JSC bound by its undertaking-Kebonang

Ordered to recruit as per 2020 circulated policy

The Judicial Service Commission (JSC) has been reminded that it is bound by its undertaking in matters relating to recruitment of senior positions within the Registrars and Masters at the Administration of Justice (AoJ), as outlined in a circulated 2020 savingram.

According to the High Court, it was the very same Savingram that internalised all senior positions within the AoJ before the sudden turn of externalisation.

The JSC came under fire following a sudden change of appointment of Senior Registrars by opening posts while initially they were filled internally and employees within felt disadvantaged by the sudden change of the recruitment process.

Justice Kebonang, in delivering his findings, said when a public body or any entity has promised to follow a certain procedure or path, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. “It follows that the JSC is bound by its undertaking as contained in the September 2020 Savingram to internalise all positions before externalising them,” he said. He explained that administrative policies may change with changing circumstances and that the liberty to make such changes was something inherently within the power of any organisation.

However, he pointed out that when administrative policy takes place in any organisation and was communicated in a Savingram or circular, any reasonable expectations that may have aroused it are destroyed. “There is nothing that suggests that September 21, 2020 Savingram has been changed and that such changes are known to the applicant and others. Having published 2020 Savingram as a policy, it would follow in selecting and promoting internal candidates to the magisterial and registrarship positions, it is incumbent on the JSC, if it wishes to depart from this Savingram to publish a new one unless that would conflict with its functions… The JSC has not made such a claim here and having issued the Savingram, the JSC must be held to its own policy,” he said.

The judge explained that the JSC having promoted some employees without externalising their positions, it could not be said that the applicant’s subjective expectation that she would be accorded the same treatment was objectively unreasonable, having regard to the totality of the circumstances.

He said it was hard to imagine a stronger case of an expectation arising either from an express promise given or from the existence of regular practice, which the applicant expected to continue as in the current matter. “In the Savingram of September 21, 2020, the JSC promises and undertakes that those who qualify for promotion in the magisterial and registrarship cadre would duly be selected by the selection committee and invited for interviews.

Having made and communicated that promise, the JSC must he held to it,” he said. Kebonang explained that by promoting other employees without externalising their positions, the JSC also created a legitimate and reasonable expectation that it would act in that particular way with respect to all employees. He noted that good administration requires that an employer must act fairly and consistently that it must treat similarly situated the same, fairness and consistency must not be at the bottom of the priority list. However, Kebonang in his judgement agreed with the JSC that the legitimate expectation does not confer substantive rights was correct. He explained that legitimate expectation includes expectations that go beyond enforceable rights provided that they have some reasonable and rational basis to them. “Such expectation may have been induced by either policy promise and practice. The Savingram would constitute a policy or promise that one can legitimately expect to be followed,” he said. Though he declined the interim interdict that the applicant wanted on the basis that it would affect service delivery in the justice system, he ordered that JSC shortlist and interview all qualifying internal candidates first and must externalize the recruitment only in the event that no suitable internal candidates are found.

“The externalisation referred to above must be limited to candidates who had responded to the external advertisement of June 1, 2021,” he said. Judge Kebonang’s judgement comes after one, Bonolo Kemorwale who is holding a position of acting Deputy Registrar in the Judicial Division felt disadvantaged by the sudden change of externalising positions while it has always been that they were internalised.

She approached court arguing that there has always been a practice that appointments within the Registrars division were filled internally, a practice that has been in place until recently when it was her turn to be considered for the senior position. Kemorwale approached court on urgency after the position she was eyeing got externally advertised.

She had an expectation because it has always been clear that there was 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 explained that application of regular practice has led her to legitimately expect that consideration for appointment to senior positions will be accorded to those who are within the employ of registrarship and qualify for appointment to any vacancy that may be available. “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,” she said.

The JSC in its defence denied that there was any policy in place meant to recruit internally only. Its contention has been that over the years it had adopted various methods to fill vacancies and that those methods were informed by an assessment of the type of candidates that were being sought for the position to be filled. Acting Chief Registrar of the High Court, Juliana Dube explained that the JSC assessment had been that there was need to widen the pool from which it could recruit suitable persons for the position. She said the turn of events meant that external advertisement be circulated to ensure that whilst some advantage maybe given to those who are already in the AoJ, the organisation was not deprived of the opportunity to recruit the best candidates that could enhance service delivery towards clients.

“The JSC selected the method of international recruitment, as it believed that there were suitable candidates within the pool of Registrars who qualified to be considered. However, we deny that narrative that there is a sudden change in the manner in which the JSC has been conducting its recruitments.

External advertisements form part of the process previously adopted by the JSC,” she said. Dube further explained that the applicant was afforded the opportunity of an internal interview and was well aware that the JSC had already commenced externally advertising the position she wanted to fill. Paul Muzimo represented the applicant while Diba Diba represented the JSC.