Pascalinah Kabi
EMBATTLED Chief Justice Nthomeng Majara yesterday petitioned the High Court to order His majesty King Letsie III to revoke her recent suspension.
Justice Majara also wants the court to set aside the subsequent appointment of Justice ‘Maseforo Mahase as the Acting Chief Justice.
Justice Majara argued that her suspension violated a May 2018 order that was granted by High Court judge Justice Tšeliso Monaphathi.
Justice Monaphathi ruled that Justice Majara should not be suspended pending an application that the government intended to lodge for the recusal of South African judge, Lepono Lekale from hearing the case in which Justice Majara is seeking to prevent the government from suspending and/or removing her from office.
The government however, did not pursue the recusal application and according to the Attorney General, Haae Phoofolo, the interdict of May 2018 therefore no longer holds and the government can suspend Justice Majara.
Justice Majara’s latest court application follows last week’s decision by His Majesty to indefinitely suspend her on the advice of the Prime Minister, Thomas Thabane.
The suspension, which is with effect from 11 September 2018, paves way for a three-member tribunal to try Justice Majara over a litany of misconduct charges including her alleged failure to ensure the timeous delivery of justice.
Three experienced judges from Uganda, Tanzania and Zimbabwe were appointed 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. The suspension was announced in Justice Majara’s absence as she was in Australia attending a meeting of the Commonwealth Magistrates and Judges Association.
Justice Majara has since returned home and yesterday she filed a High Court application seeking the nullification of her suspension and the nullification of the subsequent appointment of Justice Mahase as the Acting Chief Justice.
The Prime Minister, the Minister of Law and Constitutional Affairs, Justice Mahase, the Attorney General and Justices Egonda-Ntende, Ramadhoni and Mubako are cited as first to eighth respondents respectively.
Justice Majara is seeking an order that “the sixth to eighth respondents are interdicted and prevented from convening (as a tribunal) and commencing proceedings (against her)”.
Justice Majara is also seeking an order that “His Majesty be and is hereby ordered to revoke the suspension of the applicant forthwith”.
She also wants the High Court to declare that Dr Thabane was in contempt of court and subverted the rule of law by recommending her suspension in violation of the court order granted on 17 May 2018.
“It is declared that the suspension of the applicant is null and void and of no force and effect. It is declared that the recommendation to appoint the third respondent (Justice Mahase) as Acting Chief Justice made by the Prime Minister to His Majesty the King and the subsequent appointment of the third respondent as Acting Chief Justice are null and void and of no force and effect,” Justice Majara further states in her court papers.
She also wants the courts to order the respondents to pay costs of her application and its opposition including the costs occasioned by employment of two counsels.
Meanwhile, the Attorney General, Haae Phoofolo, on Sunday approached the High Court to defend the decision to suspend Justice Majara.
Adv Phoofolo argued that the suspension was not in contempt of court because in May 2018 Justice Monaphathi only ruled that Justice Majara should not be suspended pending an application that the government intended to lodge seeking the recusal of Justice Lekale from a case the Chief Justice had brought against the government.
“The (May 2018) interdict (against Justice Majara’s suspension and the appointment of a tribunal) was contingent upon the pursuit of the recusal application which the government elected to abandon and which did not ultimately see the light of day.
“The interdict was never revived nor extended as is being sought to be portrayed (by Justice Majara). What is of crucial importance is the fact that the intended act of ignoring the suspension of 1st respondent (Justice Majara) and the acting appointment of Madam Justice Mahase has created a national confusion which has a deleterious effect on the administration of the state,” Adv Phoofolo stated.
He added: “The allegation that the order of Justice Monaphathi interdicted the government from removing the chief justice pending the determination of a hearing (against her suspension) set for 26 September 2018 is factually incorrect and equally misleading because that is not the position as alleged or at all”.
Adv Phoofolo approached the High Court on Sunday after Justice Majara’s lawyers had advised her to ignore the suspension and report for duty as normal.
