Assistant Registrar gets reprieve against JSC
High Court Judge Dr. Zein Kebonang has ruled in favour of a Senior Assistant Registrar who was challenging the decision of the Judicial Service Commission ( JSC) who overlooked her for the position of Deputy Registrar.
Bonolo Kemorwale is employed by the Administration of Justice as a Senior Assistant Registrar, stationed at the office of the Master of the High Court in Gaborone.
Kemorwale wanted the decision for proceeding to assess the applications for the positions of Deputy Registrar, that has been submitted pursuant to a Vacancy Circular no. 4 of 2021 dated the 1st June 2021 be reviewed and set aside. Delivering judgement on Wednesday this week Dr. Kebonang stated that “the most equitable and practical remedy is to direct as I hereby do, that the JSC must shortlist and interview all qualifying internal candidates first and in the event that it does not find them suitable for appointment for whatever reason, to extend the interviews to external candidates who would have already responded to the advertisement when it closed on the 11th June 2021. On the issues of cost, 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.” Dr. Kebonang who declined an interim interdict, said granting an interdict would cause a great prejudice or harm to the public in terms of failure of service delivery and to the Administration of Justice from the resultant of loss of funding. In his view, the loss of funding will greatly impact on the AOJ service delivery mandate and this greater and broader public interest cannot be ignored.
Kemorwale has in her court papers explained that the JSC did not advertise the said positions, neither internally or externally, but some employees were invited for interviews and appointed to the said positions.
There is also a position of Deputy Registrar – Trust tenable at the Master’s office. The said position was filled without any advertisement, internally or externally.
Kemorwale argues that there is a well- established practice that vacancies or appointment to senior positions within the registrarship would be effected through promotions or appointment of officers within the department, where there are eligible candidates.
She says in terms of experience, she is the most senior employee of all the Senior Assistant Registrars in the country at the moment. She also has all the requisite qualifications and the required 16 years of experience apparently needed for the externally advertised positions.
She said that a legitimate expectation has been created that once there is a vacancy in a higher position, for Deputy Registrar and Master, she will be considered for promotion or appointment to the same, without having to compete with other persons from outside the department.
On the other hand the JSC Secretary who is also the Acting Chief Registrar Juliana Dube argued that the JSC has over the years adopted various methods to fill vacancies and these methods are informed by an assessment of the type of candidate that is being sought for the position to be filled, whether from the existing pool of internal candidates there are suitable candidates who could be selected.
In her replying Affidavit she said the practice is that the JSC adopts various methods to fill vacancies. She said the JSC deny the narrative that there is a sudden change in the manner in which it has been conducting its recruitments. Dube argued that external advertisements form part of the processes previously adopted by the JSC.
She further reiterated that the JSC retains the discretion to determine, on a case by case basis, when to first advertise internally and when not to, guided by the circumstance of each recruitment as has been previously done.