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Law Society split over judge

by Sunday Express
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Nat Molomo
MASERU — “Guys I am telling you I can go to jail for my own faults but I cannot create faults for myself to go to prison.”
With those words, prominent prosecutor Hopolang Nathane turned and walked back to the judges’ chambers in court 10.
Prominent lawyer Haae Phoofolo was by his side as they briskly walked to the chambers where acting Judge Peter Cullinan was waiting for them.
He was about to deliver judgment in a case in which father Maleka Mathibeli, a Catholic priest who is  also the editor of Moeletsi oa Basotho, was being charged with contempt of court for allegedly publishing an article attacking the judiciary.
Phoofolo was representing Mathibeli while Nathane was prosecuting for the state.
Ironically, the two lawyers were walking to a judge they had been ordered to walk away from minutes earlier.
Nathane’s emphatic words were directed at his four colleagues from the Law Society of Lesotho who had come to witness their withdrawal from the case as instructed by the society’s special conference hours earlier.
Those words upped the ante in the drama that had been raging in the legal fraternity for the past two weeks.
Nathane delivered his “closing remarks” to the argument in the corridor near the High Court main door on Thursday.
As the two lawyers walked upstairs to Justice Cullinan’s chambers, their colleagues — advocates Tseliso Fosa, Zwelakhe Mda, Nkoya Thabane and Mole Nthlhoki — looked stunned.
Two of the society’s most respect lawyers, Nathane and Phoofolo had just defied an order by the society’s supreme decision body, the conference, not to set foot in Justice Cullinan’s court.
“Gentlemen, it looks like we did not have Plan B,” said Thabane, seemingly resigned to the fact that Nathane and Phoofolo were not going to withdraw as ordered.
On the face of it this was just a meeting that had ended in disarray but in real terms it was one that clearly showed how deeply divided the society was on the matter.
Interestingly the society had been thrown into a quandary because of its own resolution it passed against Justice Cullinan five years ago.
Way back in 2004, the society’s council had resolved that the government’s decision to rehire Justice Cullinan was not for the good of justice in Lesotho.
They believed that that Justice Cullinan, who had been Lesotho’s chief justice between 1988 and 1991, had been rehired to deal with cases in which the government had special interests.
The society had also been angered by what it called “questionable rulings” that he had made and that he was past 75, the retirement age for judges.
So for years lawyers had managed to avoid Justice Cullinan but two weeks ago Nathane and Phoofolo found themselves “trapped”.
They had breached the society’s resolution by appearing before Justice Cullinan in the Mathibeli trial.
The society immediately dispatched letters to them ordering that they stop appearing before the judge.
The two lawyers said they had forgotten about the 2004 resolution and apologised but instead of withdrawing from the case they pleaded for special permission to finalise the matter.
Pulling out, they said, would risk them being prosecuted for contempt of court.
With grumblings from fellow lawyers over their request, the society decided to have a special conference on Thursday morning to discuss the issue.
Court 5 at the Palace of Justice is where the meeting was held and this where the drama of the day started.
The Sunday Express was in that meeting as the lawyers bickered over what should be done to Nathane and Phoofolo.
Some felt that the lawyers should withdraw from the case while others said they should be allowed to finalise the case.
A lawyer’s obligation, they argued, is first to his clients, the court and then the society.
But others felt that Nathane and Phoofolo should withdraw and be brought before a disciplinary hearing because allowing them to go ahead with the case would be tantamount to condoning disregard of the society’s resolutions by members. 
Others were of the militant view that all the lawyers present should just walk into Justice Cullinan’s court room and disrupt the case in protest.
Yet others pleaded for caution. 
The house was clearly divided but after a protracted tussle it was resolved that Nathane and Phoofolo would go and tell Justice Cullinan that they were withdrawing from the case.
The meeting resolved that some members would accompany them to the court to witness their withdrawal.
Thus began scene two of the drama.
Nathane and Phoofolo went into Justice Cullinan’s chambers to inform him that they were withdrawing from the case but the judge would have none of it.
The Sunday Express understands that Justice Cullinan told Nathane and Phoofolo that if they withdrew from the case they would be charged with contempt of court.
Phoofolo then told the judge that they had come with their colleagues who were there to witness their withdrawal but they had remained outside.
The judge responded by instructing a police sergeant to call them into the chambers.  
What followed was a 45-minute wait with Fosa, Mda, Thabane and Nthlhoki insisting that they were not going to appear before the judge.
And when Nathane and Phoofolo came to explain them that they had been caught between a rock and hard place, things fell apart.
Nthlhoki was however adamant that they had not come to appear before Justice Cullinan.
He said instead they had come to witness their withdrawal.
Mda, the Law Society president, said it would not be proper to allow the two to be jailed.
Then came the question that seemed to have defined the course of the debate from there.
“What will happen if we go back in there and inform the judge that we are withdrawing and the judge decides to take us in for contempt there and there?” Phoofolo asked as the tempo of the argument upped.
That question seemed to have caught the four advocates unawares.
From there on they seemed to fumble for answers with others suggesting that Nathane and Phoofolo should allow themselves to be taken in and they would be released through normal procedure.
That suggestion angered Phoofolo who said he was not going to be “used as a sacrificial lamb”.
Then Nathane decided to close the meeting in a thundering way.
“Guys I am telling you I can go to jail for my own faults but I cannot create faults for myself to go to prison,” he said.
When contacted for comment, Phoofolo said he was not at liberty to discuss the issue.
He however confirmed that they were going to face a disciplinary hearing.
Mda yesterday said the Justice Cullinan issue seemed to have been blown out of proportion because “there was never a debate about lawyers appearing before him”.
“This was a complicated situation that had arisen because the society only realised late that Justice Cullinan was dealing with the matter,” Mda said.
“You must remember that we are talking about very senior members of the society.
“I honestly don’t think that they had knowingly and openly defied the order.”

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