ACJ impeachment hits wall again
RELEBOHILE TSOAMOTSE
MASERU – All Basotho Convention (ABC) Secretary General, Lebohang Hlaele’s attempts to have Acting Chief Justice, ‘Maseforo Mahase impeached have hit the wall again after two other judges appointed to hear the case recused themselves. Justices Teboho Moiloa and Thamasanqa Nomngcongo have recused themselves from presiding over the case following recusal of a panel that was initially allocated the case.
ACJ Mahase successfully applied for the recusal of the initial panel. Months after the initial panel recused themselves, the matter was allocated to Justices Moiloa, Nomngcongo, as well as the Acting Judge of the High Court Justice Polo Banyane. Justice Banyane remains seized with the matter after he did not recuse herself when the two judges sitting with her disqualified themselves.
At least two other judges have to be added to the panel in order to set up a constitutional court that will determine the matter. Asked about the delay in the allocation, High Court assistant registrar, Advocate Staford Sharite, told Public Eye in an interview the delay was caused initially by the fact that his office was not immediately informed of the order in the recusal application. “I have been under the impression that the recusal application was still in the judge’s chambers to finalise their reasoning until the order was brought to my attention,” he said.
Sharite said he became aware of the order when Hlaele instituted an interlocutory application on the matter. The interlocutory application was an interdict application to prevent Prime Minister Thomas Thabane from confirming justice Mahase as a substantive chief justice despite the pending case. However, it could also not be heard because a new panel was not yet constituted.
Thabane is reported to have written to King Letsie III, nominating Justice Mahase for appointment as chief justice but Hlaele’s lawyer, Advoacte Koili Ndebele, wrote to the King and informed him of the pending case. Ndebele also asked the Registrar of the High Court to allocate the case to the new panel following the recusal of the initial panel. When Sharite added Justices Moiloa and Nomncongo on the panel, the two judges declined to preside over the matter and gave their reasons.
Justice Moiloa is reported to have said he was busy writing a judgment involving ritual murder suspect Lehlohonolo Scott and that since he will be soon retiring, he is finalising cases before him. Justice Nomngcongo, on the other hand, said he could not preside over a case where a complaint has been raised against him.
Sharite said he had also placed the file before Justice Moroke Mokhesi who also declined presiding saying he featured in the affidavit deposed to by Acting Chief Justice.
Sharite admitted it was abnormal for all judges to recuse themselves from a case. “I must admit that a situation like this has never happened, it is abnormal.”
He said getting foreign judges to preside on the matter could be one of the options should all judges choose not to preside.
Advocate Ndebele said they have learnt about the recusal of the judges but they are in the hands of the registrar.
“We are in the hands of the registrar,” he said.
In an affidavit attached to the application when Justice Mahase asked for the recusal of the whole High Court bench, she had said Judge Mokhesi is preferred by registrars.
“Justice Mokhesi is one of the junior judges having been recently confirmed as a judge. He too is a preferred judge dealing with cases which I maintain to date, it was irregularly dealt with by the Court of Appeal.
“I have and I am still wondering why he was the one preferred by the registrar or deputy registrar to preside over that whilst there are numerous judges far senior to him. I smell a rat here,” Justice Mahase said.
She also stated that Justice Makara has over time refused to deal with civil matters while Justice Nomngcongo has disregarded her orders to deliver pending judgments.
“Currently, I have with me a file in respect of my other colleague Justice T Nomngcongo through which several people have complained about none delivery of judgments which have been pending before him, despite repeated calls and orders in the labour relations, by not only myself but also the Chief Justice N Majara (now on suspension,) Justice Nomngcongo has to date not favoured me with any response to those pending judgments.”
Advocate Sharite says another panel has been constituted after files were placed before Justice Makara and Lisebo Chaka Makhooane and that the lawyers have also been informed.
It remains to be seen whether the two judges will accept to preside over the matter as Justice Mahase had also complained about them.
She said Justice Makhooane was unhappy with her appointment as the acting chief justice because she (Makhooane) is friends with Justice Majara.
When motivating the recusal application, Judge Mahase had argued that there was a likelihood of bias if local judges were to preside over the case, essentially accusing them of incompetence.
The bias, she said, would result mainly from the fact that as the ACJ she is the chairperson of the Judicial Service Commission (JSC) and have to deal with complaints from members of the public about the judges such as instituting disciplinary measures against them.
Judge Mahase said whatever decision the JSC makes about the judges, it might send signals that she has influenced the Commission as its chairperson.
Attorney General (AG), Haae Phoofolo, backed her and said all High Court judges ought to recuse themselves from the case due to close affinity they are likely to have towards her as their boss. Phoofolo said no judge of the High Court can sit in judgment where one of his/her colleague with whom in the nature of things he/she has or will have a close relationship.
In an affidavit, Phoofolo said: “I aver that they (High Court judges) are incompetent to preside over the matter in which 1st Applicant (ACJ) is one of the litigant and the prayers are directed against her. I am apprehensive that they will not judge according to the dictates of justice and the sense of duty of an upright mind.
“I am reasonably apprehensive that they will be biased. They are suspects and should decline to hear this matter where prayers are directed at their interim boss.”
He also proposed the appointment of foreign judges to deal specifically with Hlaele’s application.
Judge Mahase said all her fellow judges were unfit to preside over a case that will determine her future as ACJ and that for the fact that the country is presently polarised on political lines, the public was always going to be suspicious of any outcome of the case.
While Justices Monapathi, Peete and Moahloli recused themselves, they declined to order that foreign judges be appointed to hear the case.
They ruled that judges of the High Court are not only able but that they are also competent to determine issues raised in Hlaele’s application.
The judges said their recusal was made in the interest of justice. “The decision to recuse ourselves is prompted by our feeling that in this case, justice needs not only to be done but must seen to be done.
“It is our firm decision that having regard to all recognised principles on recusal applications, the real or imagined likelihood of bias may be illusive depending upon the particular circumstances of each case. We finally are of the view that this is a case in which we have to recuse ourselves as we hereby do,” they said.
However, the judges dismissed Justice Mahase and Phoofolo’s contentions saying these just are perceptions and should be treated as such.
“We should make it clear that the allegations made in the affidavit of the Acting Chief Justice without being judgmental, we take them as a perception that she entertains perception – rightly or wrongly – that this court is likely to be biased against her regard being had to be allegations.”
They continued: “In this recusal application, the Acting Chief Justice has listed grounds for the recusal and has contended that there is in her view a likelihood of bias, this should be viewed objectively and not be discounted as lacking bona fides.”
They added: “We are of the view that it was unfair for the Attorney General to allege as he did in his affidavit that we are incompetent to deal with the matter of interpreting Section 121 of the Constitution of Lesotho, nor does collegiality have the effect of disqualifying us from presiding over the matter. Imagined perceptions are difficult to assess but seemingly they do exist in the minds of the applicants who deposed to affidavits.”
