Pascalinah Kabi
PRIME Minister Thomas Thabane allegedly went back on his earlier decision to recommend the appointment of South African-born judge, Justice Yvonne Mokgoro, as the acting Court of Appeal President because he felt she was conflicted due to her previous working relationship with former Court of Appeal President Kananelo Mosito.
This was revealed in correspondences between Dr Thabane and Justice Mokgoro which were seen this week by the Lesotho Times.
Justice Mokgoro sits on the Court of Appeal. Her alleged abortive appointment as Acting President of the Court of Appeal first came to light when three prominent lawyers successfully challenged the 20 March 2018 appointment of Justice ‘Maseshophe Hlajoane as acting President of the Court of Appeal.
In February this year, King’s Counsels Motiea Teele, Zwelakhe Mda, Karabo Mohau and Attorney Qhalehang Letsika successfully challenged the reappointment of Justice Mosito to head the Court of Appeal. They successfully argued that Justice Mosito had previously been impeached for misconduct and the Constitutional Court upheld their appeal, saying that Justice Mosito “is not a fit and proper person” for the top job.
The court papers show that following the Justice Mosito setback, the government immediately moved to appoint Justice Mokgoro as the Acting President of the Court of Appeal on 27 February 2018.
However, the court papers further indicate that Dr Thabane advised His Majesty King Letsie III to replace Justice Mokgoro with Justice Hlajoane with effect from 20 March 2018.
It was on this basis that the trio of KC Mda, KC Mohau and Attorney Letsika once again petitioned the Constitutional Court to have the ‘removal’ of Justice Mokgoro reversed and her replacement with Justice Hlajoane declared null and void.
The fact that both Dr Thabane and Justice Mokgoro acknowledge in the correspondences that the latter was ultimately not appointed to the post could mean that the lawyers’ challenge of Justice Hlajoane’s appointment was based on the presumption of Justice Mokgoro’s appointment which never happened in the first place.
The lawyers argued that the appointment of Justice Hlajoane, who is currently serving as a senior judge in the High Court, is unconstitutional as it violates provisions stating that an incumbent (in this case Justice Mokgoro) can only be removed after a tribunal has been set up and recommended the removal.
They cited Justice Hlajoane, Dr Thabane, the Minister of Law and Constitutional Affairs, Lebohang Hlaele, the Minister of Justice and Human Rights, Mokhele Moletsane, Attorney General King’s Counsel Haae Phoofolo, Justice Mokgoro and His Majesty the King as first to seventh respondents respectively.
The government argued that the lawyers based their court challenge on a government gazette they had illegally obtained because it was never made public.
Up until now, it was not clear why the government went back on its decision to appoint Justice Mokgoro but correspondences between Dr Thabane and Justice Mokgoro seen this week by this publication have lifted the lid on the issue.
In the letters, Dr Thabane acknowledges Justice Mokgoro’s decision to recuse herself from sitting in the bench of the Court of Appeal to hear the case which Justice Mosito had lodged with the court seeking to overturn a judgement against his reappointment to head the apex court.
Dr Thabane accepted Justice Mokgoro’s argument that she could not be part of the Court of Appeal bench in the Mosito appeal because she was first recruited to the Court of Appeal on the recommendation of Dr Mosito.
Dr Thabane further acknowledged that in the same vein, Justice Mokgoro cannot and should not be Acting Court of Appeal president because the issue of conflict of interest would still arise.
This is due to the fact that among her duties as Acting Court of Appeal president, Justice Mokgoro would have to convene the apex court to hear Justice Mosito’s appeal against the Constitutional Court ruling against his reinstatement to the Court of Appeal.
The correspondence between Dr Thabane and Justice Mokgoro shows that before the termination of her appointment as Acting Court of Appeal president, Justice Mokgoro had already decided on a bench of Justices Hlajoane, Kriegler, Shongwe, Van de Westhuizen and Cachalia to hear Dr Mosito’s appeal.
Dr Thabane subsequently appointed Justice Hlajoane as Acting Court of Appeal president- a decision that was successfully challenged by King’s Counsels Mohau, Tele, Mda and Attorney Letsika.
Prior to the lawyers’ court challenge, Dr Thabane had written to Justice Mokgoro explaining that he would not proceed to advise King Letsie III to appoint her acting president because she had already indicated that there was a potential conflict of interest with regards to issues concerning Justice Mosito.
In a letter dated 7 March 2018, Dr Thabane said his take was that Justice Mokgoro recused herself because she was brought into the Court of Appeal bench in Lesotho on the recommendation of Dr Mosito.
Dr Thabane also clarified that he had not recommended her appointment but he had only written to her to obtain her consent before he could do so.
“You did well by recusing yourself. However, there is a further aspect of this issue which has attracted my attention. It is that since you recused yourself from hearing the matter, it would have been in order that you also declined the invitation to be appointed as an acting president of the court on the same principle (of conflict of interest) so that the government should have not expected you to convene the court for that purpose…It would have been improper to have you appointed to act as president of the court.
“Furthermore, I realise that you have interpreted my first letter to you as an appointment letter. I regret to inform you that while I had enquired from you whether you would have a problem with serving and requested you for your consent to serve as the acting president of the court, the appointment process has not gone through until now…,” Dr Thabane stated in his March letter to Justice Mokgoro.
In her reply on 13 March, Justice Mokgoro accepted Dr Thabane’s argument as to why she could not be recommended for the post of acting president of the appeal court.
“Although I had proactively proceeded with the process of operationalising the appeal court due to the urgency impressed upon me to hear the urgent matter (of Justice Mosito) when I was approached, I certainly appreciate that the acting appointment had then and has now not been effected.
“I would therefore under the circumstances…withdraw my availability to serve as acting president of the appeal court. I have already halted any further proactive work to convene a bench to hear the urgent matter and further operationalise the appeal court for the April session,” Justice Mokgoro wrote.
