Only two new judges to be appointed

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  • Chief Justice Sakoane blames funding constraints,
  • backlog of cases set to worsen.

Mohalenyane Phakela

THE Judicial Service Commission (JSC) will only hire two High Court judges from the five candidates who were interviewed this week in Maseru.

JSC chairperson and Chief Justice Sakoane Sakoane said the remaining five vacancies would only be filled when resources permit.

The decision to recruit only two judges is despite that the JSC had announced that it intended to fill seven vacancies when it began the recruitment exercise anew in February this year. Even then, only six people were shortlisted for the final interviews by the JSC when it met on 22 July 2021.

The six are Fumane Malebana Khabo, Moneuoa Kopo, Realeboha Mathaba, Makhele Julius Sekati, Kuena ‘Mabotsoa Thabane and Mamotšelisi Khiba.

However, only five were interviewed after Mr Sekati withdrew from the race. JSC secretary, ‘Mathato Sekoai, said Mr Sekati withdrew on Friday. She however, did not say why he had withdrawn.

The five were publicly interviewed at ‘Manthabiseng Convention Centre. Justice Sakoane conducted the interviews alongside fellow JSC members, High Court Judge Polo Banyane, Attorney General Rapelang Motsieloa and Public Service Commission (PSC) chairperson Moshoeshoe Sehloho.

Upon completion of the exercise, Justice Sakoane, hailed what he said he said was a “historic” occasion where the recruitment had been done through open and transparent interviews.

“We have completed today’s work,” Justice Sakoane said.

“You will remember that it was said that there were seven vacancies. But we will only be able to fill only two for now and when all is well, we will again advertise to fill the remaining posts.

“History has been made today. Although this is new in Lesotho, the interviews are done everywhere else where there is democracy. The open interviews are important as the public has a direct interest in the type of judges recruited,” Justice Sakoane added.

Justice Sakoane asked the interviewees on how soon a judge should deliver a judgement after hearing a case.

The candidates generally said that three weeks to a month was reasonable before judgement could be handed down after hearing a case.

Justice Banyane wanted to know if the candidates were ready to handle different matters including land and commercial cases.

The candidates all indicated that they were familiar with the relevant laws such as the Land Act of 2010 which replaced the Land Act of 1979.

Adv Motsieloa wanted to know if the candidates were familiar with the sections of the constitution and the rules which give the High Court jurisdiction over different matters.

The candidates indicated that they were aware that the High Court had unlimited in criminal and civil cases.

Mr Sehloho asked the candidates whether they were aware of the judges’ oath of office and how they ought to conduct themselves as judges.

Again, the candidates answered in the affirmative, indicating that a judge had to hear matters without fear or favour.

The first candidate to be interviewed was Fumane Khabo, the former Labour Court president, who retired in March this year. Ms Khabo presided over labour issues for 16 years, six of which she was the court’s president.

She was followed by Mr Kopo who is currently employed as head of the Lesotho Revenue Authority (LRA)’s anti-corruption division. Before joining the taxman, Mr Kopo had worked as a magistrate for seven years.

Next in line was Mr Mathaba. He is also employed by the LRA as an overseer of litigations. He appeared the most confident, eloquently articulating issues and giving the relevant examples to back up his answers.

The last two candidates, Ms Khiba and Thabane, were on the receiving end of tongue lashings from Justice Sakoane for their failure to adequately fill in a questionnaire which formed the first part of the interview.

Ms Khiba was scolded for failing to properly state her judicial experience and to list the cases which are not reported in the country’s law reports.

An indignant Justice Sakoane said, “you did not take this questionnaire seriously, you filled it superficially.

“Is this carelessness going to find itself in your judgements? You do know that first impressions count?”

Ms Thabane, a practicing lawyer, had also not properly responded to the questionnaire.

After the completion of the interviews, the deputy registrar of the High Court, Lesitsi Mokeke, said that the JSC would announce the successful candidates in due course.

The judges’ recruitment exercise has lurched from one controversy to another since it was initiated last year.

Former Acting Chief Justice ‘Maseforo Mahase and former Attorney General Haae Phoofolo’s controversial August 2020 bid to recruit five new judges without involving other JSC members was nullified last December by the Constitutional Court.

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, Maliepollo Makhetha and Adv Kopo as High Court judges. Adv Kopo was also initially shortlisted by Justice Mahase and Adv Phoofolo in 2020.

But the five were not appointed with authoritative government sources saying that King Letsie III had 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 the other two JSC members.

Justice Sakoane was the other member of the JSC, then in his capacity as a nominated High Court judge. The other JSC member is PSC chairperson, Mr Sehloho.

Former Justice and Law Minister Professor Nqosa Mahao publicly lambasted Justice Mahase and Adv Phoofolo, saying the duo could not sit on their own and recommend the appointment of five new judges without the active participation and input their JSC colleagues.

The stand-off prompted the obscure 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 2020 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 Constitutional Court consolidated the White Horse application and Prof Mahao’s counter-application and heard them as one case.

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 court ordered a fresh process to recruit judges hence the latest move by the JSC to undertake a fresh, transparent recruitment process.

The JSC went back to the drawing board and on 15 February 2021, it published an advertisement calling on qualified people to apply or be nominated to fill the seven vacancies of judges of the High Court.

However, the exercise was halted on 23 April 2021 after the judiciary had been allocated a meagre budget of M937 366 for the April, May and June expenses of all the courts countrywide.

Adv Sekoai refused to say whether they had since been allocated funds to resume the recruitment process in July this year.

The recruitment process was again plunged in controversy last month. This after the JSC snubbed some top lawyers and all magistrates including the country’s three highly experienced Chief Magistrates ‘Matankiso Nthunya, ‘Makampong Mokgoro and Manyathela Kolobe from its shortlist announced over the weekend.

Ombudsman Tšeliso Mokoko, a former Defence and National Security principal secretary, was also overlooked along with Former Prime Minister Thomas Thabane’s daughter, ‘Mabatšoeneng Hlaele. Advocate Hlaele, the wife to ruling All Basotho Convention (ABC) secretary general and former law minister, Lebohang Hlaele, is a seasoned lawyer and law lecturer at NUL.

They had all submitted their applications but the JSC only shortlisted Ms Khabo, Thabane and Khiba as well as Messrs Mathaba, Sekati and Kopo.

However, the recruitment of only two judges will not be enough to reduce the backlog of cases in the High Court estimated at more than 4000. If anything, the backlog could increase instead.

Currently there are only eight judges.

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