Mohalenyane Phakela
LAW and Justice Minister Professor Nqosa Mahao has won his constitutional application to stop former Acting Chief Justice ‘Maseforo Mahase and Attorney General Advocate Haae Phoofolo from recommending the appointment of five new High Court judges without the active participation and input of fellow members of the Judicial Service Commission (JSC).
Justice Mahase and Adv Phoofolo had met on 20 August 2020 in their capacity as JSC members and recommended that His Majesty King Letsie III appoints Deputy Attorney General Tšebang Putsoane, lawyers Tšabo Matooane, Mokhele Matsau, Moneuoa Kopo and Maliepollo Makhetha as High Court judges.
But the five were not appointed with authoritative government sources saying that King Letsie III refused to appoint them on the grounds that Justice Mahase and Adv Phoofolo could not just sit on their own and make recommendations without the input of other two JSC members.
Newly appointed Chief Justice Sakoane Sakoane was the other member of the JSC, in his capacity as a nominated High Court judge. The other JSC member is Public Service Commission (PSC) chairperson, Moshoeshoe Sehloho. Justice Sakoane and Mr Sehloho did not attend the 20 August 2020 meeting where Justice Mahase and Adv Phoofolo recommended the appointments. In his court papers, Mr Sehloho said that he and Justice Sakoane boycotted the meeting because they were unhappy with their fellow JSC members for not giving them an opportunity to review the curricula vitae (CVs) of the prospective candidates before the meeting at which they were appointed.
The stalemate over the appointment of the new judges prompted the White Horse Party to file a September 2020 constitutional application to force King Letsie III to appoint the five as judges as per Justice Mahase and Adv Phoofolo’s recommendations.
The little-known political outfit also petitioned the court to declare that Prof Mahao had actively interfered with the independence of the JSC by publicly questioning Justice Mahase and Adv Phoofolo’s moves to have the five appointed without his or the government’s knowledge and input.
But Prof Mahao fought back in October by filing a counter-application for the nullification of Justice Mahase and Adv Phoofolo’s 20 August 2020 meeting and their subsequent recommendations for the appointment of the five as judges.
The JSC, White Horse Party, King Letsie III, High Court and Court of Appeal Registrar Adv ‘Mathato Sekoai, the National Reforms Authority, The Law Society of Lesotho, the Lesotho Lawyers for Human Rights, the Independent Electoral Commission (IEC) and the Registrar of Societies were the first to ninth respondents respectively in the application.
The Constitutional Court consolidated the White Horse application and Prof Mahao’s counter-application and heard them as one case.
And in its judgement delivered on Friday, the Constitutional Court ruled in favour of Prof Mahao.
The constitutional bench comprising of Justices Tšeliso Monapathi, Moroke Mokhesi and Keketso Moahloli dismissed the White Horse Party application on the grounds that Justice Mahase and Adv Phoofolo did not constitute the JSC quorum.
They also ruled that the White Horse Party did not have the legal standing to file the application because it had no interest in the appointment of judges.
“The interest required by law is not a subjective one: the court is not concerned with the intensity of the applicant’s feelings of indignation at the alleged illegal or improper action, but with an objectively defined interest,” Justice Moahloli said on behalf of the court bench.
“For the purpose of establishing that it has locus standi (legal authority) the applicant must be able to point to something beyond a mere concern with legality, namely that a fundamental human right or freedom has been, is being or likely to be contravened in relation to him. This is to say he must demonstrate that he has a sufficient personal and direct interest in this case.
“The White Horse Party’s case is further weakened by the fact that it cannot even claim that its entitlement to participate in the selection of judges has been undermined. Under our constitutional scheme of things, political parties do not play any role whatsoever in the processes for appointment of judges, neither does the general citizenry.”
Justice Moahloli also said they had nullified Justice Mahase and Adv Phoofolo’s 20 August 2020 meeting and their recommendations for the appointment of five new judges on the grounds that it was not properly constituted.
He said for the JSC to make valid decisions, it must be properly constituted with a quorum of its members.
“It is not disputed that the meeting of the JSC was only attended by two of its full complement of four members. And it cannot be denied that whereas the commission may act notwithstanding the absence of any member, any resolution of such meeting requires the concurrence of a majority of all the members.
“So, for a decision to qualify as a valid decision of the commission it must have the agreement or approval of the majority of the four members. This applies to all decisions of the JSC meetings which were forwarded to His Majesty.
“In the result, the (White Horse) application is dismissed,” Justice Moahloli said.
The net effect of the ruling is that the JSC will have to go back to the drawing board and meet again with the right quorum of its members before recommending candidates for appointment as judges by King Letsie III.
The judgement is also a huge blow to Justice Mahase who has been enmeshed in several controversial issues since her appointment by former Prime Minister Thomas Thabane as acting chief justice in 2018.
