The High Court has reprimanded the Judicial Services Commission (JSC) for failing to abide by its own recruitment policy and applying double standards to the prejudice of a qualified employee.
The Court last week overturned the JSC’s decision to externalise the recruitment of deputy and master of the High Court positions.
Court papers indicate at least seven internal appointments within the Administration of Justice over the past 12 months none of which had been advertised externally.
The practice followed the release of a Savingram in September 2020 following June 2020 resolution by the JSC. The Savingram was circulated to all Magistrates and Registrars, setting out how candidates were to be selected for interviews and promotion.
In terms of this new policy, internal candidates who had the required qualification, experience and met the criteria for promotion were to be short listed and interviewed before any position could be externalized.
In his judgement Justice Zein Kebonang found that the applicant Bonolo Kemorwale had a legitimate expectation to be at least considered for the position. He said although the JSC deny that there is a new practice of internal recruitment since the Savingram , documents filed on record indicate that the externalization of positions was a practice that was adhered to beforethe September 21st , 2020 Savingram.
“Post the Savingram, positions were internalized not once but seven times. The Respondents accept this. In the savingram, addressees are categorically informed that ‘this practice is in force and effective as at the date of the resolution of the Judicial Service Commission’. The date and resolution of the JSC was Friday 12th June 2020. In my view, the frequency with which the positions were internalized post September 2020 points to a new established practice having come into existence.” This practice being internal recruitment.
It is partly against this practice that Acting Deputy Registrar – Judicial Division, Kemorwale, took the JSC to court seeking among others an interim interdict to stop the latter from assessing applications for the vacant positions of deputy and master of the High Court pending a review application.
Kemorwale had also sought for the matter to be heard on an urgent basis. This follows the decision by the Administration of Justice to issue an external advertisement last month (June 1st, 2021) for the above positions of the High Court of Botswana tenable in Gaborone and Maun.
Kemorwale, who says she meets all the requirements for the positions, told the court she stood to suffer irreparable harm if the interim interdict was not granted and she ultimately ends up successful in the review application. She argued that such interdict would not have adverse effects on the JSC because the said positions have been operating without substantive office holders for some time anyway.
“I have a legitimate expectation that, before the external advertisement of the positions of Deputy Registrar and Master of the High Court, I would be considered for the said position as it has been the case with other vacancies which were recently filled. As a Senior Assistant Registrar and Master with the most experience, and currently acting for similar position, I have a legitimate expectation that I should have been invited for an interview and considered for appointment to the said position before an external advertisement is issued,” she argued.
The decision to advertise the said position externally, Kemorwale said, was unfair in that she was now supposed to apply and compete with other persons from outside.
“I am deprived of the advantage that was afforded my colleagues who were recently appointed to the position of Registrar and Master – Lobatse and Registrar – Court of Appeal and other positions, which are even more senior. They were appointed, as indicated above without having to compete with people from outside registrarship.”
She said it was imperative that the matter be resolved urgently because the JSC had indicated that they are proceeding with the recruitment notwithstanding her objection.
In their response the JSC argues that the June 2020 Savingram does not in any way give the impression that internal recruitments should precede external advertisements, saying in fact that the Savingram communicating the resolution gives an example of Judgeship recruitments which have been external and have not followed the sequence alleged by Kemorwale. They also cited several instances where external advertisements have been made some of which the applicant (Kemorwale) had applied to and been unsuccessful.
The JSC also raised a preliminary point arguing that the application is not properly before the court because Kemorwale has “failed to cite the decision maker being the Judicial Services Commission against which the reliefs are sought… The matter has been brought on urgency when it is not urgent.”
Kemorwale, through her lawyers Paul & Partners had cited The Attorney General as the 1st Respondent representing JSC, and the JSC Chairman as the second Respondent because “the JSC is a body without legal personality and therefore has no locus standi.”
In his jugdgement Justice Kebonang turned down Kemorwale’s application for an interdict saying the applicant had already applied through the external advertisement and as such she remains a candidate for the job.
“…I do not believe that this is a case that would justify the granting of an interdict for a number of reasons. First, the Applicant (Kemorwale) admitted through her attorneys during oral arguments that she has responded to the external advertisement. She therefore stands to suffer no prejudice if the interdict is not granted. Second and perhaps more crucially, the Respondents (JSC) state that if the positions advertised are not filled, funding for them would be forfeited to other Ministries and Government Departments.”
On the issue of external recruitment Justice Kebonang however ruled in favor of Kemorwale saying the most equitable and practical remedy is to direct that the JSC must short-list and interview all qualifying internal candidates first. Has said it is only in the event that it does not find them suitable for appointment, that the JSC can extend the interviews to external candidates who would have already responded to the advertisement when it closed on the June 11th 2021. He also ordered the JSC to pay the costs.
“On the issue of costs, I am satisfied that the Applicant has succeeded in establishing a prima facie right which arises out of a policy communicated to all and a practice that has become regular. For this reason, although I have declined to grant the interim interdict, I think this is case justifying costs to be awarded in favor of the Applicant and I so order.”
