Pascalinah Kabi
TEMPERS flared when lawyers representing suspended Chief Justice Nthomeng Majara and those representing the government met behind closed doors on Monday in the Acting Chief Justice Maseforo Mahase’s chambers, the Lesotho Times has learnt.
Justice Majara recently petitioned the High Court to order King Letsie III to revoke her recent suspension which is effective from 11 September this year.
The suspension paves way for a three-member tribunal to try Justice Majara over a litany of misconduct charges including her alleged failure to ensure the timeous delivery of justice.
Justice Majara also wants the court to set aside the subsequent appointment of Justice ‘Maseforo Mahase as the Acting Chief Justice.
Highly placed sources told this publication that on Monday tensions arose after Justice Majara’s legal team sought to have Acting Chief Justice Mahase delegate her powers to allocate judges to the case in which Justice Majara is challenging the government’s decision to suspend her from office.
Advocate Motia Tele appeared on behalf of Justice Majara while Advocate Koili Ndebele appeared on behalf of the Minister of Law and Constitutional Affairs, Justice Mahase and His Majesty King Letsie III. Mr Monaheng Rasekoai represented Attorney General.
The case was supposed to have been heard in open court but as soon as proceedings began on Monday, Adv Tele asked that the matter be discussed in chambers on the basis that there were secret issues that needed to be discussed away from the prying eyes of the media.
Once in chambers, the sources say that Adv Tele asked that Justice Mahase delegate her powers to allocate judges to the case in which Justice Majara is challenging the government’s decision to suspend her from office.
This however, led to heated exchanges as the government side argued that it was not necessary for Justice Mahase to delegate as this was a purely administrative issue which would not have any bearing on Justice Majara’s petition.
“Tensions ran very high between the two sides when they were addressing the Acting Chief Justice in her chambers. The heated argument was over the Section 12 of the High Court Act which talks to the administrate powers bestowed on the Chief Justice.
“The side representing Justice Majara argued that the acting Chief Justice must delegate her powers to allocate judges to this case (Justice Majara’s petition) and the other side argued that she does not have to delegate as that was purely an administrative matter,” a source said.
Another source said the heated arguments between the two sides spilled into the corridors after Justice Mahase decided that the matter will be heard on Tuesday (yesterday) in an open court.
“One of the lawyers representing Justice Majara went as far as wagging a finger at another lawyer (name withheld) from the opposing sides,” the source said.
Both sides refused to comment on record on the allegations.
The tensions however, spilled into the open court on Tuesday when Justice Mahase interrupted Adv Tele’s submissions and abruptly postponed the matter to next Thursday.
The Tuesday court session began with Justice Mahase telling the lawyers that she was not obligated to take any advice from them as to how she must “distribute this business” (of allocating judges to cases).
Adv Tele rose and stated that the Monday discussions in chambers were not arguments but merely informal discussions.
He further argued that it was not proper for Justice Mahase to make a ruling on a matter in which she was a respondent.
“You can’t make a ruling in a matter that you can’t preside over,” Adv Tele argued before Justice Mahase, adding, “you are a respondent in the matter”.
“You (Justice Mahase) have now convened the courts but you cannot preside over this matter because you are a respondent, your appointment is being challenged and therefore you are conflicted. We can’t make an argument before a party that is conflicted.
“No, it can’t be. Everything else cries out to the fact you can’t preside over this matter. It is not just a simple matter of administration. I am trying to refrain myself from arguing this matter but demonstrate that you should have nothing to do with this matter. Nowhere in the world can this happen,” Adv Tele said.
He further said that they were not purporting to tell Justice Mahase what to do but expected that the High Court administration should do the right in the matter. He said that Justice Mahase “cannot hear herself in the matter” and, appealed to her conscience “to do what is right”.
“You have no reason to fight. You know the right thing,” Adv tele stated.
On his part, Adv Ndebele argued that Justice Mahase was well within her rights to allocate judges to preside over Justice Majara’s petition. He said Justice Majara’s argument for Justice Mahase to delegate her authority to the Registrar to allocate judges was tantamount to making the Registrar a chief justice.
“The real issue is whether or not she (Justice Mahase) can allocate this matter to other judges who will preside over this matter. She has powers, as per section 12 of the High Court Act, to distribute and allocate the business of this honourable court. It is not your (Justice Mahase) choice to be a respondent,” Adv Ndebele said, adding that Justice Mahase was added on the list of the respondents to frustrate the process and ensure that she is conflicted.
Adv Ndebele further argued that if for any reason the acting chief justice was unable to perform her duties, the Prime Minister would have to advise King Letsie III to appoint a senior judge to perform her duties.
On his part, Mr Rasekoai said “there is absolutely no blemish that can prevent the acting chief justice from performing her duties. We remain unmoved on the matter.”
After the submissions from both sides, Justice Mahase said that she was empowered by the law to allocate cases to judges. She said there was nothing unique and untoward in her situation as the suspended Justice Majara had also allocated judges to matters that involved her.
She postponed the case to next Thursday.
