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Commission slams Law Society

by Sunday Express
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Law Society,  President Advocate Shale Shale

Law Society, President Advocate Shale Shale

Lekhetho Ntsukunyane

THE Judicial Service Commission (JSC) has condemned the Law Society of Lesotho for “involving third parties” in its correspondence with the organisation, thereby sending “the wrong message that the Commission is subject to control and direction of some authorities elsewhere”.

The JSC further expressed concern over an ultimatum it was given by the Society to comply with the latter’s “prescriptions with regard to when it (JSC) should have responded to your (Law Society) letter.”

This was in reference to Law Society president Advocate Shale Shale’s letter dated 17 April 2015, in which he sought “clarity” on why the JSC rejected the appointment of four judges nominated by Court of Appeal president, Dr Kananelo Mosito to preside over 38 cases which had been set for hearing during the first session of the court, scheduled for 20 April to 5 May. The rejection resulted in the indefinite postponement of the session, prompting Advocate’s letter on behalf of the Society.

In the letter, addressed to JSC Secretary Advocate Lesitsi Mokeke, Advocate Shale noted: “I am in receipt of a copy of a letter of the President of the Court of Appeal of Lesotho addressed to your office and dated 14 April 2015. The contents of that letter caused me to convene an urgent meeting in order to deliberate thereon.

“It is through that letter that we have learnt with a sense of shock that ultimately the Court of Appeal session scheduled for 20 April 2015 has been postponed sine die. According to the above letter, the Judicial Service Commission (hereinafter referred to as the JSC) resolved as follows on the request by the President of the Court of Appeal to advise on the appointment of the Justices of Appeal:

“The President’s letter is ‘acutely lacking in detail’ why four acting judges should be appointed because according to the JSC, there are still six Justices of Appeal appointed sometime back; Whenever a vacancy occurs, three names must be attached against the vacancy for the consideration of the JSC in order to avoid using the JSC as a rubberstamp; The JSC fails to appreciate why the local black market was not explored/tapped.”

Advocate Shale noted they, as Law Society members, understood the above reasons “are in a nutshell the cause for the postponement of the Court of Appeal session”.

However, he indicated in its sitting on 14 April 2015, the Council of the Law Society resolved that “it should seek clarity from the JSC on the matter so that the record can be set straight”.

Advocate Shale wrote: “You will recall that in terms of Section 132 (1) of the Constitution of Lesotho 1993, the Law Society of Lesotho does not form part of the JSC. However, in terms of Section 4 of the Law Society Act 1983, one of the paramount objects of the Law Society is to assist in the administration of justice and effect improvement in the administration or practice of law. It therefore, goes without saying that the Law Society of Lesotho is a major stakeholder in the administration of justice in this Kingdom, hence our peculiar interest in this matter.

“It is a matter of common knowledge that the JSC is exclusively vested with the constitutional powers to advice on the appointments of judges of the Court of Appeal. The relevant provision of the Constitution on this issue reads as thus: The Justices of Appeal shall be appointed by the King, acting in accordance with the advice of the Judicial Service Commission after consultation with the President”.

Advocate Shale observed after Dr Mosito’s appointment into office on 15 January 2015, four judges of the Court of Appeal resigned “and this was brought to the attention of the Chief Justice, who is Head of the Judiciary in Lesotho but most importantly, the Chairman of the JSC in terms of Section 132 (1) (a) of the Constitution.

“If that is the position, it is clear and without any doubt that the JSC is aware of the said resignations. The question then would be, what has the JSC done to-date regarding the appointment of replacement judges? Has the JSC exercised its constitutional powers to advise His Majesty, the King, to appoint judges to replace those that have resigned?”

Advocate Shale noted it was a matter of common knowledge that the Court of Appeal sits twice a year.

“It is my firm belief that the JSC is aware of this fact, unless if you would tell me otherwise. If the JSC has not advised His Majesty to appoint judges of the Court of Appeal to enable the sitting of the Court of Appeal this April, then it is our opinion, with greatest respect, that the JSC has dismally failed to discharge its constitutional duty. If that is so, the Council of the Law Society mandates me to request the JSC to furnish it with reasons why the Law Society of Lesotho cannot compel it through a writ of mandamus to discharge this function.”

He said among the 38 cases which were enrolled to be heard were “very serious and sensitive matters which affect the rights and liberties of the citizens of this Kingdom, including those who are in custody and who must know their fate. Certainly, these poor people are denied access to justice through a bureaucratic process unknown to them. We are apprehensive that the entire administration of justice and the rule of law will be seriously prejudiced if this matter is not attended to with the seriousness and commitment it deserves.”

He concluded due to the urgency of the matter, “We request a response by not later than close of business on Wednesday, 22 April 2015.”

The letter was copied to Chief Justice Nthomeng Majara, Justice Mosito and Justice Minister Moeketse Malebo.

However, the JSC was scathing in its response, with Advocate Mokeke noting in a letter dated  24 April 2015: “Reference is to your letter of 17 April 2015 which was accordingly tabled before the Judicial Service Commission for its consideration at its sitting held on 23 April 2015. After deliberations the Commission:

  • Expressed grave concern that you found it fit to communicate with it by involving third parties in the matter by way of copying to them correspondence meant for the Commission. In the view of the Commission, to do so was inappropriate. Among other things, such an approach may send the wrong message that the Commission is afterall subject to the control and direction of some authorities/persons elsewhere, which you know it is not.
  • Likewise, expressed grave concern for you to give it an ultimatum to comply with your prescriptions with regard to when it should have responded to your letter. The Commission regrets this.
  • Reiterated its earlier resolution whose foundational basis was that the Commission, as a body mandated by the Constitution to advise on the appointment of Justices of Appeal, has not been informed by the President of the Court of Appeal about the existence of any vacancies in the Court.
  • Reiterated the absolute need for any party having dealings with the Commission to observe the established procedure of the Commission that correspondence meant for it must be addressed to the Secretary to the Commission, being one of the reasons why the latter office was established under the Constitution. In exceptional cases (though not encouraged) it could be addressed to the Chairman of the body. But the point is that the Secretariat has been established precisely for that purpose. The Commission was mindful of a longstanding practice that has existed for years, to this effect, especially as between the office of the President of the Court of Appeal and the Commission.
  • Reiterated its earlier resolution that its well-established rule of procedure that to a vacancy must be proposed three names of candidates, be observed.
  • And the Commission wishes to point out to you that it is not correct to assert that it has failed to discharge its functions. It has procedure which it has created for itself on how to conduct its business. It insists on them every time they are flouted.
  • On the aspect of the contemplated litigation, you now know that the Commission has not as yet been informed about any vacancies in the Court of Appeal in the manner that accords with its procedures. You also now know about the Commission’s three-name rule; and lastly, whilst the Commission is not suggesting that this is a determinant factor this time, about the need, in the consideration of the Commission, for the President of the Court of Appeal to begin applying his mind to the policy of localising the Court of Appeal.
  • Lastly, the Commission finds it unfortunate that your first reaction to its letter to the Honourable President is to threaten it with litigation. However, the Commission feels that whether or not you proceed with the litigation is your prerogative to exercise.

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