Judiciary under the spotlight
Judicial Service Commission ( JSC) accused of unfair recruitment practice Senior Assistant Registrar moves to interdict JSC recruitment process Court cannot compel the Respondents to employ the Applicant - JSC
The Judiciary has been put under the spotlight. This comes after the Judicial Service Commission ( JSC) was accused of unfair, unjust recruitment exercise for senior officers especially in the Registrar’s office.
In the latest contest the JSC is accused of having appointed some Registrars internally and decided to place an external advertisement for three positions of Deputy Registrar disregarding qualifying internal staff members.
A Senior Assistant Registrar in Gaborone is taking the JSC head- on for not appointing her for the position of Deputy Registrar and instead placing an external advertisement even though she satisfies all the requirements to be appointed or promoted.
The JSC is made up of Chief Justice Terrence Rannowane as Chairperson, Court of Appeal President Justice Ian Kirby, Attorney General Advocate Abraham Keetshabe, Keorapetse Boepetswe, Naledi Ratsoma and Letsweletse Dingake as members.
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 seeks an interdict, restraining the Attorney General and JSC represented by Chief Justice from proceeding to assess the applications for the positions of Deputy Registrar, that have been submitted pursuant to a Vacancy Circular No. 4 of 2021, dated the 1st June 2021 pending the determination of an application for review.
“I was on the 12th October 2020, appointed on acting basis to the position of Deputy Registrar – Judicial Division, which position I still hold to date.
“On or about the 3rd June 2021, the Administration of Justice issued an external advertisement dated 1st June 2021, vacancy circular No. 4 of 2021, for positions of Deputy and Master of the High Court of Botswana tenable at: 2 x Gaborone, 1 x Maun.
“The positions became available as a result of the restructuring of the registrarship which resulted in creation of new positions. The said restructuring process resulted in the creation of the following positions among others: Chief Registrar, Registrar of the High Court, Registrar of the Court of Appeal and Master of the High Court,” avers Kemorwale in her Founding Affidavit filed with court.
According to the court papers the new positions were filled by promotions and or appointment of officers who were already in the employ of administration of justice within the registrarship, without any external advertisement.
The former Registrar and Master of the High Court was appointed to the position of Chief Registrar, the Deputy Registrar – Corporate Services was appointed to the position of Registrar of the High Court, Deputy Registrar – Legal was appointed to the position of Registrar of the Court of Appeal and Deputy Master was appointed to the position of Master of the High Court, the court documents seen by Botswana Guardian show.
Kemorwale has explained that the JSC did not advertise the said positions, neither internally nor externally, the said 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.
It is stated in the papers that another vacancy for Deputy Registrar and Master, became available in Lobatse, when the substantive officer’s contract was renewed and transferred to Maun Division of the High Court. The vacancy was also filled through promotion or appointment of an officer within the department. Senior Assistant Registrars who were eligible and qualifying including Kemorwale were invited for interview and subsequently, an appointment was made from within.
“From the facts, it is clear 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.
“I am in terms of experience, at the moment, the most senior employee of all the Senior Assistant Registrars in the country. Above that, I possess the requisite qualifications and the required 16 years of experience apparently needed for the externally advertised positions.
“I have been at E1 scale ( Senior Assistant Registrar and Master) for a period of more than four years, this is more than the two years of experience at E1 scale that is required by the current external advertisement,” argues Kemorwale.
She added 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.
“It is my averment that in as much as the JSC is entitled to regulate its own procedure and processes, it is still bound to observe the principles of equity, fairness and consistency. The process cannot be changed at will to favour certain candidates and to the prejudice of others,” she argues.
But the JSC will have none of that. The JSC Secretary who is also the Acting Chief Registrar Juliana Dube avers 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.
She stated in her replying Affidavit that the practice of the JSC is that it 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.
“In amplification I aver that, the Applicant’s expectation is premised on an inaccurate account of what procedure has previously been followed by the Judicial Service Commission.
“Furthermore, the Applicant is well aware at her position that the Judicial Service Commission regulates its own procedures and that in this case, as she points out herself, several appointments have already been made following a restructuring exercise which can only mean that the pool from which the Judicial Service Commission can select candidates internally has contracted necessitating widening through external advertisements.
“The Applicant was recently interviewed for the position of Deputy Registrar and Master which was tenable at Lobatse and this was on the 25th September 2020; she was shortlisted for the interview because she met the minimum requirements for the position and because there were three candidates to interview”.
According to Dube the JSC however 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.
“The Applicant fails to inform the Court that there are other officers within the Registrarship who also qualify for the positions but only looks at herself and seems to demand the appointment as of right,” said the JSC secretary.
Dube said there are currently three qualifying Registrars for the three vacant positions however, the JSC assessed the requirements for each vacant position and chose the external recruitment method to widen the selection pool.
Dube denied that the application for review challenging the decision to advertise the subject matter positions would have any merit so as to warrant disruption of the recruitment exercise commenced for the benefit of the entire Administration of Justice.
“The intended application has no prospects of success as no effective relief can be obtained from it, compelling the Judicial Service Commission to interview the Applicant before considering external applications will not guarantee employment to positions advertised.
“That the review would be academic if filed would still arise even if the interdict were to be granted as the effectiveness of the orders to be sought in the review is also doubtful.
“The Court cannot compel the Respondents to employ the Applicant in the review application”, argues Dube in her affidavit.
The case which was to be heard by Justice Omphemetse Motumise has been moved to Justice Dr Zein Kebonang.