Mohalenyane Phakela
ACTING Chief Justice, ‘Maseforo Mahase, yesterday won her Constitutional Court bid for the recusal of all local judges from presiding over All Basotho Convention (ABC) secretary general, Lebohang Hlaele’s application for her impeachment.
Yesterday, the Constitutional Court bench comprising of Justices Tšeliso Monapathi, Semapo Peete and Keketso Moahloli ruled in favour of Justice Mahase. However, the three judges who issued their verdict in chambers, did not give reasons for their decision, saying they would only do so in 14 days’ time.
Soon after the judgement was delivered, Mr Hlaele’s lawyer, Attorney Koili Ndebele, told the Lesotho Times that they would have to wait until the judges provide reasons for their decision before deciding how best to proceed with their case against Justice Mahase.
“The judges have decided to recuse themselves over our matter but we are optimistic that it will eventually be heard,” Attorney Ndebele said, adding, “We will wait for the full judgement to know the judges’ reasons and that will help us determine our next move”.
The Constitutional Court first heard arguments from the applicants and respondents’ lawyers on 2 October 2019 and reserved judgement to yesterday. Attorney Ndebele appeared alongside Attorney Monaheng Rasekoai who represented the Law Society of Lesotho which was cited as the second respondent in Justice Mahase’s recusal application. South African Senior Counsel, Advocate Guido Heinz Penzhorn, appeared for Justice Mahase whose co-applicants were the Judicial Service Commission (JSC), Prime Minister, Attorney General and His Majesty, King Letsie III.
Justice Mahase’s recusal case was based on an application by Mr Hlaele to have her impeached over what the politician describes as her gross incompetence. Mr Hlaele accuses Justice Mahase of several acts of commission and omission which he says have put Lesotho’s judiciary into disrepute, warranting her removal from the bench. Mr Hlaele is seeking an order for the Judicial Service Commission (JSC) to kick-start processes to have the acting chief justice impeached.
But Judge Mahase fired back with her Constitutional Court application for the recusal of Lesotho’s entire bench from hearing Mr Hlaele’s case. She accused most of Lesotho’s High Court judges of gross incompetence. She said feared that some will rule unfavourably against her because of her differences with them. Some had been insubordinate and refused to take instructions from her since her appointment as acting chief justice, she claims. Ironically, Judge Mahase cited Justices Moahloli and Monapathi, the judges in her recusal case yesterday, among the “insubordinate” judges.
“As acting chief justice, I am the chairperson of the JSC and as such I have to deal with numerous complaints from members of the public about judges of the High Court. I also in that capacity in the JSC have mandate, together with other members, to also deal with the discipline of some of my colleagues who are currently presiding over this case.
“Obviously, whatever negative or adverse decision the JSC may come to in the future, the concerned judge may feel that the JSC may have been adversely influenced by the chairperson because that particular judge may have presided over this matter. Consequently, I aver that this is a case where all judges of the High Court bench have to recuse themselves so that aspersions are not case in the future,” Justice Mahase said in her court papers.
She also accused other judges — Justices Thamsanqa Nomngcongo and Molefi Makara — of refusing to take orders from her.
She said it was also important for all local judges to recuse themselves from the case on the grounds that the country was presently polarised on political lines to an extent that the public was always going to be suspicious of any outcome of the case against her.
Yesterday’s court decision in Justice Mahase’s favour means that Mr Hlaele’s application against her will be heard by foreign judges.
Three foreign judges — Zimbabwean Charles Hungwe and Botswana Justices Onkemetse Bashi Tshosa and Kabelo Kenneth Lebotse have already been sworn in by Justice Mahase to preside over the politically sensitive criminal cases involving politicians, serving and former members of the security agencies.
It remains to be seen whether or not the three judges will preside over Mr Hlaele’s application or others will brought in for the purpose.
