Special report: crisis as courts teeter on the verge of collapse

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  • years of underfunding cripple courts,
  • magistrates and other officials work under shocking conditions throughout the country.

Pascalinah Kabi | Mohalenyane Phakela

MAGISTRATES’ courts and other lower courts in most districts around the country are either completely dysfunctional or teetering on the brink of collapse due to years of underfunding by the government, an investigation by the Lesotho Times has established.

All in all, Lesotho has 10 districts namely, Maseru, Berea, Mafeteng, Mohale’s Hoek, Qacha’s Nek, Quthing, Butha-Buthe, Thaba Tseka, Mokhotlong and Leribe.

Each of the districts has eight lower courts starting with the magistrates’ court, then the central and local courts. Except for Maseru, each district has one magistrates’ court and one central. The number of local courts, which are the first courts of instance, varies from district to district depending on the population size of the district.

For example, in Mohale’s Hoek, there is the magistrates’ court, central court and are six local courts, thereby bringing the total number of courts to eight. These courts’ operations are all funded by a quarterly subvention given to them by the government via the chief magistrates in each region. The regions are classified as central, south and northern.

According to magistrates and other court officials who spoke to this publication this week, for several years, the government used to allocate quarterly budgets ranging from M150 000 to M200 000 per district for the running of the lower courts.

Although not enough, the funds enabled the courts to pay for basic services like electricity, heating during cold seasons, transport for court officials as well as stationary for use in preparing dockets, summons and other court documents.

But since 2017 the budget allocations have been severely reduced and during the first quarter of this year for example, the Mohale’s Hoek district was given a paltry M18 793 to cover operating expenses of eight courts. Again, in the second quarter from July to September 2020, the magistrates’ court, central court and six other local courts in Mohale’s Hoek had to share M18 265, 14.

The first and second quarters allocations for this year translate to a measly average of M2349, 13 and M2283, 13 per court respectively.

Not surprisingly, with such paltry allocations, most courts have either stopped operating or are experiencing serious challenges offering services to the public.

Over a month ago, Law and Justice Minister Professor Nqosa Mahao alluded to the problem saying his countrywide tour had revealed that most courts were struggling due to shortages of human and material resources as a result of underfunding by government.

A week-long investigative tour of various districts by this publication has laid bare the gravity of the situation. It is nothing short of a national crisis which needs to be attended to without further delays.

In Mohale’s Hoek and other districts, this publication observed dire conditions of near-collapsed court buildings in some instances without roofs and windows as these had been blown away by heavy winds more than two years ago.

The Lesotho Times crew also heard shocking stories of judicial officers who for many years have been operating without stationary and other basic equipment to conduct their duties.

The Likueneng central and local courts on the outskirts of Mohale’s Hoek town are housed in the same dilapidated building made of old clay bricks which appear likely to come crashing down at the slightest hint of strong winds and rain. The windows are broken and the leaking ceiling has let in rain during this and previous rainy seasons.

Upon entering the Likueneng courts, one observes brown soiled court papers stacked against the wall.

“All those papers were once clean and white but the rains coming in through the leaky roofing have taken their toll,” a court official told this publication on condition of anonymity.

“With the paltry budget, we can’t repair the roof. We even go for months without gas for the heaters during the cold season and this makes the court building unbearably cold. We can’t afford stationary for dockets, subpoenas or other court documents. Judgements are delivered as handwritten copies because we can’t afford to print them.

“Due to these dire conditions, a litigant who seeks to open a case needs to bring his own file. If there are documents that need to be photocopied or printed, the litigant has to bear the costs,” the court official added.

Another official concurred saying, “every time it rains, we have to shift the files to the other side of the building where the leaking will be less severe. At times when it rains at night, we come in the next morning to find court documents in a pool of water. There is nothing we can do because we don’t have proper cabinets to store the files.

“During the cold season, we have to hold court sessions outside in the sun because no one can stand the cold in this building. This means we have to commence court proceedings after 10am when the sun provides adequate heat to keep us warm,” the official said, adding they last purchased a 48kg gas tank for heating in August this year.

Mohale’s Hoek Resident Magistrate, Kakapa Tau, has been in the district since 2018. He spoke of dire situation where “service delivery in the district has been negatively impacted by lack of resources”.

“Though the funds were still inadequate when I got here in 2018, they were way better than what we are getting now,” Magistrate Tau said.

“We were allocated M18 000 for three months for all the eight courts in the Mohale’s Hoek district. The money has to cover everything from coal, stationary, ink, electricity and water.

“It has been more than a year since we printed or photocopied documents. This is a serious problem and it is even worse for the lower courts. For example, when a lawyer comes to open a case, there are papers that we must print for them but we are unable to. They have to find ways of printing for themselves.

“At some point we were even asking lawyers to buy stationary for the courts. That is wrong because lawyers are not supposed to fund courts as this will make the other party complain when judgment is delivered in favour of those who have assisted the court.

“In one of the courts, a lawyer applied for a review after the plaintiff won a case. The plaintiff’s lawyer had bought stationary for the court and it was felt that this had helped sway the judgement in his favour. We discussed this matter with lawyers and we agreed that they must all donate. That way it would not appear as though a lawyer had won a case because they bought stationary for the court.

“We deliver hand-written judgements because we cannot print. I used to be in Qacha’s Nek before I was transferred here in 2018. There are a lot of cases that I left uncompleted because of the urgent transfer and those cases still have not been heard since I left.

“But I cannot go back there even for a week to finalise them due to lack of transport. Most of us do not have private cars.

When you don’t own a car, you are forced to jump into a public transport vehicle with people you delivered judgements against. This is one of the grievances we raised in the past,” Magistrate Tau said.

Southern Region Chief Magistrate Manyathela Kolobe also bemoaned the underfunding of the judiciary. He accused successive governments of prioritising other issues ahead of the judiciary because there were no political benefits to be derived from the judiciary.

“We are always making inquiries to establish why the state is not interested in investing in the justice system and we are always told that government is broke.

“With the previous government, we were told that funds had been diverted to settle the debt owed to (South African company) Bidvest which supplied the government fleet. This year we were told that funds have been diverted to priority areas like fighting Covid-19.

“Clearly, the justice system is not a priority for any regime. I think this is because the justice sector is not a playground for politicians to score political points. Their priorities lie where they can easily score political points. Here in the justice sector when a politician is wrong, we say it like it is and the judiciary does not help them to survive as politicians. Therefore, they will divert their energy and focus to areas where they can get mileage to survive in politics,” Magistrate Kolobe said.

He said his greatest challenge was to allocate resources to his staffers on a daily basis. He said court officials were often forced to dip into their own pockets to get the work done.

“Even on the issue of Covid-19, some staffers use their own money to buy the personal protective equipment (PPE) to use at work.

“An accused who has been referred to the magistrate’s court from any central or local court is now being transported by a court officer with the expectation that the officer will be reimbursed by the government but that doesn’t happen. My staffers travel from Mohale’s Hoek to Maseru every week but they are not even provided with lunch. They end up using their own money to buy lunch but it is never refunded. These are the conditions that we operate under smack of oppressing and cheating people.

“Staffers are traumatised. Working under such an unconducive environment has sucked the energy out of them. However, we are trying to motivate them to continue to serve Basotho under these conditions.

“Our relationship with the people has broken down. The judiciary is shouldering the blame that it should not have to carry in the first place. This is not our mess to clean up. Our hands are tied behind our backs while we are being figuratively beaten up for mistakes of not our own making. We are caught between angry ordinary citizens and politicians campaigning for office by accusing us of failing to issue written judgements yet they are the ones who do not give us the resources to enable us to write those judgements,” Chief Magistrate Kolobe said.

The situation is even worse at the Ha Maja Magistrates’ Court in the Maseru district. The court building has been without a roof since it was blown off in December 2018.

The court has two holding cells for suspects remanded in custody but these have not been very useful after the roofs were blown off. In fact, some suspects are said to have escaped by climbing the walls due to the absence of roofs.

Money used for court purposes is stored in a safe built into the walls of the dilapidated roofless court structure and it is probably a matter of time before armed criminals pounce.

Like many others, the Ha Maja Magistrate Court lacks stationary.

“Litigants cannot afford to bring docket covers so we use ordinary A4 exercise papers as covers. Files can easily be destroyed,” a Ha Maja court officer said.

A tour of other districts yielded similar findings. Subordinate courts in Thaba-Tseka, Quthing and Butha-Buthe are operating from the district administrator’s offices due to lack of their own buildings.

A fortnight ago, Prof Mahao said that he had undertaken a countrywide tour and found that there was serious crisis where some of the courts had been dysfunctional for several years.

He said the Commercial Court was forced to shut down after the deaths of its last two judges, Lebohang Molete and Lisebo Chaka-Makhooane, in May and June this year. Justice Molete died after suffering a stroke while Justice Chaka-Makhooane of Covid-19.

“In addition, my office has received several complaints from the public lamenting that their cases were stagnant in the High Court and lower courts. I have also visited seven out of the country’s 10 districts and found that the judiciary is in a crisis.

“There are courts which have been dysfunctional for years. For example, the Makhaola Central Court has not been functioning for the past seven years. This shows that those who have been in charge have not been doing their work,” Prof Mahao said.

This week, Law and Justice principal secretary (PS), Lebeko Sello, weighed on the issue, saying, “there is no longer any justice in this country because for the wheels of justice to fully function, institutions tasked with service delivery must be fully capacitated”.

“When we came in, we learnt that government has been disinvesting in the judiciary. The Qacha’s Nek magistrate tells us that from 2013 to 2015, their quarterly subvention was M150 000 to run courts in that district. This means they were receiving M600 000 per year.

“They had a staff complement of three magistrates and support staff. Five years later in 2020, they have only been allocated M25 000 per quarter to run all the courts in the district. They have rented two buildings as courtrooms and they each pay M9000 per month as rent. Do your mathematics and see how we function under these conditions. This tells us that government is gradually withdrawing its financial support for the judiciary and that has negative impact on the administration of justice.

“When you go to the local courts which serve the majority of our population, you will find that there is no office equipment for them to do their job. Buildings are dilapidated, doors and windows are broken and the roofing is leaky. I must thank civil servants working under those conditions because our courts are demoralising.  People approach the courts for legal recourse but the state of our courts do not give any hope to the people. There is no water, electricity and courts in the mountains have also complained of harsh weather conditions. They complain of the cold and they do not have resources to heat the court buildings.

“Where some courts had three magistrates five years ago, today they have one magistrate while some do not even have a single magistrate. Where there is no magistrate, we have no option but to close that court.

“Clearly the delivery of justice has regressed in this country. The backlog of cases in the courts is a result of serious underlying administrative problems. We are trying to solve these issues by reviewing existing laws. It is unfortunate that the world is dealing with the economic impact of Covid-19 but these challenges in the judiciary require that the (law) ministry must have a special engagement with the government,” Mr Sello said.

The magistrates have a pending Constitutional Court application to compel the government to improve their working conditions.

In their stinging unprecedented Constitutional Court application filed in November 2019, the magistrates accuse the government of destroying their “morale, enthusiasm and passion” through its failure to adequately remunerate them and to allocate sufficient funding to enable them to discharge their duties.

The Judicial Officers Association of Lesotho (JOALE) filed the application on behalf of the magistrates. JOALE is an umbrella organisation representing judges, magistrates and other judicial officers. The government, Minister of Justice and Correctional Services, Minister of Public Service, Minister of Finance, Public Service Commission (PSC), Judicial Service Commission (JSC) and the Attorney General are the first to seventh respondents respectively.

The lawsuit is the culmination of several years of the magistrates’ fruitless efforts to get the government to increase their salaries and benefits as well as recognise them as constitutionally distinct from civil servants. In July 2018 and in April 2019, the magistrates took the unprecedented step of staging go-slow strikes to protest what they said were “our shockingly poor salaries and benefits”.

They only called off the job actions when the government promised to address their grievances.

But after months of waiting in vain for feedback and concrete action, their patience has finally worn off and they have taken the unprecedented step of collectively suing the government.

In their court papers, the magistrates say they have “lost hope in the government ever resolving their five decades-old plight” and it is “more likely that another decade will go by without the government meaningfully addressing the grievances of the magistrates”.

The magistrates said their low salaries and benefits were “extremely depressing and do not promote the commitment and urge to go the extra mile”.

“Lesotho’s judiciary, particularly the magistracy, has been at the receiving end of the systemic general lack of funding by the government in terms of infrastructure, resources, salaries and remuneration. The magistracy operates around the country mostly in dilapidated buildings and squalid work conditions which can best be described as a scar to the human conscience.

“Many of the magistrates resort to loans and financing by financial institutions. While this may seem a temporary relief, the long-term ramifications are spiralling the magistrates into any abyss of never-ending debt, frustration and dejection. The best brains and talent migrate from the magistracy to join private practice or to the public service where upward mobility through the grades is in many cases a partisan reward,” JOALE president and Maseru resident magistrate, Peete Molapo, states in his supporting affidavit to the JOALE court application.

Apart from the court application, the magistrates are also pinning their hopes on Prof Mahao who was appointed to the Law and Justice portfolio when the Moeketsi Majoro-led administration replaced the previous government which was led by Thomas Thabane.

“Our minister, Ntate Mahao, visited us and we engaged him on the conditions that we operate under. He was devastated. However, since he is minister of law, not finance, he will still have to beg elsewhere for resources to fulfil our needs. Only the minister of finance can allocate satisfactory budget for the courts,” Chief Magistrate Kolobe said.

 

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