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Judicial commissioners drag Justice Monaphathi to court

Tefo Tefo

TWO judicial commissioners have dragged Acting Chief Justice Tšeliso Monaphathi to court for making them subordinates to chief magistrates.
In their papers filed before the High Court on Thursday last week, Rabuka Chalatse and Kokoto Mathaba, want Justice Monaphathi’s pronouncement nullified “because he acted beyond the powers conferred on him by provisions of the Subordinate Courts Act Number 9 of 1988”.

The two commissioners also want Justice Monaphathi’s directive declared void “because they are in contravention of the Administration of the Judiciary Act of 2011”.
In his lengthy affidavit, Mr Chalatse notes: “On or about 4 April 2014, I received a letter from the Chief Magistrate — Northern Region (‘Makampong Mokhoro) and Acting Chief Magistrate — Central Region (‘Matankiso Nthunya) dated March 24, 2014.

“The effect of that letter was for me to assume a role in the magistracy from 1 April 2014, as a magistrate.
“I was taken aback by the contents of the letter since I am not a magistrate but a judicial commissioner.
“I asked my lawyers to inquire from Ms Nthunya regarding the basis on which she relied when writing the letter.
“There has never been any response from Ms Nthunya.”

Mr Chalatse further says he later realised it was Justice Monaphathi who had promulgated the Subordinate Court (Amendment) Rules, which put judicial commissioners under the supervision of chief magistrates.
“I humbly aver that given this factual background, the Judicial Commissioner’s Court is one of the judiciary in Lesotho.

“The administrative functions and powers of the said Judicial Commissioner’s Court have been bestowed on the Registrar (of the High Court and Court of Appeal) assisted by the deputy registrar and judicial administrator.
“The 1st respondent (Acting Chief Justice) and/or the 2nd respondent (Chief Magistrate) cannot exercise administrative and supervisory authority over a member of the Judicial Commissioner’s Court at all.
“Neither can the 1st and/or 2nd respondent assign a judicial commissioner to any subordinate court for the effective administration of justice.

“The 1st respondent cannot make or promulgate the rules which, in effect, remove the administrative powers of the registrar and give them to the 2nd respondent (chief magistrate).
“I am therefore, directly affected by the provisions of the sub-rule under review as they seek to subject me under the administration and /or supervisory authority of the 2nd respondent yet I am holding my position under an independent court from hers,” Mr Chalatse submitted in the affidavit.

He further argues the chief magistrate would be acting beyond her powers if allowed to supervise judicial commissioners.
It is expected the respondents would submit their notice to oppose the case tomorrow.

The respondents are the Acting Chief Justice, Chief Magistrate, Minister for Law, Parliamentary and Constitutional Affairs, Minister for Justice, Human Rights and Correctional Services, and the Attorney General.
At the moment, there are three judicial commissioners in the Judicial Commissioner’s Court namely Rabuka Chalatse, Kokoto Mathaba and Morapeli Makara.
But according to sources within the judiciary, the ideal number should be seven.

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