The Judicial Service Commission (JSC) has successfully defended and restored its recruitment criteria for senior positions within the Registrar and Masters at the Administration of Justice (AoJ).
However, a bench of justices Isaac Lesetedi, Singh Walia and Leatile Dambe on Friday overturned the decision of Justice Zein Kebonang in which he had ordered that the JSC recruit internally before externalising its positions.
When overturning the ruling, Justice Walia said public interest should prevail over the interests of an individual.
“While neither party would benefit from the loss of the vacancy funds, the prejudice to be suffered by Administration of Justice (AOJ) would be immeasurably greater than any prejudice befalling one person, for AoJ would be incapacitated from providing the necessary public service at a time when its human resource is hamstrung by COVID-19,” he said.
He explained that the High Court, having denied the relief sought, the court was in error in going further and granting orders that were not sought without also affording the parties an opportunity to deal with the matters advanced.
Justice Walia pointed out that the loss of funding would greatly impact on the AOJ service delivery mandate and that the greater public interest could not be ignored.
“There is nothing that says the applicant will not be fairly considered, notwithstanding the externalisation of positions,” he said.
Moreover, the judge explained that the ruling of the High Court was somewhat hesitant in its approach to the question of legitimate expectation though it went on to declare that the basis for it was well founded.
The JSC came under fire following an alleged sudden change of appointment of Senior Registrars by externally opening posts while initially they were done internally and employees within the AoJ felt disadvantaged by the sudden change. The judges’ judgment comes after Bonolo Kemorwale, who is holding a position of acting Deputy Registrar in the Judicial Division, felt disadvantaged by the sudden change of externalising positions while it has always been that they were internalised.
She had 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. She explained that the application of regular practice has led her to legitimately expect that consideration for appointment to senior positions will be accorded to those who are within the employ of registrarship and qualify for appointment to any vacancy that may be available.
“I have a legitimate expectation that, before the external advertisement of the positions of Deputy Registrar and Master of the High Court, I would be considered for the said position, as it has been the case with other vacancies, which were recently filled,” she said.