- argues King should never have been enjoined as co-applicant in her case
Mohalenyane Phakela / Pascalinah Kabi
ALL Basotho Convention (ABC) secretary general, Lebohang Hlaele, has blasted Acting Chief Justice ‘Maseforo Mahase and Attorney General Haae Phoofolo, for enjoining King Letsie III as a co-applicant in a controversial case in which Judge Mahase is seeking the recusal of Lesotho’s entire High Court bench from hearing an impeachment bid against her.
Mr Hlaele accused Justice Mahase and Adv Phoofolo of creating a constitutional crisis by unprocedurally including His Majesty as a co-applicant in her application for the recusal of all local judges from the impeachment case.
His Majesty, Prime Minister Thomas Thabane, Adv Phoofolo and the JSC are listed as co-applicants in Justice Mahase’s application. Mr Hlaele and the Law Society of Lesotho are cited as the respondents. Mr Hlaele brought the case for the impeachment of Judge Mahase over her gross incompetence and for various acts which the secretary general says put the judiciary into disrepute.
Mr Hlaele alleged that King Letsie III had been included as a co-applicant by Justice Mahase and the Adv Phoofolo without his consent. He said the entire High Court bench whose recusal was sought by Justice Mahase, was appointed by King Letsie III and it was inconceivable that His Majesty would therefore “join in the crusade of Acting Chief Justice” to “express the lack of confidence in the very bench which was appointed by himself”.
Mr Hlaele also alleged that by seeking the recusal of local judges on the grounds that they could be biased against her, Justice Mahase had effectively brought the entire judiciary into disrepute and this was reason enough for her to be impeached.
The ABC secretary-general said this in the answering affidavit he filed this week in response to Justice Mahase’s application for the recusal of all judges from presiding over his (Mr Hlaele’s) application for an order to compel the Judicial Service Commission (JSC) to impeach Justice Mahase.
In an unprecedented move a fortnight ago, Justice Mahase launched a broadside against most of her fellow judges, essentially accusing them of incompetence.
She said her colleagues are unfit for purpose. She called for all of them to recuse themselves in the case in which Mr Hlaele is determinedly seeking her impeachment. She alleged that Justice Lineo Chaka-Makhooane was unhappy with her because the latter was a “close friend’ to the suspended Chief Justice Nthomeng Majara.
She also accused other judges – Justices Thamsanqa Nomngcongo, Tšeliso Monaphathi, Keketso Moahloli and Molefi Makara – of refusing to take orders from her. She therefore wants the recusal of the entire bench in favour of foreign judges.
Justice Mahase said her comments were neither meant to hurt any of her colleagues in any way nor cast aspersions on them but were just dealing with the reality currently obtaining in the country.
However, in his replying affidavit this week, Mr Hlaele accused Justice Mahase of bringing the entire judiciary into disrepute with her allegations that local judges were incompetent.
Mr Hlaele said it was unheard of for anyone to seek the recusal of all of the country’s judges and to make “unfounded” allegations that they will be biased when presiding over a case involving a fellow judge.
“This (Justice Mahase’s) application is based on unfounded, unsupported and irrelevant facts which were only meant to attack and undermine the decorum and integrity of the presiding judges and other High Court judges mentioned in her affidavit,” Mr Hlaele states in his answering affidavit.
“She (Justice Mahase) has effectively put the judiciary into disrepute by her very own depositions. The application is a ruse aimed at frustrating the finalisation of the main case (Hlaele’s application for Justice Mahase’s impeachment).
“The Acting Chief Justice is not the boss of other judges. She is the administrative head of the judiciary but not placed to direct the judges in the determination of cases placed before them. Each of the judges enjoys functional autonomy in the exercise of their judicial functions and they have ascribed to a constitutional oath of office in this regard. It is highly concerning for the attorney general to make such a wanting and wrong statement of fact about the judiciary.
“The recusal of the entire Lesotho bench attracts institutional recusal and does not have any support in our constitutional setting. There is no authority in this jurisdiction or even globally which supports the institutional recusal or incapacitation of an entire institution of the High Court for foreign judges on the logic that they bear the potential of being impartial. History in this jurisdiction clearly proves that this is not the first case which involves a local judge and was presided over by local judges.”
Mr Hlaele also said that Justice Mahase’s decision to disclose confidential information of the JCS in relation to disciplinary action instituted against Justice Moahloli spoke volumes about her incompetence and unfitness to lead the judiciary.
“The Acting Chief Justice abused her official mandate to disclose privileged and confidential information of a respected body such as the JSC to motivate the current application for recusal.
“She is the chairperson of the JSC with wide powers which include being privy to sensitive and confidential information about the entire judiciary. This (disclosure of such information) was done without any clear authorisation.
“This is clearly legally reprehensible and is yet another grounds (sic) for the very impeachment sought in the main case. It speaks volumes about her competence and capacity to lead such an important constitutional institution.”
Mr Hlaele also accused Justice Mahase of creating a constitutional crisis by unprocedurally adding King Letsie III as a co-applicant in her recusal application.
He said the entire High Court bench, whose recusal was sought by Justice Mahase, was appointed by King Letsie III and it was inconceivable that His Majesty would therefore “join in the crusade of Acting Chief Justice” to “express the lack of confidence in the very bench which was appointed by himself”.
“It is clearly regrettable if not inconceivable why the head of state (King Letsie III) who has the mandate to appoint members of the (impeachment) tribunal has been cited as a co-applicant in the current application when the nature of the relief sought aims to facilitate the performance of his constitutional mandate.
“I therefore take strong exception to the office of His Majesty and the JSC being embroiled in this litigation and being made to take the corner of the embattled acting chief justice. This legally reprehensible approach has effectively created a constitutional impasse where the head of state, head of government, principal legal advisor of the government (Adv Phoofolo) and a critical institution ironically chaired by the acting chief justice (the JSC), collude to prevent the enforcement of discipline of a highest ranking judge.
“All judges are appointed and removed by the King. It fails to meet logic why His Majesty would join in the crusade of the acting chief justice and become a co-litigant in a matter where the attorney general in alliance with the acting chief justice to express lack of confidence in the very bench which was appointed by himself.
“I deny that the office of His Majesty, which is the appointing and removing authority of judges, authorised the institution of the application for the recusal of the entire bench of Lesotho,” Mr Hlaele states.
He also argues that it is unlawful for the state to incur Justice Mahase’s legal expenses and that His Majesty, Adv Phoofolo and others should have not been joined as applicants in the matter.
“A disturbing feature of the application is that all parties are represented by a single legal team in spite of their conflicting interests and mandates. It is inconceivable why the acting chief justice would be legally represented at the state’s expense over actions which are directly impacting on her as a person.
“I aver that the acting chief justice is sued in her personal capacity as has happened with other senior judges in this jurisdiction and who never enjoyed the institutional support of government. The government and other public institutions which have been cited in the litigation have no interest in the matter and their citation as co-applicants attracts a huge element of unlawfulness.
“The attorney general’s office plays an instrumental role in the impeachment process and it is clearly conflicted by being in league with the acting chief justice over her personal litigation unrelated to her constitutional functions,” Mr Hlaele states.