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Mosito blasts High Court judges again

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  • over their failure to deliver written judgements,
  • calls on Chief Justice Sakoane to act against the errant judges. 

Mohalenyane Phakela

THE Court of Appeal has again slammed High Court judges for their repeated failure to issue written judgements, complete with reasons for their decisions.

The apex court’s president, Justice Kananelo Mosito, said they found it difficult to hear appeals and make informed decisions in the absence of written judgements from the High Court.

He called on Chief Justice Sakoane Sakoane to act on the matter to ensure that judges always performed their duties.

He made the remarks over the weekend while delivering judgement in Police Commissioner Holomo Molibeli’s appeal against High Court Judge Tšeliso Monapathi’s September 2020 ruling revoking the police boss’ dismissal of Lesotho Police Staff Association (LEPOSA) treasurer, Lance Sergeant ‘Mathebe Motseki.

The apex court upheld the High Court decision on the grounds that Commissioner Molibeli had failed to produce evidence that he had consulted and secured the approval of then Police and Public Safety Minister, ‘Mamoipone Senauoane, before firing Lance Sergeant Motseki.

The LEPOSA treasurer was fired on 7 August 2020 for allegedly tarnishing the image of the police command. This after she had publicly accused the police bosses of transferring some police officers as punishment for opening a case against former First Lady ‘Maesaiah Thabane for allegedly assaulting a Maseru man at State House in January 2019.

She was also said to have tarnished the image of the police command by publicly accusing it of failing to arrest Deputy Commissioner of Police (DCP) Paseka Mokete after a female junior police officer accused him of sexual assault in April 2020. DCP Mokete’s case is pending before the Maseru Magistrates’ Court.

Following her dismissal, Lance Sergeant Motseki successfully petitioned the High Court to revoke the decision on the grounds that Commissioner Molibeli acted without consulting the Police and Public Safety Minister as per the law.

Lance Sergeant Motseki subsequently resumed her duties on 11 September 2020 in line with Justice Monapathi’s 9 September 2020 High Court judgement revoking her dismissal.

Not satisfied with the High Court verdict, Commissioner Molibeli then appealed to the apex court.

His appeal was supposed to have been heard during the Court of Appeal’s first session in April this year. But this was not to be due to the absence of a written judgement by Justice Monapathi who had revoked Lance Sergeant Motseki’s dismissal on 9 September 2020.

The matter had been postponed to the apex court’s second session which got underway on 11 October 2021 to give Justice Monapathi time to furnish the court with a written judgement with the reasons for his decision. But there was still no written judgement from Justice Monapathi when the second session of the apex court began last month.

The matter was eventually heard on 21 October 2021 after the High Court judge had availed his written judgement. It was heard by Justices Mosito, Phillip Musonda and Johann Van Der Westhuizen who reserved judgement to 12 November 2021.

In throwing out Commissioner Molibeli’s appeal, Justice Mosito said there was no evidence that the police boss had consulted the then Minister Senauoane before firing Lance Sergeant Motseki.

He noted that Commissioner Molibeli had only written to Ms Senauoane on the very day that he fired Lance Sergeant Motseki but it was not clear whether this constituted proper consultation before the latter was sacked.

“The Commissioner of Police was to consult with the Police Authority (then Minister Senauoane) but on that same day Lance Sergeant Motseki was dismissed.

“The minister confirms that she received a letter that day but does not stipulate the time. It is not clear which preceded the other,” Justice Mosito said while dismissing the appeal with costs.

The apex court president then expressed his unhappiness with Justice Monapathi’s failure to provide a written judgment from the very start. He said even though the judgment had eventually been provided, it was evident that this had been hastily done. He then ordered the Registrar of the Court of Appeal and High Court, ‘Mathato Sekoai, to take note of the issues he had raised in the appeal court judgment regarding the failure to timeously provide written judgments and bring them to the attention of the chief justice and the Judicial Service Commission (JSC).

“This matter was before Justice Monapathi but we had to postpone it to this session due to the absence of the reasons for his judgement. Still, there were no reasons (when the second session commenced) until the eleventh hour. It is clear that the reasons were prepared with haste but however, the (apex court) judges were able to deal with them.

“The appeal is dismissed with costs. The registrar is ordered to bring this judgement to the attention of the Chief Justice and the Judicial Service Commission,” Justice Mosito said.

Before the appeal was postponed in May 2021, fellow apex court Judge Van Der Westhuizen had also called on Justice Sakoane to deal with High Court judges for their repeated failure to provide written judgements with reasons for their decisions.

“As has been stated repeatedly in the judgments of this Court and during appeal hearings by judges of this Court, the failure by High Court judges to furnish reasons is utterly unacceptable. This is so for various reasons. One is that a court of appeal is simply unable to consider in any remotely proper manner whether to confirm or overturn a judgment of a lower court without the benefit of knowing and understanding how that court arrived at its conclusion, decision and order.

“The appeal process — often costly for desperate litigants — is thus rendered futile. The legitimacy of and trust in the courts — and indeed the legal system of a land — depends on the logical and legal force of their judgments. Perhaps the only thing more dangerous than unconvincing reasons for decisions, is the absence of the reasons.

“The continued failure by High Court judges to furnish proper reasons for judgments, sometimes even after being repeatedly requested to do so, could result in the collapse of the rule of law in Lesotho… Thus, the Chief Justice is obliged to urgently attend to this problem,” Justice Van Der Westhuizen said.

Justice Mosito and his fellow Court of Appeal judges first vented their frustration at High Court judges for their failure to deliver written judgements in May 2021.

Since the apex court president’s initial concerns were raised, it seems nothing is improving with regards to issuing written judgments, hence his latest exhortation to Justice Sakoane to ensure his subordinate judges do their work.

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