The rejection of recommendations of the Judicial Service Commission (JSC), without giving any reasons, by the Presidency has led to crisis in the judiciary. Five magistrates recommended for appointment to the post of Magistrate Grade I, D2 for Special Traffic Courts after rigorous interviews and assessment for suitability by JSC in 2014 were rejected for unknown reasons. But a subsequent comment from OP gave a hint, when Khama's office inquired why practising magistrates could not be promoted into the positions instead of an external recruitment process of advertising posts and interviews. Unknown to him, all magistrates holding lower positions did not qualify to be promoted as they lacked the minimum requirement of two years’ experience at Grade II level for the 10 senior magistrate posts, which were to become available in special traffic courts in Lobatse, Maun, Francistown, Selibe-Phikwe, Palapye, Mochudi, Gaborone, Jwaneng and Hukuntsi. Hence, the JSC had opted for the external recruitment outside the magistracy. Of the six candidates the JSC had recommended for appointment by Khama as Magistrates Grade I for the Traffic Courts, only one candidate namely Kelebogile Matlhodi’s recommendation was approved. The recommendations for the appointment of the other five candidates were rejected for various reasons, which members were not privy to at the time of making the recommendations. Consequent of the rejection, nine Magistrate Grade I positions dedicated to the Traffic Court remained vacant. Chairman of the JSC, Chief Justice Maruping Dibotelo indicated at a meeting to consider the rejection that in considering the recommendations the office of the President had wanted to know why JSC had not considered the appointment of magistrates who are already part of the establishment, and had applied for the advertised positions. Dibotelo explained that most of the magistrates who had responded to the advertisement did not meet the minimum requirements and for that reason were neither shortlisted nor considered. It was noted in particular, that the magistrates who had applied did not have the minimum two (2) years’ experience at Magistrate Grade II level. Dibotelo, therefore, was not keen to promote and encourage the suggestion from OP. His view was that the acceleration of magistrates into higher positions through promotions before serving the minimum period required at specific grades was likely to cause disgruntlement and instability within the magistracy. Hence, the JSC found it more expedient not to re-advertise the vacant positions for the Traffic Courts until after its meeting of the 22 November 2013, especially because the process for the procurement of the Mobile Traffic Courts was still on going. At the time, the Administration of Justice had managed to secure funds for four buses to be converted into Mobile Traffic Courts. It was indicated that although the mobile courts were procured for the primary purpose of exclusively addressing traffic cases they would, where there is need, be used as court venues for other matters in their service areas.
It has emerged that Nelson Ramaotwana who was denied the position of senior magistrate by Khama had previously been disqualified by the JSC from another magistracy post. Before eventually resigning his post as senior prosecution counsel at Attorney General's chambers in 2015, Ramaotwana was in 2014 one of the 57 applicants for the post of Magistrate Grade I, D2 for the Special Traffic Courts but his application was thrown out because it was found not to meet minimum requirements. In a rejection letter dated 6th June 2014 copied to Chief Justice Maruping Dibotelo, authored by Secretary of JSC, Michael Motlhabi, Ramaotwana was informed that his complaint was tabled for consideration by the JSC at its meeting of the 15th May 2014 and it was resolved that his application was not successful as he had not fully complied with the requirements of the advert for the post. The Patriot on Sunday has since established that Ramaotwana had neither submitted the two (2) references nor disclosed who his referees were, as required in the advertisement. He had only submitted a copy of National Identity Card (O mang), Academic Qualifications and referees instead of references. "It was on the basis of the above that your application was never considered nor a recommendation made for your appointment as a Magistrate Grade I for the Special Traffic Court. Please note that in the light of the reasons advanced for the rejection of your application we are constrained by the confidential nature of the business of the JSC to enter into dialogue with you on some of the issues you have raised in your letters," wrote Motlhabi, responding to Ramaotwana's complaints letter. Unhappy that his application was disqualified, Ramaotwana had written two letters dated 27th March 2014 and 5th June 2014 registering complaints with the JSC. Beyond complaining, Ramaotwana also filed a lawsuit challenging the decision not to consider his application and to recommend him for appointment as a Magistrate Grade I for the Special Traffic Courts. Asked this week what happened to the lawsuit he says he withdrew the matter when another opportunity to apply for a senior magistrate post arose. He, however, was also unsuccessful when a recommendation for his appointment was rejected by Khama despite passing JSC interviews.
JSC doubts Motlhabi
It has also emerged that the Registrar & Master of the High Court, Michael Motlhabi almost failed to ascend the post after him and another candidate Cynthia Sekga, then Director of Legal Services at Botswana International University of Science and Technology (BIUST), did not pass JSC interviews and thus were not recommended for appointment. The position of Registrar & Master had become vacant since 1st August 2013 after then incumbent, Godfrey Nthomiwa, had assumed duties as Judge of the High Court. An advertisement flighted in May 2013 to fill the post attracted only the two unsuccessful applicants. A JSC meeting held in the Chief Justice's Boardroom on 15th May 2014, attended by Dibotelo, CoA Judge President Ian Kirby, Attorney General Dr. Athalia Molokomme and Tebogo Sebego of Law Society of Botswana (LSB) authorised the Chief Justice to head hunt for a suitable replacement. But such attempt at head hunting was not successful. In the meantime, Motlhabi was appointed Acting Registrar and Master of the High Court in August, 2013 until the Substantive Registrar was appointed. During the cause of his acting appointment, the JSC mandated the Chief Justice to closely monitor him with the view to reconsider his suitability for confirmation as substantive Registrar and Master of the High Court. At the JSC meeting, the Commission was informed that during the acting period Motlhabi had demonstrated several competencies and leadership skills. He had also shown that he is a decisive leader who had introduced several initiatives that greatly improved the productivity of the Registrars. The other members of the JSC observed that they had also noticed Motlhabi’s strengths and competencies, especially in his role as Secretary to the JSC. Sebego also confirmed noticing a marked improvement in the efficiency of the Court Registries since Motlhabi’s acting period. The commission did however observe that in terms of public presentation Motlhabi came across as somewhat reserved, although the content of his presentation would be correct. This was not considered to be a matter of concern because many new appointees to such positions develop confidence in their presentations with time. In the light of the foregoing, the Commission was convinced that Motlhabi was suitable for confirmation and appointment. It was only then that the JSC unanimously agreed to recommend for approval of His Excellency the President, the confirmation and appointment of Motlhabi to the position of Registrar and Master of the High Court.