Please note that this article is an extract from the Legal Resource Centre’s Annual Report 2012
The LRC was instructed by South African National Council for the Blind and the League of Friends for the Blind to apply for their admission as amicus curiae in the case of Ms Parvathi Singh, a partially blind acting magistrate. Ms Singh applied for a permanent magistrate position in various courts around the country but was not shortlisted for any of the positions. She was informed that the reason for the decision not to shortlist was “an over-representation of Indian females countrywide”.
She filed a complaint for unfair discrimination in the Pretoria Equality Court on the basis that her disability was not taken into consideration in the application process. The LRC felt that this case was important in establishing a policy that includes the consideration of disability in judicial appointments so as to prevent unfair discrimination and promote equality. This will also contribute to the diversity of the judiciary and its ability to reflect South African society.
The LRC argued that the appointment policy for magistrates was unconstitutional in that a proper interpretation of the Constitution required South African judicial appointment policies to mention disability as a consideration for appointment. We also argued that the Commission’s approach to disability in the appointment of magistrates is, as it exists, insufficient to fulfil its obligations under the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000.
In the light of South Africa’s constitutional obligation to consider international law when interpreting the Bill of Rights, the LRC further contended that, in accordance with the Convention on the Rights of Persons with Disabilities, the government is obliged to take active steps to promote the representation of people with disabilities in the magistrates’ profession.
The Equality Court ordered the Magistrate’s Commission, which oversees the recruitment process, to revise its criteria for the appointment of magistrates. The new criteria must ‘clearly reflect’ that race, gender and disability will be taken into account when shortlisting candidates. The judge also found that Ms Singh was unfairly discriminated against, as her ‘gender and/or disability was not appropriately considered’.