Secrecy shrouds Court of Appeal judge appointments
Oarabile Mosikare | Friday February 16, 2018 19:00
During its meeting on Monday, the JSC considered, approved and recommended the appointment of Makhwade and Dambe by President Ian Khama.
This has prompted questions as to what criteria was used to shortlist the two jurists on permanent and pensionable terms under Section 100 (2) of the Constitution and Section 8 (1) of the Judicial Services Act.
The JSC also discussed and considered the results of the round robin for the appointment of Judge Jennifer Dube as High Court Judge. Dube has been acting judge until December 31, 2017.
These appointments have not gone down quite well with some in the Judiciary who question why Makhwade and Dambe were picked and not Justice Abednego Tafa if seniority were the criterion.
“Why does it have to be from the High Court? If it has to be from the High Court why not Justices Lot Moroka, Michael Leburu or Modiri Letsididi?” a high-ranking source in the Administration of Justice wondered.
The sources concurred that there is no rule in the appointment of CoA Judges. “Why the differential treatment? High Court Judges are also Judges of the Court of Appeal constitutionally. Why treat them differently? The rule is you cannot treat similarly circumstanced people differently.”
The argument is that if you place procedure in the High Court, also place it in the CoA.
“These appointments are not based on a rational basis. We know it cannot be on the basis of seniority because these are not the most senior Judges. On what consideration were they picked?”
Another source wanted to know who approaches these jurists. He said it cannot be Chief Justice Maruping Dibotelo who is also the JSC chairperson because “in his remarks during the Opening of the Legal Year, he announced his retirement and said he will not make major announcements that will impact of the next incoming Chief Justice”.
“These are major pecking orders, elevating some Judges and leaving others. Is it possible for the Chief Justice the most senior Judge to impose Judges on the Judge President of the Court of Appeal Ian Kirby?”
In the case of Dube, one of the sources explained that last year she applied to replace Justice Kholisani Solo. During interviews Dube was second best after Justice Zein Kebonang. A year later the JSC used an interview that was conducted for a vacancy in respect of Solo. “That is the justification for the direct appointment of Dube.” Another queried that a vacancy must be advertised.
He quoted Section 103 (5) of the Constitution which reads: “The commission may regulate its won procedure and, subject to that procedure may act notwithstanding any vacancy in its membership or the absence of any member and its proceedings shall not be invalidated by the presence or participation of any person not entitled to be present at/or to participate in those proceedings”.
He explained that the Section simply says the JSC has the power to formulate its regulations. “This means in the absence of specific provisions on how it must act, it can act anyhow. The question is, is there a manner in which the JSC must consider the appointment of a Judge? We don’t have the benefit of actual text of its regulations. We do know that by practice and conduct when there is a vacancy in respect of the High Court Judges there is an advertisement.
We don’t know whether JSC is empowered in exceptional circumstances, it can forgo advertisement and an interview that is headhunt or pick the second highest performing person in the previous interview. With this absence these rules will be changed as and when it is convenient for the JSC. That absence takes away the public scrutiny aspect.”
In the past, interviews involving JSC meetings, JSC secretary Michael Motlhabi said he could not discuss the business of the commission in public.