Tefo Tefo
THE government has been dealt yet another legal blow after Justice Tšeliso Monapathi ruled that Justice ‘Maseshophe Hlajoane should not assume office as acting president of the Court of Appeal after her appointment to that office last week.
This follows a constitutional challenge by three prominent lawyers who argue that the appointment of Justice Hlajoane violates the constitution because she was appointed when the government had already appointed a South African judge, Justice Yvonne Mokgoro, to the same position on 27 February this year.
The latest setback follows the one which the government suffered after the Constitutional Court last month ruled against the re-appointment of Justice Kananelo Mosito after an application by lawyers Motiea Teele, Zwelakhe Mda, Karabo Mohau and Qhalehang Letsika.
The quartet had challenged the appointment of Justice Mosito on the grounds that he had previously been impeached for misconduct. The Constitutional Court, comprising of three foreign judges, upheld their appeal, saying that Justice Mosito “is not a fit and proper person” for the top job.
Court papers show that after the Justice Mosito setback, the government immediately moved to appoint Justice Yvonne Mokgoro as the Acting President of the Court of Appeal on 27 February 2018.
Justice Mokgoro is a South African national who sits on the Court of Appeal.
However, Justice Mokgoro’s became a short-lived appointment as the court papers further indicate that Prime Minister Thomas Thabane, advised His Majesty, King Letsie III to replace her with Justice Hlajoane with effect from 20 March 2018.
It was on this basis that the trio of Mda, Mohau and Letsika once again petitioned the Constitutional Court last Friday to have the removal of Justice Mokgoro reversed and her replacement with Justice Hlajoane declared null and void.
The trio argued that the appointment of Justice Hlajoane, who is currently serving as a senior judge in the High Court, is unconstitutional as it violates provisions stating that an incumbent (in this case Justice Mokgoro) can only be removed after a tribunal has been set up and recommended the removal.
They cited Justice Hlajoane, Dr Thabane, the Minister of Law and Constitutional Affairs, Lebohang Hlaele, the Minister of Justice and Human Rights, Mokhele Moletsane, Attorney General King’s Counsel Haae Phoofolo, Justice Yvonne Mokgoro and His Majesty the King as first to seventh respondents respectively.
The trio had petitioned the court to suspend the swearing-in of Justice Hlajoane as acting president of the Court of Appeal and they wanted her to be stopped from discharging the functions of the Court of Appeal president pending finalisation of the case, as an interim relief.
Substantively, they want an order “that the removal of Madam Justice Yvonne Mokgoro from office as acting President of the Court of Appeal is null and void and of no force and effect to the extent that it has not met and followed the provisions of section 125 of the Constitution”.
And on Tuesday, Justice Monaphathi ruled that Justice Hlajoane should not perform the duties of acting president of the Court of Appeal until the case has been finalised.
He, however, did not set the date for hearing the substantive case saying it would be set by the judges who will be chosen by the Chief Justice Nthomeng Majara.
The court proceedings were characterised by dramatic exchanges between the applicants’ and the respondents’ lawyers.
Tempers flared after the applicants’ lawyer, King’s Counsel Motiea Teele, criticised Dr Thabane for contemplating criminal prosecution against the applicants for “illegally” obtaining the government gazette that announced the appointment of Justice Mokgoro.
The applicants subsequently used the gazette as the basis for the appeal against the subsequent appointment of Justice Hlajoane.
Adv Teele said Dr Thabane had accused the three lawyers of illegally obtaining the gazette from the government printers.
“The Prime Minister says the obtaining of the gazette attracts the criminal justice system to take its course against the applicants,” Adv Teele said. He said Dr Thabane’s stance was wrong, since the government gazette was merely a communication tool to inform the public about the appointment. The appointment had already been made the moment the Prime Minister’s advice on the appointment was accepted by His Majesty King Letsie III.
“The government gazette is just a newspaper. It merely informs the public about what happened when they (the Prime Minister and His Majesty) met in the palace where we cannot go.
“It does not constitute the appointment, but it only publishes the appointment. Because the applicants are now threatened with arrests the matter (court application) has to be dealt with urgently.
“The applicants are not saying Justice Hlajoane is a bad Judge but they are merely saying she was appointed when Justice Mokgoro was already appointed.
“If Justice Mokgoro was indeed appointed, when was she removed?” Adv Teele asked.
“I have never seen in my experience as a lawyer a Prime Minister who, instead of answering the merits of the case, threatens people with criminal prosecution,” said Adv Teele.
The lawyer representing King Letsie 111 and Justice Hlajoane, Adv Monaheng Rasekoai, agreed that the matter was urgent but for reasons that were different from those advanced by Adv Teele.
Adv Rasekoai said it was important that the matter was dealt with urgently because there were members of the public who wanted to see their cases proceed before the Court of Appeal and this was only possible one there was a president of the court.
Advocate Rasekoai also argued that the applicants unlawfully obtained the gazette announcing Justice Mokgoro’s appointment and they ought to be prosecuted as a result.
“If they obtained the document contrary to the law, they should face the law,” he said.
His sentiments were echoed by Dr Thabane’s lawyer, Adv Christopher Lephuthing, who called for the prosecution of the applicants on the grounds that they obtained the document that contained classified information.
“The Prime Minister is not threatening applicants as they claim. To him they are just ordinary three men. They must go to the police and explain how they obtained a classified document. They should go and report themselves to avoid the embarrassment.
“The applicants are a very dangerous group of people because they obtain things criminally. By obtaining classified documents to destabilise the country, they should be dealt with accordingly.
“The Prime Minister says these three men are dangerous to the nation and security of this country. Unless this criminal behaviour is dealt with accordingly this court should not hear this case,” Adv Lephuthing said.
Adv Teele replied by saying that he and the applicants felt “insulted by our colleagues calling us criminals”.
