. . . another seven to be appointed “soon” to address crippling shortage of judges
Mohalenyane Phakela
TWO new judges, ‘Malebona Khabo and Realeboha Mathaba were yesterday sworn in by Chief Justice Sakoane Sakoane at the Royal Palace in Maseru.
Another seven are expected to be sworn in “soon” as the government moves to address a crippling shortage of judges which has been blamed for the huge backlog of cases in the High Court.
Justices Khabo (61) and Mathaba (46) yesterday took the judicial oath before Justice Sakoane at a ceremony that was also attended by His Majesty King Letsie III, Prime Minister Moeketsi Majoro, fellow judges and other government officials.
“I, ‘Malebona Khabo, do swear that I will in my capacity as judge in the High Court of Lesotho, administer justice to all persons without fear, favour or prejudice in accordance with the constitution and other laws and customs of Lesotho. So help me God,” Justice Khabo swore.
Justice Mathaba also swore a similar oath to administer justice without fear or favour.
The two judges join an under-staffed bench comprising of only seven judges, namely, Justices Sakoane, Tšeliso Monapathi, ‘Maseforo Mahase, Molefi Makara, Moroke Mokhesi, Keketso Moahloli and Polo Banyane.
All the judges, save for Justices Mahase and Mokhesi, attended the swearing-in ceremony. Also present was Zimbabwean Judge Charles Hungwe, who was specifically recruited to try high profile cases involving politicians, serving and former members of the security agencies.
Judicial Service Commission (JSC) secretary, ‘Mathato Sekoai, said the two new judges would be posted in Maseru. Justice Mathaba will sit in the Commercial Court while Justice Khabo would sit on the ordinary High Court bench.
Advocate Sekoai said the JSC had been given the greenlight by the government to hire an additional seven new judges.
She said two of the soon-to-be recruited judges would be posted to the Leribe High Court which is currently not functional due to lack of judges.
Justice Khabo is the former Labour Court president. Her curriculum vitae (CV) states that she is an expert in Labour Law and Alternative Dispute Resolution (ADR) mechanisms.
She completed her Bachelor of Arts in Law (BL) degree in 1979 and Bachelor of Laws Honours (LLB Hons) in 1983. Both degrees were attained at the National University of Lesotho (NUL). In 2000, she graduated with Masters in Labour Law from the London School of Economics and Political Science.
Justice Khabo began working as the legal officer in the then Ministry of Employment, Social Welfare and Pensions in 1985. She left in 1989 to become Senior Legal Officer in the then Ministry of Local Government, Urban & Rural Development.
She joined the judiciary as the Labour Court registrar in 2002. She became the court’s acting president in 2012 until 2015 when she was appointed substantive president. Justice Khabo retired from the Labour Court in March this year.
Justice Mathaba’s CV states that he has over 16 years of experience in senior roles in tax administration, the water sector, legal practice, prosecution as well as drafting bills, complex financing and subsidiary agreements.
He holds a BL and LLB Hons both from NUL. He furthered his studies at the University of Free State where he attained a Masters of Laws (Business Entities) in 2016.
He began practising as an advocate in 2002. In 2004, he joined the Lesotho Revenue Authority (LRA) as its legal officer. In 2007, he was promoted to be the authority’s Head of Litigations. Six years later in 2013, he was again promoted to the post of Commissioner for Enforcement. He served in that capacity until his departure from the LRA in 2018. He even served as acting LRA Commissioner General from 2015 to 2016. Upon leaving the LRA, he joined the Water and Sewerage Company (WASCO) as its chief legal officer and company secretary.
Justices Khabo and Mathaba were interviewed by the JSC on 16 August 2021 alongside other three shortlisted candidates, Moneuoa Kopo, Kuena ‘Mabotsoa Thabane and Mamotšelisi Khiba.
The five were publicly interviewed at ‘Manthabiseng Convention Centre by Justice Sakoane and fellow JSC members, Justice Banyane, Attorney General Rapelang Motsieloa and Public Service Commission (PSC) chairperson Moshoeshoe Sehloho.
Their appointment ends a long-drawn recruitment process which was marred by controversy when it was initiated by former acting Chief Justice Mahase and former Attorney General Haae Phoofolo in August 2020.
Justice Mahase and Advocate Phoofolo’s controversial bid to recruit five new judges without involving other JSC members was nullified in December 2020 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.
But the five were not appointed with authoritative government sources saying that King Letsie III had refused to appoint them on the grounds that judges had to be recruited by all the 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 also waded into the issue when he publicly attacked Justice Mahase and Adv Phoofolo for acting on their own without the active participation and input of their JSC colleagues.
The stand-off prompted the little-known 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 obscure 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 filed 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 court 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 then ordered a fresh process to recruit judges.
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.
The recruitment process was again plunged into controversy when it resumed in August. 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.
Ombudsman Tšeliso Mokoko, a former Defence and National Security principal secretary, was also overlooked.
They had all submitted their applications but the JSC only shortlisted Ms Khabo, Thabane and Khiba as well as Messrs Mathaba 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.
It is therefore seen as imperative that the JSC makes good on its promise and urgently recruit another seven judges. Should this happen, the number of judges will increase to 16.
