Lawyers’ Court of Appeal case postponed

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Tefo Tefo

A CASE in which three top lawyers are challenging the appointment of the High Court judge, Justice ‘Maseshophe Hlajoane, as the Acting President of the Court of Appeal was yesterday, postponed to 24 May this year to allow the appointment of judges to preside over it.

Justice Tšeliso Monaphathi, the judge on duty this week postponed the case.

But, the High Court Assistant Registrar Starford Sharite, told the Lesotho Times after the court adjourned that the processes to appoint judges to preside over the case are not complete as His Majesty King Letsie III is still outside the country on official duty.

“The judges to preside over this case will come from outside this country,” Advocate Sharite

“However, I am not in a position to disclose their names and where they come from because the process is still not complete. I can only tell you that they are judges from outside our jurisdiction.”

The three lawyers challenging Justice Hlajoane’s appointment are King’s Counsel, Zwelakhe Mda, Karabo Mohau and Attorney Qhalehang Letsika.

In their replying papers the lawyers accused Prime Minister Thomas Thabane of abuse of power when he threatened them with criminal prosecution after they challenged the appointment.

This appears in a replying affidavit by Attorney Qhalehang Letsika filed in court last month in a case in which they are challenging the appointment of Justice Hlajoane to lead the apex court.

Dr Thabane, in his affidavit as he defended the matter as one of the respondents, had said the three lawyers should be prosecuted for illegally obtaining a government gazette that appointed a South African based judge, Justice Yvonne Mokgoro, as Acting President of the Court of Appeal.

The said gazette, Dr Thabane said, was withdrawn before it was published. He therefore accused the trio of criminal conduct in obtaining the gazette.

Also cited in the case are Justice Hlajoane, 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 Mokgoro and His Majesty the King as first to seventh respondents respectively.

But Attorney Letsika in his replying affidavit said Dr Thabane is abusing his power for instigating criminal prosecution against them.

“The Prime Minister further threatens us and during the hearing of the application for interim relief his counsel (Advocate Christopher Lephuthing) made it clear that a decision had been taken to prosecute us for alleged criminal offences.

“I aver that it was and is unfair and contrary to good exercise of power by a state official, who wields such enormous power particularly on police, to threaten private individuals with criminal prosecution in litigation,” he argued.

Attorney Letsika further alleges their safety is threatened by Dr Thabane’s criminal prosecution threats against them.

“At the onset we register our concern regarding our safety and possible prejudice we are likely to suffer in our defence should the police and prosecution authorities decide to lay criminal charges against us.”

However, High Court judge, Justice Tšeliso Monaphathi on 27 March 2018 ordered that Justice Hlajoane should not perform duties as Acting President of the Court of Appeal until the case has been finalised.

Justice Monaphathi could not set a date of hearing on the notion that it would be set by a panel of three judges who would be assembled by Chief Justice Nthomeng Majara to preside over the case.

The court papers show that following the Justice Mosito setback, the government immediately moved to appoint Justice 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 as one of the judges.

The trio argue 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.

The three lawyers on 23 March 2018 filed a Constitutional Court application seeking for an order nullifying the appointment of Justice Hlajoane as acting President of the Court of Appeal.

They argue her appointment violates the constitution because she was appointed when the government had already appointed Justice Mokgoro to the same position on 27 February this year.

Justice Hlajoane was appointed on 20 March this year.

 

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