High Court judges drop ACJ case

 Foreign bench sought to decide impeachment trial

 RELEBOHILE TSOAMOTSE

MASERU – The High Court of Lesotho plans to enlist the services of foreign judges to preside over a case in which the head of the judiciary, Acting Chief Justice (ACJ) ’Maseforo Mahase’s impeachment is sought. This, after all High Court judges recused themselves from presiding over the case. ACJ Mahase had asked for the recusal of the whole High Court bench for fear of bias.

She had argued the judges’ bias would result mainly from the fact that as the ACJ, she is the chairperson of the Judicial Service Commission (JSC) and has to deal with complaints from members of the public about the same judges and institute disciplinary measures against them.

All Basotho Convention (ABC) Secretary General, Lebohang Hlaele, wants the High Court to order the impeachment of Justice Mahase as a judge of the High Court. However, Judge Mahase argues the High Court bench has interest in the case and, therefore, cannot preside over the case.

In an affidavit, Justice Mahase leveled a number of complaints against all judges, save for Justice Teboho Moiloa and two unnamed junior judges, and has since asked for an order that foreign judges be appointed specifically to preside over her impeachment case.

In one allegation Justice Mahase claimed Justice Mokhesi is preferred by registrars, reasoning “Justice Mokhesi is one of the junior judges having been recently confirmed as a judge. He too is a preferred judge dealing with (one of the) cases which I maintain to date, … was irregularly dealt with by the Court of Appeal.

“I have and I am still wondering why he was the one preferred judge by the registrar or deputy registrar to preside over that whilst there are numerous judges far senior to him. I smell a rat here.” She also stated that Justice Makara has over time refused to deal with civil matters, while Justice Nomngcongo disregards 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 non-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.”

She had also said Justice Makhooane was unhappy with her appointment as the acting chief justice because she (Makhooane) is friends with Justice Majara. Attorney General (AG), Haae Phoofolo, backed her and said all High Court judges ought to recuse themselves from the case due to the 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 polarized on political lines, the public was always going to be suspicious of any outcome of the case.

Justices Tšeliso Monapathi, Semapo Peete and Keketso Moahaloli were initially seized with the recusal application but on November 2019 recused themselves.

However, they refused to order that foreign judges be appointed to hear the case saying High Court judges were not only able but that they were competent and fit to preside on the case.

In their judgment, the judges said their recusal was made in the interest of justice, saying “the decision to recuse ourselves is prompted by our feeling that in this case, justice needs not only to be done but must be seen to be done.”

They added: “It is our firm decision that having regard to all recognized 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.”

After their recusal, the file moved from one chamber to the other, with judges declining to preside.

First it went to Justices Thamsanqa Nomncongo, Teboho Moiloa and Polo Banyane.

Judge Nomncongo declined to preside saying a complaint has been raised about him, while judge Moiloa said he was finalising judgments before him as he is soon to retire. Justice Banyane did not disqualify herself from presiding and remain the only High Court judge now seized with the case.

At least three High Court judges sit to set up a Constitutional Court and therefore, the Registrar, Advocate ’Mathato Rasekoai, of the High Court is currently making arrangements to secure two South African judges who will sit with Judge Banyane.

High Court Assistant Registrar, Advocate Staford Sharite, told Public Eye on Monday that all High Court judges have recused themselves on the case and that the office of the registrar is looking for foreign judges to sit with judge Banyane.

He, however, did not divulge other details saying he needed to consult on the matter.

“I will need to consult on the issue but all judges have declined to preside on the case and the office of the Registrar is already in talks with South Africa to secure judges who will assist in this regard,” he said. Sharite had in a previous interview told Public Eye that in the event that all judges recuse themselves, they might be forced to look for foreign judges. The delay in the case resulted in former Prime Minister Motsoahae Thabane seeking to confirm ACJ Mahase as substantive Chief Justice but King Letsie did not confirm the appointment.

This was after a lawyer representing Hlaele wrote to His Majesty informing him about the pending case as well as an interlocutory application that seeks to prevent the appointment pending the main hearing. The interlocutory application is an interdict application to prevent the prime minister from confirming Judge 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.

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