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Judicial Commission fights in Mahase’s corner

  • acting chief justice accused of using JSC to fight her personal battles

Pascalinah Kabi

IN fresh twist to All Basotho Convention (ABC) secretary general, Lebohang Hlaele’s bid to have Acting Chief Justice, ‘Maseforo Mahase, impeached for gross incompetence, the Judicial Service Commission (JSC), says it does not have the jurisdiction to discipline the chief justice and other judges.

The JSC passed the resolution at its 10 October 2019 meeting and also tasked Attorney General, Advocate Haae Phoofolo KC, to prepare a defence outline arguing that Mr Hlaele’s application to have the JSC impeach Justice Mahase should be thrown out on the grounds that the JSC does not have the jurisdiction to discipline her and other judges.

However, some judicial sources have lambasted Justice Mahase over the resolution, accusing her of using the JSC to fight her personal battle against Mr Hlaele.

The ABC secretary general recently launched a Constitutional Court application for an order to compelling the JSC to kickstart processes to have the acting chief justice impeached over what the politician describes as her gross incompetence.

Some judicial sources who spoke to the Sunday Express on condition of anonymity argue the JSC’s resolution is wrong because the JSC has a mandate to advise the prime minister to discipline judges where necessary. The sources also say that it was wrong for Justice Mahase to be part of the meeting that came up with the resolution in matter where she was clearly conflicted. As acting chief justice, Judge Mahase chairs the JSC.

The sources also accuse the top judge of double standards in that in her own affidavit to the Constitutional Court, she argues for the recusal of local judges from hearing the case brought against her by Mr Hlaele on the grounds that the JSC has pending disciplinary cases against some of the judges.

The Public Relations Officer of the Judiciary, ‘Mabohlokoa Mapikitla, did not respond to questions sent to her on the issue.

Mr Hlaele recently launched a Constitutional Court application for an order to compel the JCS to impeach Justice Mahase for gross misconduct and alleged incompetence in the handling of cases linked to the ABC pitting ABC leader, Thomas Thabane against his deputy, Professor Nqosa Mahao. Mr Hlaele, a son in law to the ABC leader, backs Prof Mahao in the infighting that threatens to tear apart the ABC and bring down the government.

But the Constitutional Court will only hear Mr Hlaele’s application after Justice Mahase’s counter-application to have all local judges recuse themselves from hearing the former’s application has been finalised.

Justice Mahase argues that the state should appoint foreign judges because all local judges are unfit for the purpose.

Judge Mahase said in her capacity as acting chief justice and chairperson of the JSC, she was obliged to deal with professional issues involving her colleagues. Some would naturally be unhappy with how she dealt with issues involving them. They could thus not be expected to be impartial when dealing with her case.  They should therefore all recuse themselves from hearing her case.

“As Acting Chief Justice, I am the chairperson of the JSC and as such, I have to deal with numerous complaints from members of the public about judges of the High Court. I also, in that capacity in the JSC, have (a) mandate, together with other members, to also deal with the discipline of some of my colleagues who are currently presiding over this case.

“Obviously, whatever negative or adverse decision the JSC may come to in the future, the concerned judge may feel that the JSC may have been adversely influenced by the chairperson because that particular judge may have presided over this matter. Consequently, I aver that this is a case where all judges of the High Court bench have to recuse themselves so that aspersions are not cast in the future.

“Currently I have with me a file in respect of my other colleague Justice Thamsanqa Nomngcongo where several people have complained about none delivery of judgements which have been pending before him,” Justice Mahase states in her court papers.

She said she was on the verge of recommending that the JSC conducts a hearing against Justice Nomngcongo.

She said this may result in the impeachment of Justice Nomngcongo. She said there were similar cases involving Justices Tšeliso Monaphathi and Keketso Moahloli who had on numerous occasions disregarded her orders to issue long overdue judgements.

But in the latest turn of events, Justice Mahase is said to have chaired a JSC meeting which resolved that it did not have any jurisdiction to discipline the chief justice or any of judges.

The resolution was made at the JSC’s meeting on 10 October 2019 in Maseru.

High Court Registrar Pontšo Phafoli communicated the JSC’s resolutions to Advocate Phoofolo in an 11 October 2019, requesting him to defend the JSC against Mr Hlaele who wants it to be compelled to recommend the impeachment of Justice Mahase.

Titled: Re: Judicial Service Commission Resolutions – 163rd Meeting, Ms Phafoli’s letter informs Adv Phoofolo KC that she was directed by the JSC to communicate the resolutions of the commission’s 10 October 2019 meeting “for your immediate action”.

“The office of the attorney general is instructed to defend the (Hlaele) case, particularly in line with its (JSC)’s resolutions…to the effect that the commission does not have jurisdiction over matters of disciplinary actions of either judges or the chief justice…The commission further observed that it was wrongly joined in the (Hlaele case) proceedings,” Ms Phafoli states in the letter.

But some judicial sources have accused Justice Mahase of using the JSC to fight her legal battles with Mr Hlaele.

The sources said it was wrong of the JSC to come up with a resolution, saying it could not recommend the impeachment of Justice Mahase when the Judicial Service Commission Act of 1983 stipulates that “the Commission shall make recommendations to the prime minister concerning the appointment, discipline and removal from office of judicial officers”.

Although the act does not specifically empower the JSC to recommend the disciplining and removal of the chief justice and other judges, the sources argue that Justice Mahase was practicing double standards in that she wanted the commission to impeach other judges who she accused of insubordination and incompetence in connection with their alleged failure to deliver judgements in long overdue cases.

“The ACJ is clearly using the commission to fight her own battles. How can a commission make such a resolution to protect her,” the source said.

Another source said there was a clear conflict of interest in that Justice Mahase was part of the meeting which came up with a resolution on a matter which “affects her directly”.






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