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Clerk takes Chief Justice to task

By Tefo Tefo

MASERU — A High Court Judge’s clerk has challenged Chief Justice Mahapela Lehohla to start handling contested cases to reduce the backlog of cases that has been mounting for the past twenty years.
Thabang Mohafa, who is Justice Semapo Peete’s clerk, wrote to the chief justice on Monday saying he could help reduce the backlog if he starts hearing some contested cases like the other judges on the bench.
Mohafa sent the letter to the Registrar of the High Court and Court of Appeal, ’Mathato Sekoai, asking her to pass on his message to Justice Lehohla, her immediate boss.
The chief justice has not heard contested cases since 2009.
Since October 2009 he has been coming to the courtroom only on Mondays to deal with uncontested cases.
Uncontested cases are those whose appellants would have shown no interest in pursuing.
In those Monday sessions the chief justice will dismiss such cases and remove them from the roll.
Such cases are less engaging than contested ones that require a judge to be in court and make a ruling.
In the meantime contested cases continue to pile up as the other 10 judges battle with the ever-increasing workload.
The chief justice is the most senior judge on the Lesotho High Court bench which is made up of 11 judges.
Chief justices in countries like South Africa, Botswana, Zambia, Swaziland, Zimbabwe and others in the world preside over court cases.
Lesotho’s previous chief justices did the same.
The last time that the Chief Justice heard a case was in September 2009 when he presided over a matter in which Police Commissioner Malejaka Letooane was appealing against her conviction for contempt of court.
This was after magistrate Tšeliso Bale had slapped Letooane with a six-month jail term for failing to appear in court to testify in a car theft case.
On appeal, the chief justice set aside Bale’s judgment and Letooane was saved from going to jail.
Since then Justice Lehohla has not presided over a contested matter.
This has caused consternation on the bench with some judges reportedly complaining that while they are overwhelmed with mounting cases the chief justice is “concentrating on administrative duties”.
Mohafa also copied his memo to other High Court judges, most of who are understood to be quietly supporting his call on Justice Lehohla to start hearing cases like they do.
This paper also has a copy of that letter.
“The Chief Justice should dispense with uncontested cases and engage in arguable cases to assist in the reduction of the backlog of cases in the High Court,” Mohafa wrote.
“It has come to my attention that the backlog of cases awaiting hearing in the High Court is still endemic. I therefore humbly suggest that you advise the Honourable Chief Justice to hear contested matters,” said the memo dated August 9.
Sekoai, who normally comments on High Court matters, said she had not recieved Mohafa’s letter to the Chief Justice.
The High Court is battling to clear a case backlog that runs into thousands.
Some of the cases date as far back as 1992.
There are people who have been on trial for more than 20 years.
In other cases suspects and key witnesses have died.
A High Court judge who spoke on condition of anonymity for professional reasons confirmed receiving Mohafa’s letter which he said, “captures what we judges have been trying to tell the chief justice for some time now”.
“We (High Court judges) have been telling the chief justice that he should also deal with cases in order to reduce the backlog that is increasing every day,” the judge said.
The judge said some time last year they sent an emissary to the chief justice to implore him to hear contested cases “but nothing happened”.
“For some reason he did not take us seriously. He still doesn’t hear cases despite the fact that the bench is already short-staffed,” said the judge.
“The chief justice knows that we are overwhelmed.”
Another judge, who also spoke on condition of anonymity, said while other judges appreciate that the chief justice has other duties “they still believe that he should take on cases just like his predecessors used to do”.
“The role of a chief justice is not administrative. The registrar is the one who deals with the day-to-day running of the court,” said the judge.
The President of the Law Society of Lesotho, Zwelakhe Mda, said lawyers “strongly support” Mohafa’s call on the chief justice to start dealing with some cases.
“We as the law society have urged the chief justice to lead by example by dealing with cases. It’s on record that we have challenged the chief justice to preside over cases,” Mda said on Friday.
As the man who runs the High Court, Mda noted, the chief justice must lead by example.
“How is the chief justice going to discipline the judges if he doesn’t lead by example? The chief justice must lead from the front by hearing cases just like his predecessors used to do.”
Mda said the main problem was that there seems to be no accountability in the judiciary.
“Many people think that if you demand accountability from the judiciary you are threatening its independence. This is not the case. Every arm of the government must account for its actions,” Mda said.
“The head of the executive arm of government who is the prime minister accounts for his actions. The good thing is that if he does not account the people might vote him out when elections come. Who makes the chief justice accountable?”
“The parliament must deal with such matters. Until that happens we can implement as many measures as possible but the backlog of cases will remain.”
Mda said he fears that instead of taking Mohafa’s advice seriously the High Court authorities “will treat him like someone who has committed treason”.
“That judge’s clerk (Mohafa) is only saying things that have been said before. I recall that some time ago even the Court of Appeal President Justice Michael Ramodibebi urged the chief justice to lead by example. There is a general consensus on this matter,” he said.
“It beats any analysis why the chief justice does not hear cases. I wish I could speculate the reason for his decision. In the cases that he has handled in the past the chief justice has come up with brilliant judgments. He has produced some very good judgments.”
This is not the first time that Mohafa has stirred the hornet’s nest at the High Court.
Sometime last year he got himself in hot water after he wrote a damning letter to Sekoai advising her to step down or seek a transfer.
He accused Sekoai failing to manage the High Court.
A few weeks later the principal secretary for the Ministry of Justice, Retšelisitsoe Masenyetse, wrote Mohafa informing him that he was being charged for disrespecting the registrar and absenting himself from work.
Mohafa responded by lodging a constitutional case challenging Masenyetse’s authority to prefer charges against him.
After that Masenyetse wrote another letter to Mohafa but this time around he said the charges were preferred by the Judicial Service Commission (JSC).
The case is still pending but Mohafa now seems to be taking the battle to the Chief Justice who he wants to hear contested cases.

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