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Drama in cabinet

by Sunday Express
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  • as ministers vent fury at Phoofolo over “secret” judges’ appointments

Pascalinah Kabi

THERE was drama in cabinet this week when some cabinet ministers vented their anger at the Attorney General, Advocate Haae Phoofolo, for sidelining them in the proposed recruitment of five new judges.

His Majesty has since turned down Acting Chief Justice ‘Maseforo Mahase and Advocate Phoofolo’s recommendations on the grounds that the two could not sit on their own and make recommendations on such a weighty matter without the input of other members Judicial Service Commission (JSC).

But that did not stop some ministers from attacking Adv Phoofolo on Tuesday for joining forces with Justice Mahase to recommend five people for appointment to King Letsie III without the knowledge and input of the government.

The five who were nominated by the JSC are Deputy Attorney General Tšebang Putsoane, lawyers ‘Maliepollo Makhetha, Tšabo Matooane, Mokhele Matsau and Moneuoa Kopo.

Law and Justice Minister Professor Nqosa Mahao had already criticised Justice Mahase and Adv Phoofolo for clandestinely recommending the five for appointment without consulting him as the responsible minister.

Justice Mahase and Adv Phoofolo had met on 20 August 2020 in their capacity as members of the JSC and recommended the appointment of five people to the High Court bench.

But Prof Mahao insisted that the two did not constitute a quorum and they could not recommend any appointments without the knowledge and participation of other members of the JSC. He even warned that if need be, he would challenge the duo’s actions in court.

According to well-placed government sources, His Majesty has since turned down Justice Mahase and Adv Phoofolo’s recommendations.

The sources said His Majesty had also ordered the JSC to reconvene with all its four members in attendance. The JSC comprises of the chief justice, the attorney general, the chairperson of the Public Service Commission (PSC) and a nominated judge.

The King only accepted the duo’s recommendation to appoint then Acting Judge Polo Banyane as a substantive judge. Justice Banyane was sworn in at the Royal Palace on Wednesday.

But as shown by the developments in cabinet on Tuesday, the furore over the judges’ appointments did not end with the King’s rejection of the nomination of the five and his order for a fresh sitting of the entire JSC.

According to some ministers, the Tuesday cabinet session degenerated into a noisy cacophony as some ministers vented their anger at Adv Phoofolo over his and Justice Mahase’s failure to consult them in the process of recruiting five new judges.

By virtue of his position as the government’s legal adviser, Adv Phoofolo sits in cabinet but Justice Mahase is not a member of cabinet.

According to the sources, ministers Thesele Maseribane (Communications, Science and Technology) and Likeleli Tampane (Gender and Youth, Sports and Recreation) led the way in attacking Adv Phoofolo.

The sources said all hell broke loose when Dr Majoro informed the cabinet of the royal invitation to the swearing-in ceremony of Justice Banyane on Wednesday.

“On Tuesday, the prime minister informed us that he had received a letter from Ntate (Monehela) Phosholi (Senior Private Secretary to the King), inviting the cabinet to the swearing-in of Justice Banyane as substantive judge the following day,” a source said.

“The prime minister went on to say that the government was not supposed to be taken by surprise by such developments. He urged Phoofolo to always inform and engage cabinet ahead of JSC meetings, especially when major decisions like the recruitment of judges were going to be made.”

Another source said while Dr Majoro was very professional and politely reprimanded Adv Phoofolo, ministers like Ms Tampane and Chief Maseribane “were not so polite”.

The source said the two ministers blasted Adv Phoofolo and bluntly told him that it was wrong for the JSC to recommend the appointment of judges without seeking the concurrence of the government.

“Tampane was sitting right behind Phoofolo and she could not hide her dissatisfaction with him. She made it clear that the government was not happy with him for going to the JSC meeting and handpicking people for appointment as judges without involving the cabinet. She was her usual feisty self and she just could not hide her feelings.

“Adv Phoofolo said he had noted the concerns of the cabinet and promised to convey them to the JSC.

“In his defence, he said this was not the first time that judges had been appointed in this manner. He said it had always been the practice. He reminded Maseribane that some judges had been appointed without consulting the cabinet when they were both ministers in 2012.

“Maseribane immediately replied by saying even if that had been the case, it was not right for the JSC to appoint judges without involving the cabinet,” the source said.

Adv Phoofolo and Chief Maseribane respectively served as ministers of Justice and Gender in the first government of former Prime Minister Thomas Thabane from 2012 to 2015.

Acting on the recommendation of the JSC in 2014, then Chief Justice appointed Justices Sakoane Peter Sakoane and Keketso Moahloli as acting judges. The two were confirmed as substantive judges last year.

Dr Majoro and Chief Maseribane’s mobile phones rang unanswered when called for comment yesterday. They did not respond to WhatsApp messages. Ms Tampane’s mobile phone was unreachable.

Adv Phoofolo yesterday said he had taken note of the cabinet’s concerns and he would convey them to the JSC.

“I have nothing to say on the matter except to reiterate what I said in cabinet over this very same matter.

“I told the cabinet that I had understood its sentiments on the issue and I will convey the government’s message to the Judicial Service Commission at its next sitting,” Adv Phoofolo told the Sunday Express.

His apparent climbdown is in sharp contrast to the JSC secretary, Adv ‘Mathato Sekoai. She has repeatedly attacked Prof Mahao for criticising the JSC over the recommendation of the five for appointment as judges. She accused the minister of attempting to interfere with the independence of the JSC.

Adv Sekoai said Justice Mahase and Adv Phoofolo were well within their rights to nominate candidates for appointment as judges. She said the duo formed a JSC quorum.

She also said since the JSC was not creating new posts but filing the vacant ones, it was not required to inform the government before recommending anyone for appointment.

“I do not know of any law which gives the government the power to interfere with the appointment of judges,” Adv Sekoai said in response to Prof Mahao saying he should have been consulted as the responsible minister.

Magistrates have also weighed in on the issue, questioning why their members have been consistently overlooked for promotion as judges.

None of the five recommended by Justice Mahase and Adv Phoofolo are magistrates.

This despite that a significant number of magistrates have been dispensing justice in the lower courts for 10 years or more. Some like Chief Magistrate ‘Matankiso Nthunya have been magistrates for 25 years.

Several lawyers and other legal experts have also criticised Justice Mahase and Adv Phoofolo for the “opaque” process leading up to the recommendation of the five for appointments as judges.

They support Prof Mahao’s argument that all appointments of new judges should be stopped until after the implementation of the judicial reforms. The judicial reforms are part of wider multi-sector reforms recommended by SADC to achieve lasting peace and stability in the country. It is envisaged that under the reforms, there will be a much more public and vigorous process of vetting any potential appointees to the bench as is done in South Africa and other many countries.

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