Judicial Service ce Commission snubs Mosito
. . . as Judicial Service Commission rejects judges proposed by court president Justice Kananelo Mosito
THE 2015 first session of the Court of Appeal which had been scheduled to start on Monday next week has been suspended indefinitely after the Judicial Service Commission (JSC) rejected a proposal by the head of the court to bring four foreign judges to sit on the bench.
Acting Registrar of the High Court and Court of Appeal, Lesitsi Mokeke yesterday confirmed the new unsavory turn of events to have afflicted the apex court since Justice Kananelo Mosito was appointed its president in January this year.
“The first Court of Appeal session of the year, which was scheduled to start on Monday, 20 April, will no longer proceed.
“The reason is that the Judicial Service Commission — in its sitting last week — did not approve the names of judges proposed by its president to join the bench in that court.
“The JSC had some concerns about the proposal and I cannot get into the merits of that issue, but yes, the session will not proceed,” Advocate Mokeke said.
Advocate Mokeke, who is also the JSC secretary, said he could not reveal the names of the judges.
“I can only say they all come from different countries in Africa including South Africa,” he added.
However, Justice Mosito on Tuesday this week wrote to Advocate Mokeke in response to his letter dated 10 April, 2015. In the letter, Advocate Mokeke had informed Advocate Mosito about the JSC’S disapproval of the proposed judges.
In his lengthy letter copied to the Chief Justice, Minister of Justice Vincent Malebo, Private Secretary to His Majesty Mabotse Lerotholi, Attorney General Advocate Makhethe, Director of Public Prosecutions (DPP) Leaba Thetsane, President of the Law Society Advocate Shale and all legal practitioners, Justice Mosito criticised Attorney General Tšokolo Makhethe for “illadvising” the JSC, which he believed led to the rejection of his proposal.
Justice Mosito related how he had fallen out with Advocate Makhethe, and why he believed this was the reason why the JSC turned down his proposal.
Justice Mosito noted: “I was appointed President of the Court of Appeal on 15 January 2015, and sworn-in on 27 January 2015.
“I should mention that prior to my swearing-in, there were five legal practitioners who had issued a statement that they were opposed to my appointment and yet they did not give me a copy of the said letter.
“They also did not bother to speak to me about the issue for reasons best known to themselves.
“They were however determined to oppose my appointment at all costs.
“Apparently, upon realising that they had no locus standi to challenge the appointment, they then involved the Attorney General in the matter.”
The five lawyers he was referring to were King’s Counsel Salemane Phafane, Motiea Teele, Zwelakhe Mda, Karabo Mohau and Attorney Qhalehang Letsika.
Justice Mosito continued: “Apparently, when all attempts had failed for the five lawyers to shoot down the appointment, the Attorney General emerged and allegedly wrote a letter to the Prime Minister on the eve of the swearing-in, in which he was requesting the latter to discuss the matter with him.
“Subsequently, the Attorney General (Mr Makhethe) filed a constitutional motion in which he sought to have the appointment nullified. This attempt failed.
“It is not beyond suspicion that Mr Makhethe did this to pursue the agenda of the five lawyers who apparently did not have the necessary locus standi to challenge both the appointment and swearing-in.
“This was so after the Law Society had pronounced itself that as far as it was concerned, there was nothing illegal or unconstitutional about the appointment.”
Justice Mosito further said the Attorney General then “purported to play the role of the Law Society by arrogating upon himself the function of protecting the administration of justice and legal profession.
“These two functions are clearly in law not the functions of the Attorney General but those of the Law Society.”
The judge also noted after the Constitutional Court ruled against Advocate Makhethe’s application he did not immediately appeal the ruling.
This, Justice Mosito added, gave him the greenlight to prepare for the 20 April-5 May session after four South African judges had resigned, allegedly in protest over his ap- pointment as Court of Appeal president.
He further noted: “As a result, preparations involved an honorous duty on the President of the Court of Appeal to recruit foreign judges to complement the High Court judges in order for the Court of Appeal to sit.
“The recruitment process involves a num- ber of steps, beginning with the identification of the right-calibre of the judges and submission of such names to the Judicial Service Commission for consideration and, for the JSC if it approves, to recommend their appointment to His Majesty the King.”
Justice Mosito stated that he encountered problems from the Registrar of the High Court and Court of Appeal (Mr Mokeke) in his recruitment process because the registrar told him that there were no funds to cater for foreign judges.
He argued the Registrar’s refusal to release funds for the recruitment of the judges was clear sabotage.
“I must again point out that when I was told that there was no money, this was clearly not correct because there was money in the coffers of the Court of Appeal of which I have no doubt the Registrar was aware and in the sum of M1, 674,377.56.
“This amount had been budgeted for the Court of Appeal and had not been used.
“It would be difficulty therefore not to conclude that to have said that there was no money when there was this amount still lying in the coffers of government under the Court of Appeal vote was in fact part of a concerted effort to frustrate and sabotage the sitting of the Court of Appeal for the April 2015 session,” the judge said.
Justice Mosito also said he wrote a letter to Chief Justice Nthomeng Majara on 24 March 2015 advising her to call a JSC meeting and consider the names of judges to be appointed to the apex court.
This he said, was followed by Advocate Mokeke’s letter informing him that the Commission rejected his proposal the previous day.
However, Justice Mosito says Advocate Mokeke did not explain to the JSC why four judges had to be appointed to the bench.
The JSC, he added, acted as if it was not aware that four judges had resigned from the Appeal Court following his appointment.
He also blames Advocate Makhethe for the JSC’S decision to reject his proposal on the grounds that six judges were still on the Court of Appeal bench.
“The most disturbing part is that from the elucidation given, it was the Attorney General who came up with these observations.
“The Attorney General was clearly not being honest with the Commission when he made the above comments,” he stated.
He further criticised the JSC for disregarding Chief Justice Majara’s statement to the commission on the resignation of the four judges.
“The reason given was that the commission did not wish to receive such an explanation from the Chief Justice, but the President of the Court of Appeal who was the party requesting the appointment of the Justices of Appeal.
“The problem with this approach is that the Chief Justice is the Head of Judiciary in Lesotho and the Attorney General and all other learned members of the JSC present in that meeting ought to have known better,” he argued.
“The Attorney General should have known better and it was not for him to come up with a preposition of this nature.”
Justice Mosito further charged that the Attorney General was fighting his political battle using his portfolio within the JSC.
“From the elucidation given by the Secretary of the Commission (Advocate Mokeke) upon the above grounds advanced by the commission for the stance it took, it is apparent that Mr Makhethe had taken his personal political agenda into the very heart of the JSC, thereby frustrating the commission in carrying out its constitutional mandate,” he stated.
Cancelling the session, Justice Mosito declared: “It is therefore with a heavy heart that I write to inform all concerned that the Court of Appeal will not be able to sit for the session scheduled to start on 20 April, 2015.
“In addition, the Attorney General (Mr Makhethe) should not have sat as a member of the JSC in a case in which he had a personal interest.
“In the past, the Deputy Attorney General has sat where the Attorney General himself could not for in so doing, he would be acting as the Attorney General.”
The President of the Law Society of Lesotho, Advocate Shale Shale said the suspension of the Court of Appeal session amounted to frustrating justice.
“This is serious and we must do something about it. It means people are now being denied access to justice simply because of personal issues that can be resolved.
“We really don’t understand why people cannot just sit and resolve whatever problems they might be having.
“It is indeed not proper that the Law Society is not represented in the JSC, yet it is considered the custodian of the legal profession.
“However, the Society will meet early next week to discuss and agree on what to do to address the issue. It might be by way of litigation or any other means that members of the Law Society might deem necessary,” he said.
Contacted for a comment yesterday, Advocate Makhethe said it was premature for him to make a statement on the issue.
“I got a copy of that letter and read it. But I feel it is premature for me to make a statement in reaction to it.
“Actually, this letter is for the JSC. It is only best that I wait until we discuss it in the JSC where it belongs,” he said.
Meanwhile, the suspended Court of Appeal session was supposed to hear 38 cases — 32 civil and six criminal.
From the elucidation given by the Secretary of the Commission (Advocate Mokeke) upon the above grounds advanced by the commission for the stance it took, it is apparent that Mr Makhethe had taken his personal political agenda into the very heart of the JSC, thereby frustrating the commission in carrying out its constitutional mandate
Appeal Court president Kananelo Mosito (KC).