Court blocks Hla­joane ap­point­ment

Lesotho Times - - Front Page - Tefo Tefo

THE gov­ern­ment has been dealt yet an­other le­gal blow af­ter Jus­tice Tšeliso Mon­a­p­athi ruled that Jus­tice ‘Mase­shophe Hla­joane should not as­sume of­fice as act­ing pres­i­dent of the Court of Ap­peal af­ter her ap­point­ment to that of­fice last week.

This fol­lows a con­sti­tu­tional chal­lenge by three prom­i­nent lawyers who ar­gue that the ap­point­ment of Jus­tice Hla­joane vi­o­lates the con­sti­tu­tion be­cause she was ap­pointed when the gov­ern­ment had al­ready ap­pointed a South African judge, Jus­tice Yvonne Mok­goro, to the same po­si­tion on 27 Fe­bru­ary this year.

The lat­est set­back fol­lows the one which the gov­ern­ment suf­fered af­ter the Con­sti­tu­tional Court last month ruled against the re-ap­point­ment of Jus­tice Kananelo Mos­ito af­ter an ap­pli­ca­tion by lawyers Motiea Teele, Zwe­lakhe Mda, Karabo Mo­hau and Qhale­hang Let­sika.

The quar­tet had chal­lenged the ap­point­ment of Jus­tice Mos­ito on the grounds that he had pre­vi­ously been im­peached for mis­con­duct.

The Con­sti­tu­tional Court, com­pris­ing of three for­eign judges, up­held their ap­peal, say­ing that Jus­tice Mos­ito “is not a fit and proper per­son” for the top job.

Court pa­pers show that af­ter the Jus­tice Mos­ito set­back, the gov­ern­ment im­me­di­ately moved to ap­point Jus­tice Yvonne Mok­goro as the Act­ing Pres­i­dent of the Court of Ap­peal on 27 Fe­bru­ary 2018.

Jus­tice Mok­goro is a South African na­tional who sits on the Court of Ap­peal.

How­ever, Jus­tice Mok­goro’s be­came a short-lived ap­point­ment as the court pa­pers fur­ther indi- cate that Prime Min­is­ter Thomas Tha­bane, ad­vised His Majesty, King Let­sie III to re­place her with Jus­tice Hla­joane with ef­fect from 20 March 2018.

It was on this ba­sis that the trio of Mda, Mo­hau and Let­sika once again pe­ti­tioned the Con­sti­tu­tional Court last Fri­day to have the re­moval of Jus­tice Mok­goro re­versed and her re­place­ment with Jus­tice Hla­joane de­clared null and void.

The trio ar­gued that the ap­point­ment of Jus­tice Hla­joane, who is cur­rently serv­ing as a se­nior judge in the High Court, is un­con­sti­tu­tional as it vi­o­lates pro­vi­sions stat­ing that an in­cum­bent (in this case Jus­tice Mok­goro) can only be re­moved af­ter a tri­bunal has been set up and rec­om­mended the re­moval.

They cited Jus­tice Hla­joane, Dr Tha­bane, the Min­is­ter of Law and Con­sti­tu­tional Af­fairs, Le­bo­hang Hlaele, the Min­is­ter of Jus­tice and Hu­man Rights, Mokhele Mo­let­sane, At­tor­ney Gen­eral King’s Coun­sel Haae Phoofolo, Jus­tice Yvonne Mok­goro and His Majesty the King as first to sev­enth re­spon­dents re­spec­tively.

The trio had pe­ti­tioned the court to sus­pend the swear­ing-in of Jus­tice Hla­joane as act­ing pres­i­dent of the Court of Ap­peal and they wanted her to be stopped from dis­charg­ing the func­tions of the Court of Ap­peal pres­i­dent pend­ing fi­nal­i­sa­tion of the case, as an in­terim re­lief.

Sub­stan­tively, they want an or­der “that the re­moval of Madam Jus­tice Yvonne Mok­goro from of­fice as act­ing Pres­i­dent of the Court of Ap­peal is null and void and of no force and ef­fect to the ex­tent that it has not met and fol­lowed the pro­vi­sions of sec­tion 125 of the Con­sti­tu­tion”.

And on Tues­day, Jus­tice Mon­aphathi ruled that Jus­tice Hla­joane should not per­form the du­ties of act­ing pres­i­dent of the Court of Ap­peal un­til the case has been fi­nalised.

He, how­ever, did not set the date for hear­ing the sub­stan­tive case say­ing it would be set by the judges who will be cho­sen by the Chief Jus­tice Nthomeng Ma­jara.

The court pro­ceed­ings were char­ac­terised by dra­matic ex­changes be­tween the ap­pli­cants’ and the re­spon­dents’ lawyers.

Tem­pers flared af­ter the ap­pli­cants’ lawyer, King’s Coun­sel Motiea Teele, crit­i­cised Dr Tha­bane for con­tem­plat­ing crim­i­nal pros­e­cu­tion against the ap­pli­cants for “il­le­gally” ob­tain­ing the gov­ern­ment gazette that an­nounced the ap­point­ment of Jus­tice Mok­goro.

The ap­pli­cants sub­se­quently used the gazette as the ba­sis for the ap­peal against the sub­se­quent ap­point­ment of Jus­tice Hla­joane.

Adv Teele said Dr Tha­bane had ac­cused the three lawyers of il­le­gally ob­tain­ing the gazette from the gov­ern­ment print­ers.

“The Prime Min­is­ter says the ob­tain­ing of the gazette at­tracts the crim­i­nal jus­tice sys­tem to take its course against the ap­pli­cants,” Adv Teele said. He said Dr Tha­bane’s stance was wrong, since the gov­ern­ment gazette was merely a com­mu­ni­ca­tion tool to in­form the pub­lic about the ap­point­ment.

The ap­point­ment had al­ready been made the mo­ment the Prime Min­is­ter’s ad­vice on the ap­point­ment was ac­cepted by His Majesty King Let­sie III.

“The gov­ern­ment gazette is just a news­pa­per.

“It merely in­forms the pub­lic about what hap­pened when they (the Prime Min­is­ter and His Majesty) met in the palace where we can­not go. It does not con­sti­tute the ap­point­ment, but it only pub­lishes the ap­point­ment. Be­cause the ap­pli­cants are now threat­ened with ar­rests the mat­ter (court ap­pli­ca­tion) has to be dealt with ur­gently.

“The ap­pli­cants are not say­ing Jus­tice Hla­joane is a bad Judge but they are merely say­ing she was ap­pointed when Jus­tice Mok­goro was al­ready ap­pointed.

“If Jus­tice Mok­goro was in­deed ap­pointed, when was she re­moved?” Adv Teele asked.

“I have never seen in my ex­pe­ri­ence as a lawyer a Prime Min­is­ter who, in­stead of an­swer­ing the mer­its of the case, threat­ens peo­ple with crim­i­nal pros­e­cu­tion,” said Adv Teele.

The lawyer rep­re­sent­ing King Let­sie 111 and Jus­tice Hla­joane, Adv Mon­a­heng Rasekoai, agreed that the mat­ter was ur­gent but for rea­sons that were dif­fer­ent from those ad­vanced by Adv Teele.

Adv Rasekoai said it was im­por­tant that the mat­ter was dealt with ur­gently be­cause there were mem­bers of the pub­lic who wanted to see their cases pro­ceed be­fore the Court of Ap­peal and this was only pos­si­ble one there was a pres­i­dent of the court.

Ad­vo­cate Rasekoai also ar­gued that the ap­pli­cants un­law­fully ob­tained the gazette an­nounc­ing Jus­tice Mok­goro’s ap­point­ment and they ought to be pros­e­cuted as a re­sult.

“If they ob­tained the doc­u­ment con­trary to the law, they should face the law,” he said.

His sen­ti­ments were echoed by Dr Tha­bane’s lawyer, Adv Christopher Le­phuthing, who called for the pros­e­cu­tion of the ap­pli­cants on the grounds that they ob­tained the doc­u­ment that con­tained clas­si­fied in­for­ma­tion.

“The Prime Min­is­ter is not threat­en­ing ap­pli­cants as they claim. To him they are just or­di­nary three men.

“They must go to the po­lice and ex­plain how they ob­tained a clas­si­fied doc­u­ment. They should go and re­port them­selves to avoid the em­bar­rass­ment.

“The ap­pli­cants are a very dan­ger­ous group of peo­ple be­cause they ob­tain things crim­i­nally. By ob­tain­ing clas­si­fied doc­u­ments to desta­bilise the coun­try, they should be dealt with ac­cord­ingly.

“The Prime Min­is­ter says these three men are dan­ger­ous to the na­tion and se­cu­rity of this coun­try. Un­less this crim­i­nal be­hav­iour is dealt with ac­cord­ingly this court should not hear this case,” Adv Le­phuthing said.

Adv Teele replied by say­ing that he and the ap­pli­cants felt “in­sulted by our col­leagues call­ing us crim­i­nals”.

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