• argues they are all unfit to hear her impeachment case

Pascalinah Kabi  

IN an unprecedented move, Acting Chief Justice ‘Maseforo Mahase has launched a broadside against most of her fellow judges, essentially accusing them of incompetence.

Judge Mahase says her colleagues are unfit for purpose and calls for all of them to recuse themselves in a case in which her impeachment is being sought.  She calls for the appointment of foreign judges to hear the case.

Justice Mahase makes the scathing attacks against her colleagues in her replying affidavit in a case in which All Basotho Convention (ABC) secretary general Lebohang Hlaele wants the Constitutional Court to compel the Judicial Service Commission (JCS) to impeach her.

The matter will be heard by the Constitutional Court on Tuesday and she wants the entire Lesotho High Court bench recused from the matter in favour of foreign judges.

Justice Mahase said some of her fellow High Court judges like Justice Lineo Chaka-Makhooane were unhappy with her because the latter was close to the suspended Chief Justice Nthomeng Majara.

She also accuses other judges — Justices Thamsanqa Nomngcongo, Tšeliso Monaphathi, Keketso Moahloli and Molefi Makara – of refusing to take orders from her.

She however, exempted three unnamed junior judges and Justice Teboho Moiloa from the attack, saying the four were the only staffers who obeyed her orders.

Justice Mahase argues all her fellow judges are unfit to preside over a case that will determine her future as the acting chief justice.

She argues her colleagues were unfit to preside over the case seeking her impeachment because the country was presently polarised on political lines to an extent that the public was always going to be suspicious of any outcome of the case.

Justice Mahase said her comments were neither meant to hurt any of her colleagues in any way nor cast aspersions on them.  It was just dealing with the reality currently obtaining in the country.

“It is merely what it is; an affidavit in a recusal application which touches upon our daily lives as Lesotho High Court judges,” Justice Mahase said.

“I respect all judges irrespective of their rank on the bench. We are currently operating in a highly charged political environment where one is seen rightly or wrongly as biased one way or the other concerning political cases.

“The High Court bench is facing a storm presently where pending cases are discussed over the media and judges vilified depending on the order made and which side of the political divide the vilifier is,” Justice Mahase said.

She said there was intense propaganda by politicians against the reputation of some of the High Court judges. She said Justice Semapo Peete had been recently vilified for granting an order in a case involving the ABC. She claimed she had also been vilified in the media on numerous occasions for adjudicating cases involving the ABC.

“The country is very much polarised at present on political lines, so much that either way this case is decided, there will always be suspicion concerning the decision of the court in this bench of the High Court of Lesotho. This is a fitting case for independent judges from outside the country,” she said.

It was therefore important for all local judges to recuse themselves from her case to avoid being vilified on social media and avoid any suspicion of bias. She said this was also to protect the reputation of the judiciary.

Judge Mahase said in her capacity as acting chief justice, 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,” Justice Mahase said.

Judge Mahase then proceeds to list a number of complaints she said had been raised against her colleagues by the public and which she had to deal with.

“Currently I have with me a file in respect of my other colleague Justice T Nomngcongo through which several people have complained about none delivery of judgements which have been pending before him”.

“Find herein a list of cases that are pending and which have been brought to my attention…”

She said Justice Nomngcongo had failed to date, to favour her with any response despite repeated calls and efforts by both her and Justice Majara. She said that she was on the brink of recommending the JSC to have disciplinary action taken against Justice Nomngcongo for his failures and for ignoring her on such important issues.

She said this may result in impeachment being instituted against Justice Nomngcongo. She said there were similar cases involving Justices Monaphathi and Moahloli who had on numerous occasions disregarded the former’s orders to issue long overdue judgements.

“To be precise, with the exception of about three very junior judges and Justice Moiloa, all of the high Court judges, who are all answerable to me, have not obeyed my orders that they should write long overdue and pending judgements. None of them has given me a formal report about the same.

“Just a few days ago, I had to strongly reprimand Justice Nomngcongo for refusing to allow one counsel to look into the minutes of the court’s file to verify what was recorded in a case the counsel is involved in as one of the legal representatives.

“Our conversation was not a very cordial one as my learned brother was so furious that he shouted at me and spoke to me in an unbecoming manner. I was taken aback, surprised and wondered at this. Is it that I caught him at the wrong time or it was something more sinister related to that file or me?”

She also took a swipe at Justice Moahloli for his alleged failure to write and finalise a number of pending labour appeal judgements.

“Also, Justice Moahloli has a complaint against me concerning my alleged preference of Justice Mokhesi to be his senior. He has lodged the complaint with the JSC. This is still pending resolution by the JSC. Clearly, he has an issue with me. He cannot sit as a judge in a case that I have been sued….

“I have numerous complaints about Justice Makara for refusing to deal with civil matters. Some of the judges are not happy that I am the Acting Chief Justice. For instance, Justice Chaka-Makhooane is not enamoured with me as she is closer friend to the suspended Chief Justice Majara than me.

Justice Mahase also launched a broadside against Justice Mokhesi saying he had irregularly dealt with some cases in the Court of Appeal.

“I am still wondering why he (Justice Mokhesi) was the one (of the) preferred judges by the Registrar or Deputy Registrar to preside over that case whilst there are numerous judges far senior than him. I smell a rat here,” Justice Mahase said.

Mr Hlaele, the ABC secretary general, is seeking the ouster of Judge Mahase arguing she is grossly incompetent and has put the judiciary into disrepute via her behaviour which has been repeatedly condemned by the Court of Appeal.