MASERU – The President of the Court of Appeal Dr Kananelo Mosito, whose name was dragged through the mud when Acting Chief Justice ’Maseforo Mahase viciously attacked him for reportedly undermining her, has hit back saying her conduct was unprofessional.
In a terse letter dated 29 May, 2019 Justice Mosito scoffed at Justice Mahase for perceived “inadvertence” and writing to him directly, saying this was a breach of protocol as “judges speak through judgments”.
“I acknowledge receipt of your letter dated 27 May 2019. The letter is addressed to the ‘Judge President’ instead of ‘The President of the Court of Appeal’. I suspect this was a result of inadvertence for the two titles are not the same thing,” he said.
Justice Mahase immediately shot back with an equal dose of sarcasm, stating: “I assure you, your Lordship ‘The President of the Court of Appeal’ that from now onwards. I will not inadvertently refer to you as I have now done.”
The latest round of barbs was triggered by a stinging assault Justice Mahase launched at Justice Mosito a fortnight ago, accusing him of duplicity in his dealings with the High court.
After seemingly refusing to be sucked into a bare knuckle fight, Justice Mosito told the ACJ concerns she had raised in a leaked letter, that exposed deep-seated animosity in the upper echelons of the judiciary, would be addressed “appropriately…in fullness of time”.
“The…letter addresses, amongst others issues that arose in cases that served before the Court of Appeal in the current and passed sessions and relating to the ABC.
“Professionally, Judges speak through judgments and provide their reasons therein. They don’t explain decisions through letters.”
Dr Mosito advised the ACJ to look out for the reasons for the appeal court’s assumption of jurisdiction, particularly in the contentious All Basotho Convention (ABC) appeals which she had raised concerns about in his judgment.
“In so far as issues raised on your letter are concerned, they will fully be ventilated when court’s reasons for its assumption of jurisdiction, where what was contested and orders it made on the issues in dispute are handed down on 31 May 2019,” wrote Justice Mosito.
Judge Mosito, however, declined to respond to justice Mahase’s views that he was compromised in the ABC cases because he had worked with embattled ABC deputy leader, Professor Nqosa Mahao at the National University of Lesotho, and that he should have recused himself from the case.
“As regards to other issues raised in your letter which bear no relationship to any issue which did not serve before the Court of Appeal, I reserve the right to reply appropriately thereto in the fullness of time.”
In her reply, Judge Mahase told Justice Mosito that she could not speak through judgements as the president had suggested as she had raised the concerns in her capacity as Acting Chief Justice and as the “head of the judiciary in Lesotho”.
“I only wish to point out that as for the professionalism you refer to, I could not speak to you through any judgment because, in essence, I wrote to you not as the judge sitting on the bench on any litigation but wrote it as Acting Chief Justice and in my administrative capacity as Head of the Judiciary in Lesotho,” Justice Mahase explained.
“I hope and sincerely wish that indeed the time will come when you and I will sit down and resolve and or work on the concerns which I say have raised as matters concerning the administration side of the courts,” she added.
Public Eye last night failed to get either Justice Mosito or ACJ Mahase to verify the authenticity of the letters, but President of the Law Society Advocate Tekane Maqakachana confirmed the correspondence although he refused to say more.
In her initial letter to Dr Mosito, Justice Mahase said she was concerned about the Appeal Court issuing orders which interfered with the administrative powers of her office.
Justice Mahase said she was also concerned about the Appeal Court entertaining appeals without leave of the High Court in its past two sessions.
Section 16 (b) of the Court of Appeal Act requires litigants to get permission from the High Court before approaching the apex court.
She referred to the ABC leadership case where the Appeal Court ordered that the matter be remitted to the High Court and be dealt with on its merits by a different judge.
Justice Mahase, in the letter, argued that the effect of the order was to recuse herself from the case without the benefit of the request being put before her.
She said the remittal of the matter was given despite the fact that it had not been requested, adding the Appeal Court heard the appeal cases by ABC without the High Court being served with the grounds of appeal.
“I wonder how, in the absence of service from the notice of appeal as indicated above, the basis of the Court of Appeal in assuming jurisdiction over the appeals, is?”
Justice Mahase also said she was concerned by the fact that the Appeal Court had issued timeframes within which the High Court should have disposed of a matter remitted to it by the Appeal Court.
“What then would be the consequences should the presiding judge and for reasons beyond one’s control, not complete that matter within the stipulated time by an order of the Appeal Court?
“Are we going to see the Appeal Court issuing contempt of court proceedings against High Court judges?” Justice Mahase asked.
When the Appeal Court remitted the ABC matter to the High Court and ordered the Registrar of the High Court to allocate the case to a new judge, Justice Mahase overturned the decision and allocated the matter to three judges.
She ordered that Justices Thamsanqa Nomncongo and Sakoane Sakoane sit with Judge Mokhesi to whom the registrar had already allocated the matter.
In her order, Justice Mahase said the Appeal Court judges in ordering that the Registrar enroll the matter before a different judge, may have not been aware of section 12 of the High Court Act no 5 of 1978 which outlines that the Chief Justice shall regulate the administration of business of the court.
She said in doing so, the Appeal Court then gave the Registrar of the High Court powers he does not have.
“Why the Lordship Justices overlooked section 12 of the High Court Act is only known to them,” she said.
She went on to tell Justice Mosito that he was compromised in the ABC matter because Professor Nqosa Mohao, who was one of the litigants, was his “boss” at the National University of Lesotho (NUL).
On Wednesday while addressing a media briefing, Maqakachane said regardless of the merits or demerits of the subject matters of the communication between ACJ and the apex court president, the mere fact of the existence of the toxic communication “does not augur well with the proper administration of justice as it may result in bringing the administration of justice into disrepute”.
Maqakachane pointed out that the kind of the communication has in the past resulted in a situation where the head of the Judiciary (Chief Justice) and head of the apex court had failed to work together in the interests of justice and the rule of law.
The squabbling is similar to the long-running feud that erupted between former Chief Justice, Justice Mahapela Lehohla, and former President of the Court of Appeal Justice Michael Ramodibedi between 2009 and 2013, over which of them was the head of the judiciary.
He said the bickering pair could have used appropriate means such as “meetings, telephone call or bilateral meetings or the intervention of a third party” to raise “concerns between the office of the Chief Justice and that of the President of the Appeal Court”.
“Failure or neglect to traverse these avenues is a sure trigger of spiraling our justice system, the judiciary and judicial officers further down into an already existing abyss of sociological illegitimacy towards our judiciary,” he added.
“Although it is an elementary principle that owing to hierarchy of our courts’ system and the hallowed doctrine of precedent, an order of the Court of Appeal – whether correct or wrong – binds the High Court, today we witness with great dismay, the total disregard of this principle.
“The fact of the High Court issuing… (an order) … that is inconsistent with the decision and order of the Court of Appeal is a fertile breeding ground for far-reaching and dire consequences for both the judiciary, as an institution, and to the consumers of legal services,” he said.
Maqakachane said a durable solution to the squabbling lies in reviving “rotten” democratic institutions that have become cesspits of corruption and a drawback to enhancing the rule of law.
It was common cause that most state agencies were packed with “weaklings” and not “men of character, men who cannot be bought or sold”.
Because of the corruption and incompetence hamstringing these institutions, matters that ideally should be resolved administratively spill into the courts, infecting the judiciary as well.
He called upon judges to “uphold the oath of office and to administer justice without fear, favour or prejudice in the interest of proper administration of justice and the rule of law”.
“The legitimacy of our courts in based principally on the continued trust which our people hold towards the courts. Without legitimacy, there is no respect to the courts; without respect, the rule of law is threatened; and without the rule of law, anarchy reigns supreme.”