Judgement reserved in Khama�s limit of powers
Mpho Mokwape | Tuesday January 17, 2017 15:38
The LSB, who were challenging Khama’s decision, said yesterday before the bench of the Court of Appeal that when it comes to the appointment of the Judges of the High Court, the buck stops with the JSC.
LSB Senior Counsel (SC), Alec Freund submitted that there was no dispute that Khama had the power to appoint as compared to the power to refuse to appoint the Judge, which was a critical issue. He explained that as per the constitution, the President has the power with a duty, which mandated him to appoint the Judges, according to the recommendation of the JSC.
Freund argued that section 96 (2) of the constitution gave clarity that the President has all the power to appoint the Chief Justice or any other person of power but clearly states that when it comes to the Judges, the JSC has conferred powers as they recommend a suitable candidate.
“The law states that it is the JSC that recommends a candidate. The President has to appoint since he has no powers to refuse. In this particular case the President’s decision does not reflect the advice of the JSC,” he said. Freund maintained that the President can only refuse the appointment if there were reasons, which he needs to disclose to the JSC, or a person who was directly affected being the recommended candidate.
He said in the present case, the President had failed to give any reasons why he refused the recommendation, therefore his decision amounted to being irrational and needs to be reviewed. “He has to give reasons. Otherwise, how does the JSC navigate to choose another candidate if they do not know what is wrong with their best candidate as recommended?” Freund asked.
Moreover, Freund argued that prerogative powers that Khama enjoys on other appointments should have not applied to the appointment of the Judge. He said it was a ceremonial power to appoint Judges after the recommendation by the JSC. “The President does not enjoy executive powers when it comes to the appointment of Judges as the powers are conferred to the JSC. It is not a shared power as it is invested exclusively for the JSC. Anwar Albertus SC for the state countered that the President has the discretion and that he was exercising his executive powers in refusing to appoint the Judge. He said the decision not to appoint could only be reviewed if it was on the basis of unlawfulness or illegality. Albertus said in that particular case there should have not been any legitimate expectations as there was no promise made.
“If there was such expectation, that he was going to be appointed, then the court has the right to review the decision of the President,” he said.
He maintained that the lawyer was declared an undesirable person by the President, therefore there was nothing illegal about it.
On the matter that the President has to at least give reasons as to why he refused the lawyer, Albertus said appointment of the Judges was one of the highest positions and as such there was no need to give reasons. “This is one of the highest positions and if there is going to be demand every time such decision is taken, then we will have so many requests as to such. In this matter the President is not bound to give reasons,” he said. The case was before Justices Isaac Lesetedi, Monametsi Gaongalelwe, Arthur Hamilton, David Brand and Alastair Abernathy.