Mohalenyane Phakela / Nat Molomo
THREE Constitutional Court judges yesterday accused former Defence and National Security minister Tšeliso Mokhosi of “scandalising the courts” by alleging that the Assistant Registrar of the High Court, Realeboha Makamane, was an activist of the ruling All Basotho Convention (ABC).
Justices Thamsanqa Nomngcongo, Lebohang Molete and Moroke Mokhesi also questioned Mr Mokhosi and his co-applicants’ decision to include an affidavit by the suspended Chief Justice Nthomeng Majara to support their application to nullify the appointment of foreign judges to preside over their and other high profile cases involving former and serving members of the security agencies as well as politicians.
Mr Mokhosi, former army commander Lieutenant General Tlali Kamoli, and 14 others filed an urgent court application on 15 February 2019 seeking the nullification of the appointment of foreign judges to preside over their cases.
The other 14 applicants are Major Pitso Ramoepane, Thabo Tšukulu, Mothibeli Mofolo, Mabitle Matona, Rapele Mphaki, Pitso Ramoepana, Lekhooa Moepi, Mahlele Moeletsi, Mahlomola Makhoali, Nthatakane Motanyane, Motšoane Machai, Liphapang Sefako, Nemase Faso, Tieho Tikiso and Litekanyo Nyakane.
They want the appointment of the foreign judges by the Judicial Service Commission (JSC) to be nullified on the grounds that it is unconstitutional.
In terms of the interim relief they seek, they want Zimbabwean judge Justice Charles Hungwe and the other foreign judges to be interdicted and prevented from commencing hearing their criminal cases until the finalisation of their main court application challenging the constitutionality of their appointment.
Justice Charles Hungwe, the Prime Minister, Minister of Law and Constitutional Affairs, Judicial Service Commission, Director of Public Prosecutions and the Attorney General are the first to sixth respondents in the matter.
The case was initially supposed to be heard on Monday afternoon but it was postponed to yesterday to allow the judges time to read the applicants’ supplementary heads of argument.
Monday’s brief session served as some sort of reunion for Mr Mokhosi and Lt-Gen Kamoli who smiled and happily hugged each other. Lt-Gen Kamoli even asked to exchange seats with another applicant so that he could sit next to Mr Mokhosi and the two had what seemed to be a cordial conversation before the judges entered the courtroom.
But during yesterday’s session, Mr Mokhosi sat in the audience, away from Lt-Gen Kamoli and his co-applicants, who remain in custody awaiting trial for murder and attempted murder. Lesotho Congress for Democracy (LCD) leader, Mothetjoa Metsing, and LCD member, Khotso Matla, also attended the court session as part of the audience.
When the application finally got underway, the three judges expressed their anger over allegations by Mr Mokhosi that the Assistant Registrar of the High Court, Realeboha Makamane, was a “political activist” of the ruling party.
Mr Mokhosi’s affidavit states that Adv Makamane, who was tasked by the Judicial Service Commission (JSC) to source foreign judges, acted in the interests of the ABC as the ruling party.
“The role of recruiting judges becomes that of the Chief Justice. I have been advised that there are political reasons why Adv Makamane was singled out to recruit the judges.
“He is a political activist who sympathises with the ruling party in the current coalition government, the All Basotho Convention and I have been advised that he does a lot of things that undermine the Registrar, Adv (Pontšo) Phafoli,” Mr Mokhosi states in one of his affidavits that was prepared in support of the application against the recruitment of the foreign judges.
A seemingly irate Justice Nomngcongo said of Mr Mokhosi’s claims, “I suspect it is scandalous to say such allegations about the officer of this court”.
“That brings this court into disrepute to say registrars, who are pillars of this court, have political motives,” added Justice Nomngcongo.
Mr Mokhosi’s lawyer, King’s Counsel Advocate Karabo Mohau replied by saying “the allegations (against the assistant registrar) might be spurious but they are out there and must be investigated”.
The judges also questioned the relevance of the applicants’ lawyers inclusion of Justice Majara’s affidavit to support their application. Justice Majara had prepared the affidavit in support of her own case in which she is challenging her suspension and proposed impeachment for gross misconduct including the failure to clear the huge backlog of cases at the courts.
In her affidavit, Justice Majara states that she advised the government against involving itself in the recruitment of foreign judges.
“The government initiated efforts to recruit foreign judges without following the Constitution. I warned them that the constitution did not support their conduct as the recruitment falls within the mandate of the JSC and not the executive arm of state. I advised that they should leave the issue of the recruitment with the JSC,” Justice Majara states in her affidavit.
The judges grilled Adv Mohau over the relevance of Justice Majara’s affidavit saying that it was not relevant to the present case because it was from another court case.
Adv Mohau argued that the reason for including Justice Majara’s affidavit was to prove that the head of the JSC was against the involvement of the government in recruitment of foreign judges.
He further said the purpose of his clients’ application was to seek an order “declaring the recommendation made by government to the JSC to appoint foreign judges as a violation of the constitution and it must be nullified”.
“The background of the application is that the applicants were arrested and arraigned in 2017 and have been languishing in custody from that time and every time they were being told that the executive was making arrangements to bring foreign judges (to preside over their cases).
“The executive’s submission of foreign judges’ curriculum vitae to the JSC to choose (the judges to hear cases in Lesotho) was unconstitutional because they were interfering with the JSC which should be left to do its own recruitment.
“The head of the JSC, being the Chief Justice also warned the executive that its conduct was unconstitutional hence we found it fit to attach her affidavit. We could not source a fresh affidavit because the JSC which she heads is one of the respondents so she would be conflicted. We submit that the Chief Justice’s affidavit should be admissible as proof because she stated that under oath. The affidavit talks about the independence of the judiciary,” Adv Mohau argued.
It was at this stage that judges on the bench threw several questions at Adv Mohau KC
Justice Mokhesi asked Adv Mohau, “what is the propriety of the affidavit of Chief Justice Majara in this case, is it relevant?”
Justice Nomngcongo also asked, “what is the admissibility of that affidavit in these proceedings? It is hearsay and she has not sworn to anything in these proceedings”.
Adv Mohau insisted that the statement of the Chief Justice was admissible evidence.
Adv Mohau KC further asked the court to order the respondents to present the minutes of the JSC meetings to the court to prove that the executive was not involved in the recruitment of foreign judges.
The respondents’ lawyers, Adv Tekane Maqakachane, then argued that the applicants had failed to prove their case and wanted the respondents to create a case for them and therefore the court should dismiss their application.
“The applicants have characterised this matter as of monumental importance yet that is not the case. It is a mythology to come before the court without evidence and request respondents to bring documents to make your mythology a reality.
“There is no evidence of any violation of the constitution. They (applicants) cannot expect respondents to furnish them with evidence.
“Documents from another court can be admissible in situations where they are original copies and the person who made such statements is brought before the court as a witness,” Adv Maqakachane said.
Justice Nomngcongo then interrupted Adv Maqakachane saying that they had just received communication that it was time for Lt-Gen Kamoli and his co-applicants to return to Maseru Maximum Security Prison where they are currently detained. Mr Mokhosi is however, out on bail.
Justice Nomngcongo then adjourned the court to tomorrow.