THE much-anticipated case between suspended Chief Justice Nthomeng Majara and Prime Minister Thomas Thabane failed to kick off yesterday due to a last-minute cancellation of the engagement of South African judges to hear the case.
Justice Majara filed the court application in May this year, seeking to interdict Dr Thabane from recommending her suspension and the appointment of a tribunal to try on various charges of misconduct. It was then that the three South African judges were allocated to hear the case which had been set for 26 September (yesterday).
However, the case did not proceed yesterday after the Acting Chief Justice ‘Maseforo Mahase allegedly ordered that the three judges should not be engaged to preside over the case.
This is according to an email which Advocate Qhalehang Letsika sent to the Acting High Court Registrar, Pontso Phafoli last week, expressing his dismay at the last-minute cancellation of engagement of the three judges.
“Dear Adv Phafoli, I acknowledge receipt of your email correspondence and note with concern the contents,” Adv Letsika said in the email.
“We know that in terms of the current working system once a matter has been allocated judges, the Chief Justice cannot just re-allocate the matter without valid reasons. Your correspondence further mentions that the matter will be heard once the new panel is established.
“I take it that you mean a new panel will be constituted for this matter. Kindly therefore let us know why the existing panel (of judges) has had to be changed. Kindly let us know why the honourable Acting Chief Justice felt that the matter had to be re-allocated.
“In the same way kindly let us know if you impressed upon the honourable Acting Chief Justice that government as early as June 2018 wanted the mater to be concluded by the same June 2018 because all the sides were agreed that the matter had to be dealt with on urgent basis.”
Adv Letsika insisted that this was one matter that ought to be dealt with urgently in the interests of all the parties involved. He further requested to have a meeting with Justice Mahase to discuss the matter, insisting that “we be given reasons for the change of the panel of judges and the change to dates of hearing”.
Justice Mahase however, hit back by saying it was the prerogative of the Chief Justice to administer and allocate business of the court to resident or foreign judges and therefore no one could dictate to her how the matter should be handled.
Justice Mahase’s response is contained in a letter signed by Ms Phafoli.
“The re-allocation of this matter is brought about by the non-availability of one of the panelists, namely Honourable Justice Rampai. He therefore has to be replaced by Honourable Justice van Zyl. Further, it must be re-emphasised that it remains the legal prerogative of the Chief Justice to re-constitute the panelists as long as the case is not a part-heard to suit prevailing circumstances and there is ample precedence in this regard.
“The scheduled date of the 26th instant, has been unilaterally set by the honourable judges themselves… Furthermore, the (26 September) date had not been agreed to by all parties. It was yet to be confirmed by the respondents and communicated back to the panel for their confirmation.
“Finally, the honourable Chief Justice directs me to inform you that her office regrets that it sees no valid reason for yourselves to seek a meeting with the honourable Acting Chief Justice alone, whilst in actual fact you should have sought the attendance and concurrence of the other side (the respondents) in the matter, for obvious reasons,” reads the letter signed by Ms Phafoli.
She emphasised that it was “impractical” and “not prudent” for the court application to proceed yesterday.
Despite her spirited efforts, Justice Majara was recently suspended from office by His Majesty King Letsie III, on the advice of Dr Thabane. She was suspended from office with effect from 11 September 2018.
The suspension paves way for a three-member tribunal to try her over a litany of misconduct charges including her alleged failure to ensure the timeous delivery of justice.
King Letsie III, acting on the advice of Dr Thabane, has since appointed High Court judge, Justice ‘Maseforo Mahase, as the acting Chief Justice. King Letsie III has also appointed three experienced judges from Uganda, Tanzania and Zimbabwe to the tribunal to hear the misconduct charges against Justice Majara.
The three members of the tribunal are Ugandan judge Frederick Egonda-Ntende (who was appointed Seychelles Supreme Court Chief Justice in 2009), Tanzanian judge Augustino S. L. Ramadhoni (who was elected to the African Court on Human and People’s Rights in 2010) and Zimbabwe’s former Minister of Justice and High Court Judge Simbi Mubako.