Ju­di­cial Ser­vice ce Com­mis­sion snubs Mos­ito

. . . as Ju­di­cial Ser­vice Com­mis­sion re­jects judges pro­posed by court pres­i­dent Jus­tice Kananelo Mos­ito

Lesotho Times - - Front Page - Lekhetho Nt­sukun­yane and Tefo Tefo

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).

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