…as apex court expresses frustration at judges who do not provide reasons for their decisions
Moorosi Tsiane
JUDGES are highly esteemed people who are paid to interpret and apply the law and give reasons for their decisions. Yet the Court of Appeal continues to be baffled by the “neglect” or “failure” of some of Lesotho’s High Court judges to give reasons for their decisions.
This behaviour by some of Lesotho’s judges has gone for far too long, according to the Court of Appeal. It is about time such “errant” judges faced disciplinary action.
Court of Appeal judge, Moses Chinhengo, makes this damning observation in a judgment in which his colleagues, Kananelo Mosito, the President of the Court of Appel and Van Der Westhuizen, another apex court judge, all concur.
The apex court judges say it is about time that Chief Justice Sakoane Sakoane and the Judicial Service Commission (JSC) take all necessary steps “to curb the habit once and for all, including taking disciplinary measures against errant judges as may be necessary…”
The judgment is one of the most damning issued by the apex court at its recently ended first session of 2023.
The apex judges took umbrage with Justice Molefi Makara’s failure to provide reasons for his ruling in a case involving former Ministry of Social Development senior officer, Retšelisitsoe Thoahlane, who was dismissed from work after he was convicted of raping an 11-year-old minor who had been under his care.
The failure by judges to justify their decisions was impeding the smooth administration of justice in Lesotho, the apex court ruled.
“In every situation where an appeal is heard without reasons for the judgment, this Court (appeal court) faces avoidable difficulties when determining whether the judge a quo had a good basis for the decision he made,” reads the main judgment, penned by Justice Chinhengo.
“The neglect or failure by some High Court judges to give reasons for their decisions has been going on for too long now. In my view, it is now pointless to harp on it…”
He then directs that the Registrar of the Court of Appeal brings the judgment to the attention of Chief Justice Sakoane and the JSC for appropriate action against Justice Makara and others not similarly writing their judgments.
Justice Chinhengo made the damning remarks while reflecting on High Court judge Justice Molefi Makara’s ruling on former social development ministry official Retšelisitsoe Thoahlane’s application that the High Court sets aside his summary dismissal from work on 9 March 2022.
Thoahlane had on 28 February 2022 been found guilty of serious sexual offences by the Children’s Court and was sentenced to 15 years in prison. This after he had repeatedly raped a crippled 11-year minor that he had been entrusted to look after.
Thoahlane served as the Director of Disability in the social development ministry. He abused his position by repeatedly raping the 11-year-old minor under his care over an unspecified period of time. His son, Tumelo, also raped the minor when she turned to him to protect her from his father. Both were found guilty by the Maseru Magistrate, ‘Manapo Motebele and were sentenced to 15 years imprisonment. Thoahlane was then fired.
Thoahlane had on 22 March 2022, instituted motion proceedings in the High Court, seeking a review, and setting aside of the ministry’s decision to dismiss him.
The grounds upon which he relied were that he was not given a hearing before the decision was made; that the conviction, which was the reason for his dismissal, was unrelated to his employment; and that, after conviction he had lodged an appeal which is yet to be heard. As such the conviction was not cast in stone. It could still be overturned yet he would suffered serious jeopardy by being fired. The appeal against the conviction also needed to be finalized before a decision to fire him could be made, he argued.
Thoahlane had furthermore argued that he was dismissed by a person without powers to do so. The Government Secretary (GS) was the only person with powers to dismiss him not the ministry’s principal secretary.
The government opposed Thoahlane’s application and on 31 October 2022, Justice Makara dismissed the application with no order as to costs. On 7 December 2022 Thoahlane noted his appeal against Judge Makara’s order at the Court of Appeal.
But Thoahlane through his lawyer Advocate Lepeli Molapo during the just ended appeal session in April this year, withdrew the appeal during the course of argument before a panel of the three judges, Justices Mosito, Van Der Westhuizen and Chinhengo. Adv Molapo conceded that the appeal had no merit. However, he also pleaded with the apex court not to make an adverse costs order against Thoahlane.
Justice Chinhengo proceeded to make the adverse costs order against Thoahlane anyway. He ordered him to pay the costs of the three respondents namely the Ministry of Social Development, its principal secretary and the attorney general.
But not before he had chided Judge Makara over his failure to provide reasons for his judgment and why he had not made a costs order.
“The parties’ ability to argue appeals is hamstrung by the absence of reasons…,” lamented Justice Chinhengo.
This is not the first time that some of Lesotho’s High Court judges are being chided for their failure to write judgments.
Justice Mosito himself has previously condemned his peers for not writing judgments timeously or at all. That then made it impossible for the Court of Appeal to do its work properly.
