Martin Kroukamp has been acting senior magistrate in Alberton. He appeared in the Palace of Justice in Pretoria on Monday.Picture: Thobile Mathonsi / ANA

Pretoria - Former Justice and Constitutional Development Minister Jeff Radebe’s legal team insists that his reluctance to appoint magistrates as per the Magistrate Commission’s recommendations was due to limited candidates.

Advocate Dumisa Ntsebeza, SC, was defending Radebe’s decision not to appoint Alberton magistrate Martin Kroukamp and 22 others to vacant posts, despite the recommendations.

He told the Gauteng High Court, Pretoria, the sole principal reason Radebe, now Minister in the Presidency, had for not heeding the commission’s recommendations was simply because he was presented with only one candidate for each of the 23 vacancies available.

He said: “What the minister had an issue with, is that he was offered only one candidate per vacancy which put a limitation on his discretionary powers, where he had the responsibility to act in terms of the constitutional endeavour to reflect the country's demographics."

“The candidate was not discriminated against based on race and gender, put purely because of the limited pool the minister was given to choose from and he used the same method he used for all other posts,” Ntsebeza said.

He was responding to trade union Solidarity’s legal team’s assertions that the Equality Court could force the Department of Justice and Constitutional Development to appoint magistrate Kroukamp as the senior magistrate of Alberton, also known as the Palm Ridge Magistrate's Court.

Solidarity's legal representative, advocate Greta Engelbrecht, told the court sitting in the Palace of Justice, they intended making a submission for the court’s intervention.

This was despite being aware that the justice minister was the only representative tasked with appointing magistrates.

Engelbrecht said this appeal was because they believed Kroukamp had been unfairly discriminated against by the former minister, despite being earmarked by the Magistrate’s Commission as the only suitable candidate in 2010.

Judge Takalani Raulinga also noted that transformation was not merely blanketed in just appointing black people to posts, but in remedying the concentration of a particular race in one precinct.

Ntsebeza insisted no foul play had been committed as no final word on who was to fill the posts was announced, and that the candidates had the opportunity to re-apply for the posts when they were re-advertised.

Ntsebeza said there was no disputing Kroukamp’s competency, but reiterated that the issue at hand was simply because of the small pool of candidates recommended.

He said concerns were also raised regarding recommendations made by the commission for appointments in Durban and Worcester.

Kroukamp has, as of February 2009, been presiding as the acting senior magistrate in the Alberton Magistrate's Court.

Engelbrecht said: “Despite him having been chosen, the minister simply dismissed his candidacy due to him being a white male."

"The only reasons given were that the pool to draw from was not large enough and not in line with transformation of the judiciary."

Taking the stand on Monday, Kroukamp said he was not against the transformation of the judiciary, but felt his competency was unduly being challenged.

Justice Michael Masutha informed the Equality Court in September 2014 that he would also review his predecessor's decision to withdraw and re-advertise 22 other posts for senior magistrates.

The matter resumes on Wednesday.

Pretoria News