Mohalenyane Phakela
THE case in which the Law Society of Lesotho seeks to block Prime Minister, Thomas Thabane, from removing Kananelo Mosito as Court of Appeal president failed to be heard in the High Court on Tuesday after an urgent application by Attorney General Advocate Haae Phoofolo King’s Counsel and Acting Chief Justice ‘Maseforo Mahase, seeking recusal of all local judges from the case.
Justice Mahase is cited as one of the respondents in the Law Society’s application. The lawyers’ body successfully sought her recusal from hearing the matter in July this year in the Court of Appeal.
Furthermore, All Basotho Convention (ABC) secretary general, Lebohang Hlaele, also filed a case in August seeking the impeachment of Justice Mahase as a judge.
It was against the background of the two cases that Adv Phoofolo KC and Justice Mahase filed an urgent application seeking recusal of local judges from presiding over the two matters citing that they were compromised.
The Law Society’s matter on Tuesday was before Justices Thamsanqa Nomngcongo, Moroke Mokhesi and Keketso Moahloli but was held in chambers.
Law Society’s lawyer, Advocate Monaheng Rasekoai on Tuesday told this publication that the matter had been postponed to 2 October 2019 in order to hear Adv Phoofolo KC and Justice Mahase’s application first.
“We had to postpone in order for the (Acting) Chief Justice’s matter to be heard first and it has been allocated the 2 October 2019 date because we are yet to file our heads of argument,” Adv Rasekoai said.
Justice Mahase does not want her fellow judges to preside over a case in which Mr Hlaele wants the constitutional court to compel the Judicial Service Commission (JCS) to remove her.
She says that her colleagues were unfit to preside over this case because the country was presently polarised on political lines to an extent that the public was always going to be suspicious of the any outcome of this case.
In her supporting affidavit, Justice Mahase, said it was important for all local judges to recuse themselves from this case to avoid being vilified on social media and avoid any suspicion of biasness and both the reputation of the court and its judges being lowered.
“As Acting Chief Justice, I am the chairperson of the JSC and as such, I have to deal with numerous complaints from members of the public about judges of the High Court. I also, in that capacity in the JSC, have (a) mandate, together with other members, to also deal with the discipline of some of my colleagues who are currently presiding over this case.
“Obviously, whatever negative or adverse decision the JSC may come to in the future, the concerned judge may feel that the JSC may have been adversely influenced by the chairperson because that particular judge may have presided over this matter. Consequently, I aver that this is a case where all judges of the High Court bench have to recuse themselves so that aspersions are not cast in the future,” Justice Mahase said.
In the 10 July application, the Law Society’s Adv Kabelo Nyabela states that the premier’s move was without merit and “constitutes a bare and naked interference with the independence of the judiciary”.
“The cause for complaint by the prime minister is entirely the manner in which the Court of Appeal made decisions/rulings in certain appeals that came before the court and/applied rules of that court as well as the enforcement of the rules of the said court. All these matters are within the domain, purview and competence and function of the Court of Appeal and have nothing to do with the inability to perform one’s functions or misconduct.
“The directive of the prime minister constitutes a bare and naked interference with the independence of the judiciary entrenched under section 118 (2) of the constitution as well as the contravention of the hallowed doctrine of separation of powers. Such a directive from the prime minister is a serious threat to the rule of law and constitutionalism and is arbitrary and an abuse of powers,” the Law Society states in its court papers.
The Law Society also wants Justice Mahase interdicted “forthwith from continuing to allocate any case or matter, including the present matter, or to exercise case management function, pending the final determination of this application and/or any appeal therefrom”.
The Law Society also wants Dr Thabane’s intended recommendation to His Majesty King Letsie III for the suspension of Justice Mosito to be declared a “violation of the Constitution of Lesotho 1993’s doctrine of the separation of powers”.
