…as human rights body wants Registrar stripped of Sheriff powers
…argues current system threatens judicial independence and exposes Basotho to abuse
Moorosi Tsiane
HUMAN rights body Section 2 has launched a Constitutional Court challenge against the Judiciary and several other institutions, seeking to dismantle what it describes as an unconstitutional “three-in-one” system that combines the powers of Registrar, Sheriff and Deputy Sheriff within the Judiciary.
Section 2 president, Kananelo Boloetse, argues that the current legal framework undermines the separation of powers, threatens judicial independence and erodes public confidence in the administration of justice.
The Judiciary, Chief Justice Sakoane Sakoane, the Registrar of the High Court and Court of Appeal, Advocate Mathato Sekoai, the Minister of Law and Justice, Richard Ramoeletsi, Parliament of Lesotho, the Law Society of Lesotho, the Judicial Officers Association of Lesotho, the Sheriffs and Deputy Sheriffs of the High Court and Court of Appeal, the Lesotho Mounted Police Service (LMPS) and the Attorney General, Advocate Rapelang Motsieloa, have been cited as the first to tenth respondents, respectively.
In his founding affidavit, Mr Boloetse argues that the current system unnecessarily places executive functions within the Judiciary.
“The statutory scheme complained of herein clamps the office of the Registrar together with that of the Sheriff and Deputy Sheriffs, thereby offending the doctrine of separation of powers and the constitutional guarantee of judicial independence,” he states.
According to Mr Boloetse, the arrangement exposes the courts to work that falls outside their judicial functions, while potentially placing vulnerable litigants and judgment debtors at risk.
“It unnecessarily burdens the courts with the non-judicial executive work of enforcing the law and risks violations of the dignity, integrity and effectiveness of the courts,” he argues.
He further contends that the system could expose people facing eviction or execution against their property to violations of their constitutional rights.
Registrar at centre of challenge
At the heart of Section 2’s case are the legal definition and functions of the Registrar under the Administration of Justice Act of 2011 and Rule 3 of the High Court Civil Litigation Rules of 2024.
Mr Boloetse points out that the Administration of Justice Act defines the Registrar as a judicial officer and places the office at the centre of the administration of the courts.
He says Sections 3 and 6 of the Act designate the Registrar as a judicial officer and chief administrator of the Judiciary, with principal authority over the administration and day-to-day functioning of the courts.
The problem, he argues, arises when the same office also assumes the role of Sheriff.
“Notwithstanding the conflict of duties inherent in the arrangement, the Sheriff is defined as the Registrar. In effect, the Registrar doubles as the Sheriff despite being the administrator of the Judiciary and not part of the Executive,” Mr Boloetse argues.
He says the Registrar may also appoint Deputy Sheriffs, creating what he describes as a dangerous concentration of powers.
“The Registrar, who is also the Sheriff, may appoint the Deputy Sheriffs, effectively creating a three-in-one structure of Registrar-Sheriff-Deputy Sheriff,” he states.
Mr Boloetse argues that Rule 3 of the High Court Civil Litigation Rules, 2024, reinforces the arrangement by defining the Sheriff as the Registrar and including persons appointed by the Registrar as Deputy Sheriffs.
He says the result is that the Judiciary, through the Registrar, becomes involved in both the issuing and enforcement of certain execution processes.
According to his affidavit, Registrars may issue orders relating to the sale in execution of property in certain circumstances without the involvement of a judge, although the sale in execution of residential property requires judicial oversight under the applicable court rules.
The Sheriff and Deputy Sheriffs then carry out the execution of the resulting orders.
Mr Boloetse argues that this creates a constitutional problem, because the same institutional structure becomes involved in both judicial processes and their physical enforcement.
“The Judiciary effectively becomes involved both in the issuing of execution processes and, through the Sheriff and Deputy Sheriffs integrated into the court structure, in their physical enforcement,” he argues.
‘Issuer and enforcer’
Mr Boloetse says Sheriffs and Deputy Sheriffs perform some of the most intrusive functions in the civil justice system.
Their duties include executing court orders, attaching and removing property, enforcing evictions, freezing assets and overseeing processes that may ultimately result in the transfer of property.
He argues that combining these enforcement functions with the administration of the courts creates actual or perceived institutional bias.
“The integration of the Sheriff’s office into the court structure creates actual and/or perceived institutional bias, in which the Judiciary acts as both the issuer of an order and its physical enforcer,” Mr Boloetse states.
“This integrated system of issuer and executor undermines the critical checks and balances required by the rule of law.”
He argues that the Registrar should not have control over the appointment of Deputy Sheriffs while simultaneously being involved in issuing execution processes and overseeing the structure responsible for enforcing them.
“The rule of law demands that these functions be kept separate,” he argues.
Mr Boloetse warns that concentrating the functions within one structure could increase the risk of abuse.
“Concentrating them within one structure increases the risk of collusion, possible bribery, corruption, abuse of office and administrative fraud,” he states.
He says Lesotho’s framework differs from institutional arrangements in other constitutional democracies, including South Africa and Botswana, where the Sheriff operates independently of the Judiciary.
He further argues that there is an irrational and discriminatory distinction between the enforcement of criminal and civil processes.
Criminal processes, he notes, are enforced by the LMPS, an institution independent of the Judiciary, while civil processes are enforced through the court system under the Registrar-Sheriff arrangement.
“The principles and rationale underlying the independent enforcement of criminal orders apply equally to civil orders and processes,” he submits.
“It is irrational to insist on separation between the courts and the police in criminal matters while failing to maintain similar institutional separation when it comes to the enforcement of civil process.”
Accountability concerns
Mr Boloetse also raises concerns about accountability when Deputy Sheriffs execute court orders.
He argues that because Deputy Sheriffs operate as extensions of the Registrar-Sheriff structure, accountability may become blurred when property is wrongly attached or execution is unlawfully carried out.
“Liability for illegal execution and wrongful attachment of property ultimately falls substantially upon the State and/or the Judiciary, to the prejudice of judicial integrity,” he states.
“This dilutes professional accountability and damages public confidence in the administration of justice.”
According to Mr Boloetse, ordinary litigants may perceive the courts, the Registrar-Sheriff, Deputy Sheriffs, banks and judgment creditors as components of a single system.
“That perception is contrary to the fundamental principle that justice must not only be done but must manifestly be seen to be done,” he says.
He argues that the arrangement undermines the appearance of impartiality, transparency and independence required in the administration of justice.
Constitutional overhaul
Section 2 wants the court to declare unconstitutional the legal provisions that define and link the offices of Registrar, Sheriff and Deputy Sheriff.
The organisation wants a declaration that the relevant provisions of the Administration of Justice Act, read together with Rule 3 of the High Court Civil Litigation Rules, are unconstitutional to the extent that they place Sheriffs and Deputy Sheriffs within the Judiciary.
Mr Boloetse argues that the arrangement violates the doctrine of separation of powers and institutional independence protected under Sections 54, 86 and 118 of the Constitution.
Section 2 also wants the court to find that the current arrangement actually or potentially undermines public confidence in the courts and the administration of justice, particularly in matters involving the sale in execution of property.
Mr Boloetse further argues that the system creates unjustified institutional discrimination by treating the executive enforcement functions of Sheriffs differently from those of the LMPS.
“The Sheriffs and Deputy Sheriffs should be recognised as an executive arm of government and not as agents of execution creditors or the Judiciary,” he submits.
Section 2 wants any declaration of constitutional invalidity suspended for 12 months, to give Parliament and the Chief Justice time to introduce the necessary legislation and rules.
It is also seeking an order directing Parliament and the Chief Justice to take steps to preserve the separation of powers and protect the independence, dignity, integrity and effectiveness of the courts.
Among its proposed reforms, Section 2 wants legislation and rules that would remove the institution of Sheriffs and Deputy Sheriffs from the Judiciary and the office of the Registrar.
It further wants a new framework under which Sheriffs and Deputy Sheriffs would be appointed independently, rather than by the Registrar, with appropriate oversight mechanisms to ensure accountability, independence, competence and diligence.