates Commission, which makes recommendations to the justice minister, had not considered her disability in her favour and its criteria did not require it to. She said she had also been unfairly discriminated against on the grounds of race and gender.

When she asked why she had not been short-listed, she was told there was an over-representation of Indian women in the magistracy. This was a "rigid and inflexible" approach by the commission and constituted an impermissible, "absolute bar" to her appointment, her counsel, Peter Hathorn, said.

Ms Singh was backed up by friends of the court, the South African National Council for the Blind and the League of Friends for the Blind. Their counsel, Tembeka Ngcukaitobi, argued that to pass constitutional muster, the written policy for the appointment of magistrates needed to specifically mention disability. He said the text of section 174(2) of the constitution, which says race and gender need to be considered when appointing judicial officers, did not exclude the commission from looking at other forms of historic disadvantage. And when interpreted in the context of the constitution as a whole, section 174(2) actually required the commission to consider disability.

Mr Ngcukaitobi said that in the Promotion of Equality and Prevention of Unfair Discrimination Act, the legislature itself had elevated race, gender and disability as particularly "pernicious and prevalent" forms of historical discrimination, he said.

Counsel for the state and the commission, Jabu Motepe, argued that the commission did consider disability in a candidate's favour, even if it was not specifically mentioned in the policy. He gave examples which he said countered the argument that the commission was rigid and inflexible on race and gender, as well as examples of appointments where disability had been considered.

But these were dismissed by Mr Ngcukaitobi. He said two examples where the commission had considered disability "can't be taken seriously" to show that the government was doing all it can.

Mr Motepe said the state "accepts that more can be done", but that the process was more difficult in practice than in principle. "What happens when you have a disabled white male and an African female (applying for a post) in an office where African females are underrepresented?" He said in those circumstances, the commission would be right to appoint the African female.

Judgment was reserved.

Franny Rabkin

Business Day