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Govt suffers another court blow

  • As Justice Hlajoane appointment as Court of Appeal President is challenged
  • Govt initially appointed South African Justice Yvonne Mokgoro to the position

Tefo Tefo

CONTROVERSY has once again marred the government’s quest to appoint the Court of Appeal President after three prominent lawyers on Friday filed an urgent Constitutional Court application seeking to reverse the recent appointment of Justice ‘Maseshophe Hlajoane as the Acting President of the Court of Appeal.

Justice Hlajoane appointed on 20 March this year and this reportedly follows the termination of the appointment of Justice Yvonne Mokgoro who had initially been appointed to the position in an acting capacity on 27 February 2018.

The latest setback follows the reverse which the government suffered after the Constitutional Court last month ruled against the re-appointment of Justice Kananelo Mosito following an application by King’s Counsel Motiea Teele, Zwelakhe Mda, Karabo Mohau and Attorney Qhalehang Letsika.

The quartet had challenged the appointment of Justice Mosito on the grounds that he had previously been impeached for misconduct and the Constitutional Court upheld their appeal, saying that Justice Mosito “is not a fit and proper person” for the sumptuous job.

The court papers show that following the Justice Mosito setback, the government immediately moved to appoint Justice Yvonne Mokgoro as the Acting President of the Court of Appeal on 27 February 2018.

Justice Mokgoro is a South African national who sits on the Court of Appeal as one of the judges.

However, Justice Mokgoro’s was a short-lived appointment as the court papers further indicate that Prime Minister Thomas Thabane, advised His Majesty, King Letsie III to replace her with the appointment of Justice Hlajoane with effect from 20 March 2018.

It was on this basis that the trio of KC Mda, KC Mohau and Attorney Letsika once again petitioned the Constitutional Court on Friday to have the removal of Justice Mokgoro reversed and her replacement with Justice Hlajoane declared null and void.

The trio argue that the appointment of Justice Hlajoane, who is currently serving as a senior judge in the High Court, is unconstitutional as it violates provisions stating that an incumbent (in this case Justice Mokgoro) can only be removed after a tribunal has been set up and recommended the removal.

They cited Justice Hlajoane, Dr Thabane, the Minister of Law and Constitutional Affairs, Lebohang Hlaele, the Minister of Justice and Human Rights, Mokhele Moletsane, Attorney General King’s Counsel Haae Phoofolo, Justice Yvonne Mokgoro and His Majesty the King as first to seventh respondents respectively.

The trio want the court to suspend the swearing-in of Justice Hlajoane as Acting President of the Court of Appeal and they want him to be stopped from discharging the functions of the Court of Appeal president pending finalisation of the case, as an interim relief.

Substantively, they want an order “that the removal of Madam Justice Yvonne Mokgoro from office as acting President of the Court of Appeal is null and void and of no force and effect to the extent that it has not met and followed the provisions of section 125 of the Constitution”.

“The decision of the second respondent (Dr Thabane) to recommend the appointment of the first respondent (Justice Hlajoane) to His Majesty the King and the subsequent appointment (should be) reviewed and set aside as irregular and unconstitutional.

They also want an order declaring the appointment of Justice Hlajoane as “unconstitutional in that the first respondent could not validly be appointed into a position that had not validly become vacant in terms of the constitution”.

Attorney Letsika also filed his affidavit to support the application, stating among other things that Justice Mokgoro was removed when she had already began preparations to convene the Court of Appeal.

He says he became aware that Justice Mokgoro was already making preparations when he received an e-mail from the Assistant Registrar, ‘Matieho Mothobi, informing him that Justice Mosito had appealed against the Constitutional Court’s decision to reverse his appointment as Court of Appeal president.

“Following her appointment, Justice Mokgoro commenced preparations for holding of the session of the Court of Appeal.

“Through the Assistant Registrar on 5 March 2018, an e-mail to the counsel and attorneys appearing in the matter of Qhalehang Letsika and three others versus Dr Kananelo Mosito and four others Constitutional Case number 16/2017 was authored indicating that the appeal in the said matter was due to be heard on the date to be finalised. The email also informed the said practitioners of the panel of judges that she had selected to preside over the (Justice Mosito) matter.

“The said e-mail went further to convey the request by Justice Mokgoro for any objections from the practitioners involved in the appeal to the composition of the panel (to preside over Justice Mosito’s appeal) on or before 6 March 2018,” Attorney Letsika states.

Attorney Letsika further alleges that the removal of Justice Mokgoro was done when the date of hearing for Justice Mosito’s appeal was about to be announced.

“The removal (of Justice Mokgoro) followed an e-mail correspondence from the Assistant Registrar that the hearing date (for Justice Mosito’s appeal) would be communicated to us in due course.

Attorney Letsika also makes scathing remarks concerning Dr Thabane and Justice Hlajoane accusing both of being unreasonable.

“Both the first and second respondents (Justice Hlajoane and Dr Thabane respectively) acted unreasonably in all the circumstances in that no person acting properly could have done what they have done.

“The decision of the second respondent (Dr Thabane) to advise His Majesty to appoint the first respondent as the acting President of the Court of Appeal is so unreasonable in its defiance of logic or of accepted moral standards that no reasonable person who had applied his mind to the question to be decided could have arrived at it,” Attorney Letsika further states.

He states that in advising His Majesty to appoint Justice Mosito, Dr Thabane “acted arbitrarily, irrationally and unreasonably”.

“There is no way in which the second respondent could have considered himself authorised to remove Justice Mokgoro as the President of the Court of Appeal and by stroke of a pen replace her with the first respondent. Had he applied his mind he would have known that Justice Mokgoro could only be removed after the due process set out in the constitution.”

“The first respondent (Justice Hlajoane) as a sitting judge is aware that she could not be appointed into an office of acting president where the incumbent (Justice Mokgoro) had not been validly and lawfully removed. She must have been aware that the appointment of Justice Mokgoro has not been lawfully terminated.

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