Mohalenyane Phakela / Pascalinah Kabi

THE Judicial Service commission (JSC) has bemoaned the crippling shortage of judges which has resulted in a huge increase in the backlog of criminal and constitutional cases.

This was disclosed by JSC secretary, Advocate ‘Mathato Sekoai, in her court affidavit filed in opposition of Law and Justice Minister’s counter-application for the nullification of the process initiated by Acting Chief Justice ‘Maseforo Mahase and Attorney General Haae Phoofolo to recruit five new judges.

Adv Sekoai is JSC secretary by virtue of being the registrar of the High Court and Court of Appeal. Her affidavit represents Justice Mahase who authorised her to depose it.

So dire is the shortage of judges that, according to Adv Sekoai, the commercial division of the High Court has been forced to close shop.

Adv Sekoai also reveals that the JSC has been left with no choice but to request foreign judges, Charles Hungwe and Onkemetse Tshosa, to try ordinary criminal cases outside their scope of work.

Justices Hungwe (from Zimbabwe) and Tshosa (Botswana) were among three foreign judges who were brought in by the JSC specifically to try high profile criminal cases involving politicians, serving and former members of the security agencies.

The other Botswana judge, Justice Kabelo Lebotse resigned in May this year over what judicial sources said was inadequate remuneration, lack of medical aid cover and generally poor working conditions.

Justice Mahase and Adv Phoofolo met in their capacity as JSC members on 20 August 2020 and recommended that His Majesty King Letsie III appoints Deputy Attorney General Tšebang Putsoane, lawyers Tšabo Matooane, Mokhele Matsau, Moneuoa Kopo and Maliepollo Makhetha as High Court judges.

But government sources say King Letsie III refused to appoint them on the grounds that the recommendations should not have been made by only two members of the JSC.  His Majesty is said to have ordered the JSC to reconvene with all its members in attendance and revisit the issue.

Following the King’s failure to appoint the five, the White Horse Party last month filed a Constitutional Court application for an order compelling His Majesty to act on the JSC’s recommendations and appoint the five.

The unheralded political outfit also wants Prof Mahao to be interdicted from interfering with the work of the JSC and its independence.

Prof Mahao responded by filing a counter-application to have Justice Mahase and Adv Phoofolo’s recommendations nullified on the grounds that they were done without the quorum of JSC members. He also argues that their decisions were invalid on the grounds that they did not inform him as the responsible minister.

He wants the court to order the JSC to furnish him with the record of its proceedings which informed the entire process culminating in the recommendation of the appointment of the five as judges.

He also wants the JSC records to include the names of the shortlisted candidates for consideration as judges, the names of people and or institutions who nominated the candidates, the number of considered candidates and the criteria employed in selecting the five candidates for appointment.

The JSC, White Horse Party, King Letsie III, Adv Sekoai, the National Reforms Authority, The Law Society of Lesotho, the Lesotho Lawyers for Human Rights, the Independent Electoral Commission (IEC) and the Registrar of Societies are the first to ninth respondents respectively in the application.

But Justice Mahase and Adv Sekoai have hit back by arguing that the nomination of judges is the sole responsibility of the JSC and there is nothing binding them to inform Prof Mahao or any other politician as they have no roles to play in the process.

In her court affidavit filed on Tuesday, Adv Sekoai also argues that Justice Mahase and Adv Phoofolo had to act fast to ease the crippling shortage of judges in the High Court which has not only led to the closure of the Commercial Court but also resulted in a huge increase in the backlog of criminal and constitutional cases.

Back in 2018, judicial sources estimated the backlog of cases at more than 4000. At the time, there were 12 High Court judges.

But now there are only eight judges left to hear all the cases after the May and June 2020 deaths of Justices Lebohang Molete and Lisebo Chaka-Makhooane and the retirement of Justices Semapo Peete and Teboho Moiloa on 31 July 2020.

The eight remaining judges are Justice Mahase and Justices Tšeliso Monapathi, Thamsanqa Nomngcongo, Molefi Makara, Sakoane Sakoane, Moroke Mokhesi, Keketso Moahloli and Polo Banyane.

Commenting on the judicial crisis in her affidavit, Adv Sekoai states that, “the delay in the appointment of judges for the High Court and the Commercial Division tends to impede and adversely impact on the administration of justice”.

“The current situation is that there are only eight members of the High Court who serve the entire country. The Chief Justice has to discharge administrative and official duties such as attending government functions and dealing with daily administrative issues in addition to discharging judicial functions.

“As things stand, the commercial division of the High Court does not have judges given that two of its members (Justices Molete and Chaka-Makhooane) passed away.

“This has impacted negatively on the operations of the High Court given that urgent commercial matters have had to be allocated the remaining judges of the High Court. There has been public outcry about this state of affairs.

“It is important to point out that the current judges are inundated with all types of litigations, with constitutional cases growing each day”.

“This year alone, 16 constitutional cases have been filed as at the time I depose to this affidavit. The general litigation now counts into hundreds, criminal matters run into hundreds as well. The same thing with commercial cases. I am not referring to cases that have had to be postponed due to the untimely death of judges. I am not referring to cases that will have to be heard afresh because they were partly completed before the retiring and deceased judges.”

Adv Sekoai states that faced with this dire situation, Justice Mahase and Adv Phoofolo were compelled to meet and make the 20 August recommendations to King Letsie III to ease the crisis.

“Faced with these reports, the JSC considered that it was in the public interest that additional judges be appointed. In other words, the appointments made on 20 August 2020 were intended to fill in the vacancies that were left by the two retired judges and the two deceased judges. The management of the High Court identified the need to fill vacancies of the retired and deceased judges in view of the backlog of cases.

“It was in that context that the Acting Chief Justice headhunted suitable candidates in line with an established practice in this regard,” Adv Sekoai states.

Prior to filing his court application, Prof Mahao had argued that the appointment of new judges should be held in abeyance until after the implementation of judicial reforms as part of wider multi-sector reforms aimed at achieving lasting peace and stability in Lesotho.

He said the envisaged judicial reforms would consider expanding the JSC from its current four members to include other stakeholders like the Law Society of Lesotho and law lecturers in line with international best practices. He said only then would new judges be recruited in an open and transparent processes which included advertising vacancies and subjecting the shortlisted candidates to public interviews. This is unlike the current situation where judges are appointed in opaque processes.

Prof Mahao had suggested that until the implementation of the reforms, the JSC should consider appointing acting judges to deal with the huge backlog of cases.