Appeal Court to step in on faulty High Court orders



MASERU – The Appeal Court has advised High Court judges that in future it will be forced to overturn or cancel orders reached if the reasons behind are not provided. The Apex court said such decisions by High Court judges could now cost litigants who approach the Appeal Court for intervention. While the cancellation will be in a very restricted approach the court says it will, based on evidence by any of the litigants, cancel orders if convinced it is unable to understand how the court reached a conclusion averse to them.

This hard stance was taken by the court on Friday last week while delivering judgments for the April session of the court. The Apex court was forced to determine numerous appeals without the benefit of understanding reasons for the High Court decisions. In his remarks for the official opening of the April session of the court, court president Dr Kananelo Mosito on April 12, lamented a practice by some High Court judges who do not bother to give reasons for their decisions.

The top judge called on Chief Justice Sakoane Sakoane to act on such judges. A judge’s failure to provide reasons, he said, may result in quashing of decisions “not on the basis that the decision had been shown to be unreasonable or erroneous at law, but on the basis that the breach of the duty to give reasons in itself warranted the quashing of the decision.”

Having heard numerous appeals without reasons, the court was compelled to take this harsh stance. “. . . There will be occasions when, on a very restricted approach, an application to overturn a decision on the basis of absence or inadequacy of reasons, may be made if a litigant is able to satisfy a court that he or she is unable to understand why the judicial officer reached a decision averse to him or her.”

The remarks are contained in a judgment wherein the Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, was appealing the High Court (sitting as the Constitutional Court) decision to entertain an application where it was asked to initiate an investigation into the fitness of Acting High Court Judges Charles Hungwe and Onkemetse Tshosa to hold office.

Motinyane had argued that the court lacked jurisdiction but it went ahead and issued interim orders. The court ordered: production of the complainants medical records by the Lesotho Correctional Service (LCS); and, production of an agreement between government, Judicial Service Commission (JSC), Southern African Development Community (SADC) and European Union (EU) agreement on the manner in which high profile murder trials financed by the EU are to be dealt with. The Registrar of the court was also ordered to avail transcribed electronic records of their trials.

The court, however, did not pronounce itself on the lack of jurisdiction as alleged by the DPP. She was forced to appeal the High Court decision but the interim orders had no reasoning. Appeal Court judges who heard the appeal say the High Court’s failure to give reasons for the order it made has also made it difficult to understand how it (High Court) arrived at its decision. Attempts to arrest the situation, they said, have been futile and may never work until the Chief Justice takes a stance against the judges.

A five-member bench comprising of Justices Kananelo Mosito, Petrus Damaseb, Moses Chinhengo, Van Der Westhuizen and Phillip Musonda warns that in neglecting their responsibility to provide reasons for their decisions, the judges are contravening the public law proposition that “decision makers must act fairly, rationally and for proper law purposes. To discharge this duty, it is necessary to fully record the actual reasons for a decision, disclose findings on material questions of fact and the reasoning process leading to the conclusion reached.”

In the DDP’s appeal, the judges say they were left to glean elsewhere “to try and understand what actually transpired in court and what prompted the judges to make an order now challenged on appeal.” The judges also wrote that an appellant court must always be placed in a position in which it can properly assess the correctness of the decision which they said was not the case in the DPP’s appeal. “The consequences of neglect or refusal to give reasons are there for all to see in this appeal,” Justice Mosito said.

In a different case, the Apex Court maintains that the High Court’s failure to furnish reasons for its decisions can be solved by the Chief Justice. Judge Westhuizen argues that the practice by the High Court judges not to avail reasons could result in the collapse of the rule of law. “The continuation of the failure by High Court judges to furnish proper reasons for judgements, sometimes even after being repeatedly requested to do so, could result in the collapse of the rule of law in Lesotho or any other country with a tradition of reasoned court judgements. Thus the Chief Justice of Lesotho is obliged to urgently attend to this problem.”


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