JSC wants Kebonang decision set aside
The Judicial Service Commission ( JSC) says the decision of Justice, Zein Kebonang regarding the recruitment of senior positions at the Administration of Justice (AoJ) was flawed in law, therefore ought to be set aside.
JSC wants the Court of Appeal to set aside the decision after the judge ruled that the Commission was bound by its undertaking in the recruitment of senior positions within the Registrars and Masters at the AoJ, as outlined in a circulated 2020 Savingram.
Justice Kebonang had ruled that the JSC was bound by its undertaking as contained in the September 2020 Savingram to internalise all positions before externalising them for recruitment.
He had also 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 the JSC are disagreeing with the judge’s findings saying he was wrong to make orders pertaining to the recruitment before the application for review was placed before court pointing out that the orders made against them could only be sought or granted in the review application.
“By making these orders, the judge had effectively reviewed and set aside the decision of JSC to externalise recruitment in an application for an interim interdict pending the determination of the review application which was not before him. He erred in holding that there is an established practice of promoting internally so as to raise a legitimate expectation,” said JSC.
The latter appeared at the Court of Appeal last week Friday arguing that the decision by the judge that the Savingram of September 21, 2020 constituted a policy or promise that recruitment would be first internalised pending externalised was wrong.
The Commission said there was no legitimate expectation for one to be interviewed before external recruitment could be embarked upon, as the judge ruled as such wants the appeal to succeed and the costs.
Meanwhile an appellant, Bonolo Kemoreilwe who holds the position of acting Deputy Registrar in the Judicial Division, responded to JSC saying they failed to advance any exceptional circumstances, nor set forth any good and substantial reasons for the expedited hearing of the appeal. She pointed out that they do not stand to derive any immediate and practical benefit, which could not be achieved by an appeal in the usual course.
“In fact, the order of the High Court was more practical considering that in hearing the appeal the court may exercise its discretion to grant the interim interdict, which would result in suspending the entire process until the review proceedings are concluded,” she argued.
Kemoreilwe also filed a cross appeal against Justice Kebonang’s judgment for saying the case did not justify the granting of an interim interdict and the order declining to grant the interim interdict. She explained that the judge erred in fact and in law by holding that, on the balance of convenience, that thee case does not justify the granting of an interim interdict.
“Once the judge found that there was an established legitimate expectation to be subjected to particular process, of considering internal candidates before recruitment for the posts is externalised, he ought to have granted the interim interdict to protect such a right pending the determination of the anticipated review application,” she said. Kemoreilwe said what she pleaded which was accepted by the judge was that she was entitled and/or had a legitimate expectation to be given priority before other persons who are not within the employ of the registrarship, are considered for the said position pointing out that once the appointment was concluded she would have lost that right.
Kemoreilwe argued that the balance of convenience dictated that the status quo be maintained until her rights are determined otherwise she stands to suffer great prejudice in the event the interim interdict was refused.
Meanwhile the back and forth between JSC and Kemoreilwe was as a result of JSC’s alleged change in recruitment policy. It came under fire following a sudden change of appointment of Senior Registrars by opening posts while initially they were done internally and employees within felt disadvantaged by the sudden change.
Kemoreilwe, who was affected by the change, 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.
She approached court on urgency after the position she was eyeing got externally advertised while she has 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.
Thabiso Tafila Attorneys represent JSC while Paul Muzimo lawfirm represents Kemoreilwe.