- implores Chief Justice to crack the whip on errant judges who fail to provide reasons for judgements.
Mohalenyane Phakela
COURT of Appeal President Kananelo Mosito has implored Chief Justice Sakoane Sakoane to “crap the whip” on errant judges who fail to provide written reasons for their judgements.
Speaking at the opening session of the Court of Appeal’s first session of 2021 in Maseru this week, Justice Mosito bemoaned the High Court judges’ decades-long failure to provide reasons for their judgements. He said the majority of the High Court judgements currently being interrogated by the apex court do not have any written reasons explaining how and why they were arrived at.
He said the judges’ negligence was frustrating the work of the apex court as it was difficult for them to decide whether the former had followed sound legal principles in arriving at their decisions.
He also warned that High Court judgements, not accompanied by written reasons, could be overturned simply on the grounds that the judges would have breached their obligations to justify why they had reached such decisions in the first place.
He therefore urged Justice Sakoane, who took over from former acting Chief Justice ‘Maseforo Mahase last November, to be an “efficient new broom which sweeps away” the “unacceptable” conduct of the High Court judges.
“We appeal to the new broom, the Chief Justice, to sweep clean. The obligation of judges to give reasons is designed not merely to inform the parties of the reasons for the court’s decision, but also to make clear to them and to this court the basis on which their decisions were reached. It is important for us to be able to determine if they have reached their verdicts in conformity with the law.
“Judges must account for their decisions. Without the High Court giving intelligible reasons for its decisions, it is impossible to tell whether the judges had been entitled to reach the conclusions they reached.
“The failure to give reasons at the proper time may lead to the quashing of the decision, not on the basis that the decision was unreasonable or erroneous in law, but on the basis that the breach of duty to give reasons in itself warranted the quashing of the decision.
“Secondly, reasons encourage transparency and increase confidence in the operation of the justice system. The importance of the right to be given reasons for an adverse decision should not be underestimated, since in their absence the person affected may be unable to decide whether to challenge the verdict.
“Since 1997, this court has been complaining about the failure by some High Court judges to give reasons for their judgements to no avail. We therefore appeal to the learned Chief Justice to prevail over those judges of the High Court who do not give reasons for their decisions to do so,” Justice Mosito said.
Justice Mosito also complained about criminal cases which were filed in the Court of Appeal without the records of the High Court proceedings.
“Securing fairness is crucial to the attainment of justice and order in society. Justice has been described as the first virtue of social institutions. The failure to have records of criminal proceedings timeously produced for appeals to be finalised is a continuing cause for alarm. We appeal to the Honourable Chief Justice to crack the whip of discipline in that area as well.”
Justice Mosito also reminded judges of their independence when performing their duties. He quoted section 118(2) of the constitution which states that, “the courts shall, in the performance of their functions under this constitution or any other law, be independent and free from interference and subject only to this constitution and any other law”.
He said judges, especially those presiding over political conflicts, should not be subjected to undue influence for the rule of law to prevail in the country.
“The Court of Appeal must remain an independent and impartial court. In Lesotho, judicial independence is both mandated and guaranteed under the constitution. Judicial power is exercised by the courts independently, free from any interference, as section 118 of the constitution provides.
“An independent judiciary is essential to the rule of law in Lesotho and the administration of justice. It is equally crucial to public and business confidence, in our judicial system, as well as to the international reputation of the Kingdom of Lesotho as a society that is governed by the rule of law.
“Judicial independence means the judiciary, the courts, the judges and other judicial officers must not be subject to improper extraneous national or regional pressure or influence when discharging their judicial functions.
“Inevitably, cases with political overtones come before the courts for adjudication. Judges hearing such cases often come under intense scrutiny in the media and social media, and the decisions in these cases are almost always subject to partisan criticisms. Comments and criticisms, sometimes extreme and harsh ones, are unavoidable. Whilst the freedom of speech of everyone in society must be fully respected, there must not be an attempt to exert improper pressure on the judges on the discharge of their judicial functions,” Justice Mosito said.
Apart from Justice Mosito, other apex court judges are Justices Phillip Musonda (from Zambia), Petrus Damaseb (Namibia), Johann Van Der Westhuizen (South Africa) as well as Zimbabweans Moses Chinhengo and Tafuma Mtshiya.
In line with the public health regulations aimed at fighting Covid-19, the judges are not required to be physically present in Lesotho to hear appeals. They will preside over cases via video conferencing from their home countries.
All in all, this session which runs from 12 to 22 April 2021, will hear 32 cases and the judgements will be delivered on 14 May 2021.
One of the cases to be heard in this session includes politicians, Mothetjoa Metsing and Selibe Mochoboroane’s appeal against the Constitutional Court’s November 2020 judgement which nullified clause 10 of the SADC-brokered 2018 government-opposition agreement which sought to defer their treason and murder trial until after the implementation of the multi-sector reforms.
The court will also hear Directorate of Corruption and Economic Offences (DCEO) Director General, Mahlomola Manyokole’s appeal against Prime Minister Moeketsi Majoro’s move to fire him. Former Public Works Principal Secretary Mothabathe Hlalele is also challenging his dismissal late last year.
