MASERU — The Law Society of Lesotho is misdirected in submitting that the Chief Justice Mahapela Lehohla acted against the constitution by delegating some of his responsibilities to registrars, a lawyer representing the Chief Justice argued on Tuesday last week.
Advocate Hendrik Viljoen SC who was instructed by Webber & Newdigate, a firm of attorneys, told the court that there was nothing wrong with the Chief Justice’s decision to appoint registrars as judicial officers to deal with uncontested matters.
He was opposing an application made by the law society last year seeking to stop “the registrars and assistants registrars from exercising any judicial powers and performing any adjudicative functions as purportedly delegated to them in terms
of the High Court (Amendment) Rules 2009”.
The law society brought the application after the Chief Justice had used High Court (Amendment) Rules 2009 to give registrars and assistant registrars powers to deal with uncontested matters.
The law society argued that this was unconstitutional and asked the court to nullify the appointments.
It said because of the decision litigants are no longer entitled to have access to a lawfully constituted, competent and appropriately qualified or adjudicating authority as stipulated by the constitution.
Apart from the Chief Justice the law society also cited the Registrar, and the Deputy Registrar, the Minister of Justice, the Judicial Service Commissioner and Attorney-General as respondents in an application in the High Court.
But on Tuesday last week Viljoen argued that the law society’s interpretation of the rules is based on “misconception of the crucial words quoted”.
He argued that the law society’s assertion that the decision would disadvantage litigants was not valid because the registrars and assistant registrars will only deal with uncontested matters.
He said the law society had “demonstrated neither prejudice to the litigants nor any breach of the right to a fair hearing”.
“The decisions of the registrars in the present instances are, essentially, administrative in nature and are given in uncontested matters or orders made by consent of the parties,” Viljoen said.
“If registrars are prevented from assisting in such matters, the losers will be litigants in contested matters, whose right to a fair hearing will be undermined by the delay in having them resolved.”
Advocate Sakoane Sakoane, who is representing the law society, said the question is whether the Chief Justice is entitled to confer upon the registrar and her assistants the court’s jurisdiction and performance of its adjudicative functions.
Sakoane argued that if the Chief Justice thinks the business of the High Court requires more hands he should request for the appointment of more acting judges not make a judicial decision to “free judges from dealing with unopposed matters as he did”.
“Registrars are neither courts nor adjudicating authorities as envisaged by the constitution and are therefore bereft of any judicial power and jurisdiction to deal with actions and proceedings in the High Court by litigants,” Sakoane said.
He said according to Section 118 (1) of the Constitution of Lesotho, judicial power is vested in the courts and for the High Court such power is delineated under sections 22 and 119 read with section 48 of the High Court Act 1978.
He submitted that such power is exercised only by the Chief Justice and judges who shall take oath before taking upon their duties in accordance with the law.
The case has been postponed to August 28.