THERE are many reasons why judges and magistrates are the most important public officers in any nation. I would shudder to argue that a judge is more important than a Prime Minister or a President. Judges are mini-gods. They reign over us. A judge can determine the entire course of your life. He/she can send you to the gallows. He/she can sentence you to 30 years in jail (a sentence as good as a death sentence). He/she can determine the course of your entire life. Its judges who in the end determine the extent of civility of any modern state by the extent to which they uphold the rule of law. Any functional, developed prosperous democracies are underpinned by the rule of law and independent judiciaries as well as their own Scrutators or independent media. Any nation that takes itself seriously goes to great lengths to ensure that it appoints its very best legal brains, men and women of the utmost integrity, to the bench. It ensures that the appointment of judges is shielded from politics and ravenous politicians who always want to maintain pliant judiciaries for their own self-aggrandisement.
Above all, it’s important for magistrates and judges to understand their critical roles and take themselves seriously. I repeat; justice must not only be done, it must be seen to be done. It’s because of the indispensability and importance of magistrates and judges in any civilised society that I am keeping to this subject for the second week running and maintaining my deep reservations about what has been happening in our once esteemed judiciary.
I want to hope that Acting Chief Justice ‘Maseforo Mahase’s is seized with some serious soul searching and contemplating a positive way forward in light of the harm and damage she has inflicted on Lesotho’s judiciary. Fortunately, this harm and damage is repairable if she makes the right and honourable decision. More about that later.
Justice Mahase’s savaging by the Court of Appeal over her behaviour in the Mahao cases should have come as no surprise to anyone with a brain the fraction of a pea.
Make no mistake. Judges are only human. They make mistakes. Even though they are mini-Gods, they don’t possess magical, mystical or super natural powers. Their judgments must thus be subjected to thorough analysis, debate and criticism. As much as possible, any criticisms of judgments must be respectful and based on the merits of the law. Which is why ordinarily, Scrutator would have been worried about all the harsh epithets now being deployed against Justice Mahase. Some of them are so disrespectful. Others are plain angry. Others just stand out. In his latest salvo, Prof Mahao describes ‘M’e Mahase as “a disgrace to the legal fraternity” as well as a disgrace to National University of Lesotho which trained her. The same epithets are deployed against Thulo Hoane, the lawyer who prompted the “midnight” default application which purportedly nullified the ABC’s February congress.
The lawyer for the Mahao faction, ‘M’e Hlaele, the Prime Minister’s very own daughter, described ‘M’e Mahase as a judge with a very “colourful mind” aka a compromised judge. This is not how it ought to be. But judge Mahase has to shoulder the responsibility for bringing this upon herself. How can she possibly ever justify her conduct in the Mahao cases? In the end, it is not that she ruled against Prof Mahao that is the problem here. It is her entire conduct and jurisprudential approach. As Scrutator argued earlier on before the Court of Appeal affirmed my observations, anyone with an interest in the outcome of litigation must be served with process.
This is not even a legal rule, it is a common sense rule. How could Judge Mahase ever justify her default judgment without the Mahao faction being served with process when everyone, including our herdboys currently vacationing on Planet Nandos, know of the power struggle in the ABC. How could she do that when she had not ruled in the similar Lehana, Sello and Mohapinyane case before her? How could she be ill – unable to deal with this first case — while she was able to quickly recover and pass the default judgment in the Hoane (and his three unknown clients)? That she was going to be savaged by the Court of Appeal was obvious for all to see. Scrutator really thinks Justice Mahase has embarrassed the judiciary. There is only one way forward for her. She must recuse herself from being considered for the post of chief justice on a permanent basis. A more effective remedy for her would be to simply quit the bench. Judges must never exemplify bias. They must be fair to everyone appearing before them. How can Judge Mahase ever argue that she is not biased nor prejudiced against Prof Mahao? How can she ever inspire confidence as an unblemished leader of a crucial court?
But instead of doing the honourable thing and quitting, what does the judge do? She pens a long letter attacking Ntate Mosito, and accusing him of favouring Prof Mahao, because the Court of Appeal president works under Prof Mahao when he is lecturering at NUL. Scrutator has a problem with this Mahase perspective and believes ‘M’e is clutching at straws. Not least because what the Court of Appeal is saying is basic common sense. No appeal court anywhere in the universe would have upheld her embarrassing rulings. Not even a court from Planet Nandos. But let’s give her the benefit of doubt and assume a Mahao/Mosito nexus or close friendship and the need for recusal. What about the other four judges who savaged her rulings? Justices Philip Musonda (from Zambia), Petrus Damaseb (Namibia) and the Zimbabwean pair of Moses Chinhengo and Tafuma Mtshiya.
Are they also lecturers at NUL? Where they educated there under Mahao’s tutorship? Are they Mahao friends? The answer to all these questions is a big No. It all leaves Judge Mahase clutching at the proverbial straws.
Judge Mahase also makes a big deal of processes and procedures saying the court of appeal is hearing cases referred to it without leave of appeal from the High Court. She also accuses the Court of Appeal of interfering and bastardizing her office by stipulating timelines in which cases must be heard and by which judges. All her arguments in this regard are an exercise in sophistry. There is that overriding principle in law called “the interests of justice”. As an example in South Africa, Judge Mahase will know that if the situation demands it, any litigant can go to the Constitutional Court directly to vindicate their rights and bypass the hierarchy of the courts and all other processes “in the interests of justice”.
If Justice Mahase is such a stricter to procedure, why did she issue the nonsensical 8 May 2019 default order without a key interested party being served with process and when she was already handling a similar matter before her. The fact is the Court of Appeal has the right to suspend or overlook any formal procedure if the “interests of justice” demand it. Is Justice Mahase saying the matter should have been returned to her for a formal application for leave to appeal in terms of whatever section she claims. Then she would have taken her good jolly time to consider the matter, since she is supposed to be “ill”. What if she then only passed judgment one year on. Is that in the interests of justice.
The Court of Appeal has done nothing wrong in ordering her recusal from all things Mahao and in setting timelines for hearing the cases. It’s exactly what the interests of justice demands because of all the attempts we have thus far seen to try and subvert justice against Mahao.
Now Scrutator hears that there might be attempts to target Ntate Mosito again. If that happens, our country becomes a joke and banana nation. How can any self-respecting nation keep on changing judges like underwear. Those judges that must be changed or impeached are only those who are incompetent or don’t follow the spirit and purport of dispensing justice.
Rather than fight the Court of Appeal and pen fatuous letters, Judge Mahase must implement its rulings without any further ado. She must — as Scrutator had already said – recuse herself from all things Mahao. She must avoid greeting him if ever they meet in the streets. She must stop hating him. As she has already been advised, she must stop trying to please politicians to get confirmation. If and when Mahao eventually becomes Prime Minister, she must then prepare for her impeachment proceedings to begin in earnest. Unless of course she heeds my wisdom and quits the bench forthwith.
As for lawyer Hoeane, who masterminded the “midnight” default judgment, Scrutator would urge you to take yourself and profession seriously. A furious Justice Damaseb wanted to have you slapped with a personal costs order for masterminding all the stupid litigation that has now been overturned. The sooner you learn from this shellacking the better for your future in this profession. As for your claim that ‘M’e Mahase is senior to Ntate Mosito, I plead again for you to deploy common sense. If that was the case, its ‘M’e Mahase who would be overturning Ntate Mosito’s judgments not vice versa. As for those Basotho who are cheering ‘M’e Mahase, please be wise. What if one day the Mahao scenario happens to you and you get a judge who is openly biased against you. Will you expect justice in that scenario. We must all fight for fairness and impartiality of judges as a defining principle in line with the rule of law. We must all expect to get justice when we appear before the courts.
As for all other magistrates and judges, always know that we deserve and expect better from you. As for all in the ABC, the more you keep your matters in the courts, the more you are weakening and destroying your once venerable party. Salvation can only come from all your factions sitting down and trying to find each other. Not from jejune judges.