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Fresh legal headache for Chief Justice

Pascalinah Kabi

EMBATTLED Chief Justice Nthomeng Majara has a fresh legal headache after the acting Deputy Registrar, Mojela Shale, recently petitioned the High Court to compel her to release court documents relating to a case where Advocate Shale is challenging the appointment of Pontso Phafoli as the Acting Registrar of the High Court and Court of Appeal.

Justice Majara is currently involved in another court battle with Prime Minister Thomas Thabane in which she is seeking to have Dr Thabane interdicted from impeaching her over a litany of misconduct charges.

Dr Thabane wrote to Justice Majara on 27 April 2018 and asked her to ‘show cause’ why she should not be suspended and impeached over several misconduct allegations which include her alleged failure to preside over cases for two years.

Dr Thabane further accuses the chief justice of contributing to the paralysis in the judiciary by failing to take the appropriate disciplinary and punitive measures against her subordinates who neglect their duties to speedily hear cases.

Justice Majara has since petitioned the constitutional court to stop Dr Thabane from impeaching or taking any other disciplinary action against her.

And on Wednesday, Adv Shale added to Justice Majara’s legal headaches by petitioning the High Court for an order to compel her to release court documents relating to two cases in which Adv Shale is challenging the appointment of Ms Phafoli as acting Registrar of the High Court and Court of Appeal.

Adv Shale accused Justice Majara of “thwarting and perverting the course of justice” through her alleged refusal to release the documents which he says he requires to enable him to file replying affidavits in his challenge of Ms Phafoli’s appointment.

Adv Shale’s court battle with the Chief Justice began early this year when he (Adv Shale) filed a court case challenging the decision of the Judicial Service Commission (JSC) to appoint Ms Phafoli as acting High Court Registrar on 29 January 2018.

Adv Shale has argued that he had “legitimate expectation” to be appointed acting registrar after the Acting Registrar Lesitsi Mokeke went on a study leave early this year.

Adv Shale states that he should have been promoted ahead of Miss Phafoli or anyone else because he has been Acting Deputy Registrar for seven years.

But instead of following regulations that stipulate that an officer may be appointed in a “post that is in his or direct line promotion, Mr Shale says that the JSC picked Ms Phafoli who was way down the hierarchy to assume the post of acting registrar.

Adv Shale further believes that he was overlooked for promotion because Justice Majara suspects that he could leaked an audit report that revealed that Justice Majara was renting a M27 000 per month house which is far more than the M4 000 monthly rental that she is entitled.

In his latest court petition, Adv Shale argues that by refusing to release the court files, Justice Majara had contravened section 18 of the constitution by discriminating against him and all other litigants in the High Court whose case files were kept in the Civil Registry.

“The Registrar and not the Chief Justice, is the legal custodian of all the court records. Further the Registrar and not the Chief Justice is responsible for pre-trial and trial arrangements as well as allocation of cases,” Mr Shale argues.

“Incidentally, both the Chief Justice and the Registrar are conflicted in both CIV/APN/49/2018 and CIV/APN/86/2018 in that they are litigants as I am challenging their decisions and they are correctly cited herein. It is clearly against the precepts of natural law, the cornerstone of our jurisprudence, that a litigant can keep, and allocate a case he is involved in. They are metaphorically throwing me under the moving train by denying me access to the court’s files.

“The Chief Justice, as the supreme guarantor of human rights and promoter of fair trial and transparency in addition to protection of human rights, is thwarting and perverting the course of justice. In effect she is thwarting the precepts of open transparent justice,” Adv Shale said.

He added: “The hare cannot hunt the hunters. I am being unfairly prejudiced by the Chief Justice so that I …lose these important cases against her illegal and unethical decisions.”

In terms of the final relief, Adv Shale wants Justice Majara and the other respondents, Ms Phafoli and the Attorney General to show cause why the Chief Justice’s “continued possession and custody of court documents cannot be declared unlawful and irregular as they are in breach of natural justice, in that she (Justice Majara) has an interest in both matters…”




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