By Nat Molomo
MASERU — A panel of three High Court judges has decided that the relief sought by Court of Appeal judge Justice Michael Ramodibedi, be referred to the Constitutional Court.
This means the court has upheld the crown’s submissions.
Acting Chief Justice Tšeliso Monaphathi, who read the ruling on behalf of the panel said: “It is proper that this panel as constituted should not deal with the matter,” he said.
The matter was referred to September 24, when the constitutional court judges will be available.
“We have unanimously come to the conclusion that the relief sought is constitutional and once we deal with the matter, we must decide it,” Acting Chief Justice Monaphathi, who chaired the panel consisting of Justice Semapo Peete and Justice ‘Maseforo Mahase, announced the ruling yesterday.
The ruling followed an application filed by Justice Ramodibedi in which he is challenging Prime Minister Thomas Thabane and three retired South African judges who constitute the tribunal to impeach him.
Justice Ramodibedi said His Majesty’s decision to suspend him must be reviewed and set aside.
The ruling followed fierce arguments between Advocate Salemane Phafane KC, one of the counsel representing Justice Ramodibedi and the counsel for respondents Advocate Sipho Mdhluli. Mdhluli challenged the jurisdiction of the court saying he believes that in terms of rules of constitutional litigation, the court should be properly constituted.
But Justice Monaphathi said the court was sitting as a constitutional court to deal with the interim order as the judges to deal with the matter on the return date will be available next week. But Mdhluli was not satisfied asking whether the court wanted to deal with matter piecemeal.
He argued that if the court wanted to proceed with the matter, he would have to make an application to go and consider “otherwise I will go ask you to recuse yourself”, Mdhluli said.
Advocate Phafane rose and submitted: “our submission is that this court is properly constituted,” he said, indicating that the court is dealing with the interim relief sought at this stage.
Phafane submitted that what will happen at the return date is another matter.
He contended that where an application is brought on an urgent basis it can be heard even by a single judge or a panel to deal with the relief sought.
“You deal with urgent applications when they come because you are on call,” argued.
Phafane told the court that a judge could even sit as a single judge and that would be normal.
He said otherwise it would be a miscarriage or delay of justice if urgent applications are not heard, having to wait for people who are absent.
Asked by Judge Mahase whether this would still be prudent to sit as they do when other judges had been appointed, Phafane replied: “It is very much prudent and there is nothing that prevents you from dealing with the matter.”
He said it is not only prudent, but more incumbent to the litigants do deal with the matter as long as they deal with the merits.
This, he said, is the first stage of inquiry and the second stage of inquiry will be on the return date when the matter will be argued to finality on the merits.
The crown, in its conclusion submitted that the court should refer the matter to the constitutional court on the grounds that it has no jurisdiction.
“I do not agree that you are a constitutional court. You are a High Court sitting in ordinary jurisdiction,” Mdhluli said.
“We are merely saying to the court be persuaded that you are not competent to deal with this matter. He implored the court to submit the matter to the constitutional court as no two courts can deal with the same matter. Advocate Salemane Phafane KC, Advocate Zwelake Mda KC and Advocate Sakoane Sakoane KC appeared for Justice Ramodibedi.
For the Crown, Advocate Mdhluli and Advocate Lerato Makholela and Advocate Khotso Nthunthu appeared for respondents.
