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JSC takes Mahao fight to the ConCourt


Pascalinah Kabi

FOR almost a month, it has been a bareknuckle fight where Law and Justice Minister, Professor Nqosa Mahao and the Judicial Service Commission (JSC) have publicly traded punches over the latter’s recommendation of the appointment of five new judges without the government’s knowledge.

That fight will now move to the rarefied theatre of the Constitutional Court. This after the JSC this week filed an affidavit in support of an application by the little-known White Horse Party to have Prof Mahao interdicted from interfering with the appointment of the judges.

The party wants the court to declare that the resolutions of JSC meetings are valid even if they are attended and passed by only two of the commission’s four members.

It further wants the court to interdict Prof Mahao from interfering with the decisions of the JSC, arguing that the commission must be allowed to function independently without any interference from the executive.

More importantly, the party wants the court to declare that Acting Chief Justice ‘Maseforo Mahase and then Attorney General Haae Phoofolo’s 20 August 2020 meeting, in their capacity as JSC members, was “validly held” and therefore King Letsie III is bound to act on their subsequent recommendation to appoint five new judges.

The five are the Deputy Attorney General Tšebang Putsoane, lawyers Tšabo Matooane, Mokhele Matsau, Moneuoa Kopo and Maliepollo Makhetha.

Justice Mahase and Advocate Phoofolo had met and recommended the appointment of the five to the High Court bench.

To date, the King has not acted on the recommendations. In fact, according to authoritative government sources, His Majesty turned down Justice 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 JSC members.

The JSC comprises of four members, namely the chief justice, the attorney general, the chairperson of the Public Service Commission (PSC) and a nominated judge.

Even before the King had rejected the recommendation, Justice Mahase and Adv Phoofolo had already torched a storm with Prof Mahao accusing them of meeting in secret and making the recommendations without consulting him as the responsible minister.

He said the duo did not even constitute a quorum of JSC members.

He also argued that the appointment of substantive judges should be held in abeyance until after the implementation of the judicial reforms recommended by SADC to ensure the best candidates are chosen in an open and transparent process.

But JSC secretary, Adv ‘Mathato Sekoai, who is also the High Court and Court of Appeal Registrar, immediately hit back at Prof Mahao saying the government had no business in the appointment of judges as that was the sole responsibility of the JSC as stipulated in the constitution.

She also defended Justice Mahase and Adv Phoofolo, saying they formed a quorum when they met and made the recommendations.

This week, she took the JSC’s fight with Prof Mahao further by filing an affidavit in support of the White Horse Party’s court application to compel the King to act on the JSC’s advice and appoint the five as High Court judges.

The JSC, Prof Mahao, Prime Minister Moeketsi Majoro, His Majesty King Letsie III, High Court Registrar Advocate ‘Mathato Sekoai, the National Reforms Authority and Adv Phoofolo are the first to seventh respondents respectively in the White Horse application.

In her affidavit filed on Tuesday, Adv Sekoai argues that the JSC has “broad and extensive powers” in relation to the appointment of judges and the executive arm of government has no role to play in the appointment of judges except for the chief justice and the president of the Court of Appeal.

“It means that the JSC has extensive and broad powers in terms of the Constitution in relation to the appointments in the judiciary as another arm of government.

“It also becomes clear that the executive arm of government has no role to play in the appointment of judges except the Chief Justice and the Court of Appeal President. The incumbents of these two positions are appointed by His Majesty the King acting on the advice of the prime minister…

“In practice, the executive is informed because it controls the budgetary disbursements to the judiciary. They are informed for the purposes of discharging their constitutional obligation as contemplated in section 118 of the constitution and for no other purpose,” Adv Sekoai states.

She argues that section 132 (10) of the constitution permits two members of the JSC to meet and come up with binding resolutions. Therefore, Adv Sekoai argues, such resolutions cannot be invalidated by people “who are not entitled to be present or participate at those (JSC) proceedings”.

She further argues that as acting chief justice, Judge Mahase had two votes- one as an ordinary JSC member- and the other as the commission’s chairperson.

Given this scenario, she argues that Justice Mahase and Adv Phoofolo therefore constituted a majority as they had three votes in a JSC which only has four members.

“The provisions of section 132 (10) of the constitution permit the JSC to act…notwithstanding any vacancy in its membership or the absence of any member. It is important to indicate that the same provisions make it abundantly clear that the proceedings of the JSC shall not be invalidated by the presence or participation of any person not entitled to be present at or to participate at those proceedings.

“…it is clear that any decision of the JSC shall require the concurrence of a majority of all the members thereof. It means given that there are four members as outlined above, two members sitting and where one of them is a chairperson make a majority. It is because in addition to his ordinary vote, the chairperson carries a casting vote. This is how the JSC has resolved the problem of quorum for years where two of its members would not be in attendance,” Adv Sekoai states.

She further argues that JSC has always operated in this manner where just two members make decisions and come up with resolutions which have always been “acted upon by the relevant authorities” without any fuss or objections from any quarter.

She cites a 21 September 2017 JSC meeting that was attended by only two members “and adopted a number of resolutions”.

“The meeting was attended by two members, namely Justice (Tšeliso) Monapathi, who was acting chief justice and Justice (Sakoane) Sakoane. The meeting recommended the appointment of a judge of the Court of Appeal and the extension of the contract of an acting judge of the High Court. In this meeting a magistrate was also appointed. All these resolutions were implemented and the recommendations acted upon by the relevant authorities.

“On 5 October 2017 the JSC consisting of two members, namely Justice Monapathi and Justice Sakoane… held its 120th meeting in which three acting judges of the High Court were appointed…All the resolutions were acted upon by the relevant bodies. The acting judges were appointed by His Majesty the King following the recommendation of the JSC…

“On 30 July 2020, the JSC held its meeting and the meeting was attended by two of its members, namely Madam Acting Chief Justice Mahase and Attorney General, Advocate Phoofolo…Notably, the meeting recommended the appointment of Justice (Polo) Banyane as a puisne judge of the High Court. This appointment was approved by His Majesty the King and the judge has already been sworn in as a permanent judge of the High Court at the Royal Palace.

“I have deliberately mentioned the name of Justice Banyane because her story is a matter of a public knowledge, namely that she was recommended for permanent appointment and that such appointment was approved by His Majesty the King…

“On 20 August 2020, the JSC held its 175th meeting in which two of its members attended, namely Madam Acting Chief Justice Mahase and Attorney General, Advocate Phoofolo. In that meeting five judges of the High Court were recommended for appointment by His Majesty after the JSC considered and came to the conclusion that they were the best candidates and suitable for appointment as judges,” Adv Sekoai said.

She argues that the duo acted in this manner because “the need to appoint new judges is a matter of urgency given the crisis that has bedevilled the High Court following the retirement and deaths of its members”.

She said the recent deaths of Justices Lebohang Molete and Lisebo Chaka-Makhooane justify Justice Mahase and Adv Phoofolo’s decision to recommend the appointment of five new judges.

Justice Molete died on 30 May 2020 from complications arising from a stroke.

Justice Chaka-Makhooane died from Coronavirus (Covid-19) on 14 July 2020.

Their deaths together with 31 July 2020 retirement of Justices Semapo Peete and Teboho Moiloa reduced the number of judges in the country to just eight.

Faced with this dire shortage of judges, Adv Sekoai says Justice Mahase and Adv Phoofolo had to act as they did last month.

“This year alone, 16 constitutional cases have been filed. The general litigation now counts into hundreds. Criminal matters run into hundreds as well. The same thing with commercial cases…

“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 the vacancies that were left by the resigning judge, the two retired judges and the two dead judges. The JSC was addressing a public outcry and all its members were agreed that there is need to make such appointments,” Adv Sekoai states.

The resigning judge she speaks of is the Botswana Judge Kabelo Lebotse who was recruited to preside over high-profile criminal cases involving politicians, serving and former members of the security agencies.

It is not clear why she says Justice Lebotse, a foreign judge specifically recruited to try cases that the JSC, government and SADC all agreed should be heard by foreign judges, should now be replaced by a local judge.

In questioning Justice Mahase and Adv Phoofolo’s actions, Prof Mahao had argued that although it was not necessarily illegal for the JSC to make recommendations, the government felt that the JSC was not representative enough of all key stakeholders as it only had four members.

He said the government therefore felt that substantive appointments of judges had to be deferred until after the implementation of the judicial reforms when the JSC had been expanded to include representatives of law societies, law lecturers and other interested groups.

It remains to be seen how he will respond to the White Horse application and the JSC’s supporting affidavit.

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