Former justice minister Jeff Radebe’s legal team wants a case of racial discrimination against him struck off the court roll.

The case is brought against him by union Solidarity after he refused to promote magistrate Martin Kroukamp to the post of a senior magistrate at Alberton Magistrate's Court in 2011.

Advocate Dumisa Ntsebeza SC, representing Radebe at Equality Court sitting in the North Gauteng High Court, launched an application for absolution from instance - meaning that Solidarity failed to make a prima facie case.

Meanwhile, Solidarity argued that it was unfair discrimination based on his gender and race that Kroukamp was allegedly overlooked for a promotion by Radebe, who was the minister of justice and correctional services at the time.

Kroukamp, who has been acting as a senior magistrate since 2009, applied for the position after the Magistrates Commission advertised the position in 2009.

He was shortlisted and interviewed in 2010 along with three other applicants and in 2011, the commission recommended Kroukamp as the only suitable candidate as senior magistrate.

Radebe ignored the commission's recommendation, saying that Kroukamp's promotion would not promote transformation and advised that the commission re-advertise the post to widen the applicant pool.

Advocate Greta Engelbrecht for Solidarity also argued that whilst the minister was not obliged to follow any recommendation made by Magistrates Commission, Radebe should have had reasons competent in law to not follow a particular recommendation.

In 2014, Minister of Justice Michael Masutha told the Equality Court that he would review his predecessor's decision not to appoint Kroukamp as a senior magistrate.

Solidarity's Dirk Groenewald said in a statement that after Masutha's review, Kroukamp was still not appointed.

"Minister Masutha also undertook to review the decision to withdraw and re-advertise 22 other senior magistrate’s posts," Groenewald said in a statement.

The application will be argued on Wednesday.