. . . accuses apex court of usurping his powers to allocate cases in the High Court
Moorosi Tsiane/Mohalenyane Phakela
CHIEF Justice Sakoane Sakoane has ripped into Court of Appeal judges, accusing them of usurping his powers to administer the High Court and allocate cases to judges.
His remarks come in the wake of last week’s appeal court judgement ordering him to recuse himself from presiding over the treason and murder trial of former army commander, Tlali Kamoli, and others.
He made the claims during this week’s court appearance of Kamoli and his co-accused.
Justice Sakoane had allocated himself the trial before the latest Court of Appeal judgement. It is unclear what will happen next as the chief justice seemed to wash his hands off the entire matter, saying he was leaving it in the hands of the registrar and the Court of Appeal.
If the registrar elects to appoint a foreign judge, who needs contractual engagement for that, the situation might become murkier as it is the chief justice, as head of the Judicial Service Commission who is responsible for the appointment of foreign judges.
From his remarks this week, it became clear Justice Sakoane does not want anything to do with the matter anymore.
The apex court had ruled that Justice Sakoane should step aside as demanded by DPP Motinyane. The court had then ordered the Registrar of the High Court and Court of Appeal, ‘Mathato Sekoai, to allocate the case to another judge.
However, on Tuesday, the top judge took umbrage at the appeal court verdict, saying it had stripped him of his lawful powers to allocate cases and vested them in Advocate Sekoai.
The apex court also granted DPP Motinyane’s application to rescind Justice Sakoane’s decision to bar South African Shaun Abrahams from prosecuting the case.
DPP Motinyane’s appeal was heard on 23 April 2022 by the apex court bench comprising Justices Johan Van Der Westhuizen of South Africa and the Zimbabwean duo of Tapfuma Mtshiya and Moses Chinhengo. Judgement was handed down on 14 May 2022. The verdict was read out by apex court president, Kananelo Mosito.
Commenting on the verdict this week, Justice Sakoane said, “in other words, the Court of Appeal is saying I should abdicate my functions that are enshrined in section 12 of the High Court Act”.
“The court is usurping my functions and giving them to the registrar to distribute that (treason and murder) case. Are you aware of the implications of that,” Justice Sakoane asked the lawyers present in court.
“What happens if a court issues orders that contradict a law of the land? A citizen is ordered by court to contravene a law of the land. What should that citizen do?”
Justice Sakoane said Section 12 of the High Court Act was very clear that the Chief Justice shall regulate the distribution of business in the High Court and all actions and proceedings shall be heard and determined by a single judge, unless the Chief Justice directs otherwise.
“The Court of Appeal has said I should not do those things, they should be done by the registrar. When you read the administration of the Judiciary Act 2011, the registrar’s functions have been laid out and they do not include what the Court of Appeal is saying. But I leave it to the registrar and Court of Appeal to sort it out. You cannot delegate statutory functions by a way of court order. So, I am just going to excuse myself from allocating the case,” he said.
He subsequently adjourned the court but it remains unclear whether Adv Sekoai will go ahead and allocate the case after Justice Sakoane’s remarks.
This is not the first time a Chief Justice and the Court of Appeal have clashed over the latter court’s ruling concerning the allocation of a case in the High Court.
In 2019, then acting Chief Justice ‘Maseforo Mahase clashed with the Court of Appeal after it ordered her to recuse herself from the legal battles between rival All Basotho Convention (ABC) factions. One faction was led by then party leader Thomas Thabane and the other was led by his then deputy Professor Nqosa Mahao.
The full Court of Appeal bench, except for Justice Westhuizen who was not part of that session, ruled that it was the duty of the Registrar, not the Chief Justice, to allocate cases.
The verdict prompted Justice Mahase to write a scathing letter to Justice Mosito on 27 May 2019, accusing him of interfering with her administrative powers at the High Court.
In the murder and treason trial, Kamoli is accused alongside politicians, Mothetjoa Metsing, Selibe Mochoboroane, Captain Litekanyo Nyakane, Lance Corporals Motloheloa Ntsane and Leutsoa Motsieloa.
The treason and murder charges are in connection with the 30 August 2014 attempted coup against the first government of former Prime Minister Thomas Thabane.
After unsuccessfully petitioning Justice Sakoane to recuse himself from the case on the grounds that he could be biased against the prosecution, DPP Motinyane subsequently appealed to the apex court.
In her heads of argument filed in the apex court, DPP Motinyane reiterated that Justice Sakoane could not be trusted to bring an impartial mind to bear if he was allowed to continue presiding over the case.
She also slammed the top judge for his insistence on forging ahead with the trial in the absence of the fugitive Mr Metsing when he was allegedly the chief instigator of the criminal events of 29-30 August 2014, which form the basis of the treason and murder case.
Justice Sakoane’s determination to proceed with the trial “without regard to the central role played by the fifth respondent (Metsing) in the charges” makes a compelling argument why he should not be allowed to preside over the case, DPP Motinyane argued.
She also accused Justice Sakoane of unilaterally allocating the case to himself without consulting the executive or anyone else. This is despite the chief justice’s knowledge of a government-SADC agreement that all high-profile trials involving politicians, serving and former members of the security agencies be tried by foreign judges.