North Gauteng High Court Judge Aubrey Ledwaba said the new criteria must "clearly reflect" that race, gender and disability will be taken into account when short-listing candidates.

He also ordered that partially blind acting magistrate Parvathi Singh was unfairly discriminated against as her "gender and/or disability was not appropriately considered" when the commission was short-listing candidates.

Judge Ledwaba made his order on Friday but a full judgment, setting out his reasoning, is still to be handed down.

Ms Singh went to the Equality Court when she was overlooked for appointment as a permanent magistrate. Her counsel, Peter Hathorn, argued she had been unfairly discriminated against, because the commission did not take her disability into account.

Friends of the court, the South African National Council for the Blind and the League of Friends for the Blind, argued that the appointment policy for magistrates was unconstitutional. Their counsel, Tembeka Ngcukaitobi, said a proper interpretation of the constitution required the policy to specifically mention disability as a consideration.

Jabu Motepe, counsel for the government and the Magistrates' Commission, had argued the commission did consider disability, even if its criteria did not specify this.

But Judge Ledwaba ordered that the application form should "clearly" ask an applicant to clearly disclose a disability.

He was concerned about the effect the court case — which had put on hold appointments for all 77 courts at which posts had been advertised — was having on the other applicants and the administration of justice.

Judge Ledwaba said the government could "immediately" appoint magistrates in the 51 courts Ms Singh had not applied for. But with the 11 courts where Ms Singh had applied, the commission had to reconsider those short-listed, and Ms Singh's application.

Franny Rabkin

Business Day