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Acting Chief Justice sticks to her guns

…to appoint panel of judges for Justice Majara’s appeal

Pascalinah Kabi

ACTING Chief Justice ‘Maseforo Mahase recently stuck to her guns and ruled that she is going to oversee an administrative process of assembling a panel of judges to hear and rule in a case which suspended Chief Justice Nthomeng Majara is challenging her suspension.

The Friday ruling came hardly a month after Justice Majara’s legal team sought to have Justice Mahase delegate her powers to allocate judges for the case in which Justice Majara is challenging the government’s decision to suspend her from office on 11 September 2018.

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 Mahase as the Acting Chief Justice.

Advocate Motiea Teele (KC) appears on behalf of Justice Majara while Advocate Koili Ndebele represents Minister of Law and Constitutional Affairs, Justice Mahase and His Majesty King Letsie III. Attorney Monaheng Rasekoai represents Attorney General in the matter.

On 25 September 2018, Adv Teele argued that it was improper for Justice Mahase to rule 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 Teele 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 Teele 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 thing 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 Teesle stated.

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; with Adv Ndebele saying 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”.

At the time, 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.

And on Friday, Justice Mahase stuck to her guns and ruled that she was going to exercise her administrative powers of assigning Justice Majara’s case to a panel of judges that will be assembled as soon as possible.

“In the result, I make the following directive: in exercise of my powers as Acting Chief Justice, I have an administrative duty to see to the regulation of the distribution business of the court, including with respect of the present matter.

“The matter will be assigned to a panel of judges to be assembled as soon as possible as per the Acting Chief Justice’s administrative directive. The registrar will inform the parties of the dates on which the judges will be available,” Justice Mahase said.



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