Law Society finally sues Khama
Oarabile Mosikare | Thursday May 28, 2015 18:00
The LSB and Motumise on Monday finally filed papers at the High Court challenging President Ian Khama’s decision to reject the recommendation of the Judicial Service Commission (JSC) to appoint Motumise to the bench. The LSB executive secretary Tebogo Moipolai said the Constitution entrusts the JSC with the important public power to appoint judges.
“Although the Constitution allows the JSC a wide discretion to determine its own procedure that discretion is not unfettered, as can be seen from the use of the word ‘may’ in section 103 (5) and the pre-determined requirements on voting in section 103 (6),” wrote Moipolai. He said the JSC, as an organ of state, is bound by values of transparency and accountability.
“The JSC is under a legal obligation and constitutional obligation to act rationally and transparently and, it follows, is obliged to give reasons for its decisions, it is difficult to see how the JSC maintains accountability.
“Assess to the records of the JSC is also essential to a proper determination of whether there is a rational connection between the process taken before appointment and the decision and the reasons provided by the JSC,” Moipolai wrote. The executive secretary said the disclosure of records of the proceedings of the JSC would also further the constitutional right to access to information and would advance transparency and accountability.
“It is not open to the JSC to regulate its decisions and decision-making processes out of the spotlight of judicial review, nor is it open to the JSC to shield its decisions and decision-making process from judicial scrutiny through reliance on section 103 (5).
“It undermines the purpose of the JSC and its constitutional role if its actions are shielded, not only from public view, but also judicial scrutiny.” He said the common law requirement of procedural fairness and administrative justice carries with it the need to give reasons for decisions, which increases public confidence in the decision-making process and makes it easier for a decision to be reviewed.
He applied for the order to review and set aside Khama’s decision not to appoint Motumise to the bench.
“It is declared that the President is bound to follow and implement the lawful advice of the Judicial Service Commission on the appointment of High Court judges in terms of section 96 (2) of the Constitution,” Moipolai said.
He also asked that it should be declared that the representative of the LSB on the JSC is entitled to report to and consult with the Council of the Law Society on all matters relating to the appointment of judges.
He also asked that it should be declared that the JSC must make public the outcome of its deliberations on the appointment of judges.
“The first and second respondents are ordered jointly and severally to pay the applicants’ costs. The applicants are afforded further or alternative relief,” he concluded.
A topnotch South African senior advocate Wim Trengove and Tshiamo Rantao would lead the LSB and Motumise’s team.