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‘Chief Justice overstepped his authority’

by Lesotho Times
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MASERU — The High Court on Tuesday ruled that Chief Justice Mahapela Lehohla overstepped his authority when he appointed the registrar and deputy registrar to hear uncontested cases.

Justice Lehohla in June 2009 issued High Court (Amendment) Rules that provided for uncontested matters to be heard by registrars in a bid to deal with the huge backlog of cases at the High Court.

But the move was fiercely opposed by the Law Society of Lesotho who challenged its legality and constitutionality.

In its application the Law Society wanted the granting of adjudicative authority and judicial powers on the registrar and deputy registrar by the chief justice to be declared null and void and of no force and effect.

The society also called for the High Court (Amendment) Rules 2009 to be declared out of order.

This week Justice Tšeliso Monaphathi ruled that Justice Lehohla acted wrongfully when he appointed registrars to hear uncontested cases.

Justice Monaphathi noted that “registrars and their assistants being appointees of the Judicial Service Commission . . . are neither judges (nor) intermediate subordinate judicial officers as they have not even taken the oath or affirmation that magistrates take”.

He said the question that he needed to address therefore was “whether the chief justice can empower the registrar and assistant registrars to do judicial work”.

He said registrars are not appointees of the High Court but are attached to that court to perform administrative functions and not judicial functions.

The chief justice could not therefore “delegate functions and administration of justice to persons or to people who have not been invested with judicial powers because they are not judicial officers”.

Justice Monaphathi said it was a general rule that in ordinary courts of law “cases for resolution are acted upon by judges personally”.

“Where there is need or requirement for delegation or where permitted it has to be expressed unambiguously in the enabling statutory instruments to that effect,” he said.

He also added that the Law Society had submitted that “judicial power is vested with judges and judicial officers in the courts and only in the courts in terms of the constitution”.

The Law Society argued that had the drafters of the constitution envisaged any sharing of judicial powers “they could have easily added to section 118(1) of the constitution registrar and assistant registrars to the list of those officials who shall be vested with judicial power”.

“Applicant has accordingly submitted that courts are “vested” to be repository of judicial power. This according to them poses an almost impossible hurdle as to who else can be the repository of those powers.

“It cannot be the registrar or her assistants however forcefully this is put forward. This seems correct in my opinion,” Justice Monaphathi said.

He said if the chief justice felt there was need for a further pair of hands to deal with the mounting backlog of cases the best solution would have been to appoint acting judges and not seek “the easy solution of burdening the registrar and her assistants”.

“However heavy the yoke, judges are obliged to hear cases and determine actions and proceedings lodged in the High Court,” Justice Monaphathi said.

“In the premises I concluded that the distinction between disputed matters and non-disputed matters did not lessen the responsibility that judges have in relation to those.”

He added: “The registrar and her assistant were being irregularly vested with judicial powers to adjudicate disputes by the High Court 1909 Rules which was a wrong exercise of the power to make rules by the chief justice as I now conclude.”

Justice Monaphathi said while the chief justice might have acted with good intentions “the investiture of the registrars immediately brought about a situation where the chief justice acted ultra vires” the constitution.

He said for registrars to lawfully exercise any power in any form that must be provided by a law passed speedily by parliament preferably after consulting all stakeholders.

The Law Society had also argued that registrars were not appointed by the King and were not puisne judges and therefore could not exercise judicial powers that belong to the High Court.

Justice Monaphathi said this was because courts should not legislate as that is the constitutional function of parliament.

“Neither should the executive or the legislature interfere with the exercise of judicial power without an enabling act of parliament.

“This is an aspect of the rule of law, any resolution which has adverse effect on the rights of freedom and interests of the citizen must be determined according to the law and not otherwise,” Justice Monaphathi said.

He said since 1993 the constitution is the supreme law in Lesotho and this means every public law or act or decision must pass the constitutional muster.

Advocate Sakoane Sakoane appeared for the Law Society while Advocate Hendrik Viljoen SC represented the respondents.

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