Court of Appeal President Justice Michael Ramodibedi has lost his bid to halt impeachment proceedings against him instituted by Prime Minister Thomas Thabane last year.
The Appeal Court on Friday dismissed Ramodibedi’s challenge of the Constitutional Court’s decision to turn down his application seeking to block investigations into his conduct.
On July 23 2013, Thabane advised King Letsie III to establish a tribunal to investigate Ramodibedi’a alleged misconduct.
But Justice Ramodibedi, who is also Swaziland’s chief justice, had argued the premier’s move was unfair as he had not been afforded a hearing first, while he also challenged the decision to suspend him while investigations were in progress.
However, on Friday Ramodibedi lost the case, paving the way for investigations that could lead to his removal from Lesotho’s highest judicial office.
In his ruling, the Court of Appeal acting judge, Justice Fritz Brand from South Africa, first gave some background information to the case, which has attracted global attention.
Justice Brand said: “As to the factual background of the dispute, I find a convenient starting point in a meeting held at the office of the Prime Minister on 22 April 2013. It was attended by the appellant (Ramodibedi), the Prime Minister and two members of cabinet.
“At the meeting, the Prime Minister raised concerns about a range of problems within the judiciary.
“Most of these problems arose out of a protracted dispute between the appellant and the then Chief Justice (Mahapela Lehohla) over who was the more senior in the judicial hierarchy. The conflict escalated into a matter of public embarrassment at the birthday celebrations of the King in July 2012, which was widely reported in the media.
“What happened, broadly stated, was that the chauffeur-driven vehicles of the Chief Justice and the appellant, were vying for preferential protocol treatment in a convoy leaving the venue of the celebrations.
“The vehicles executed dangerous manoeuvres, nearly running over two bystanders in the process.
“The conflict between the two judges also led to the cancellation of the Appeal Court session in January 2013. On that occasion, the appellant issued a public statement in open court blaming the Chief Justice for what had happened.
“As a result of the public furore arising from this incident, the Law Society of Lesotho formally requested the Prime Minister to enquire into the conduct of the appellant and the Chief Justice.
“In an attempt to resolve the conflict, there was an enquiry by a high level mission of the International Commission of Jurists (ICJ), chaired by a former South African Chief Justice (Sandile Ngcobo). In its report, the commission inter alia recommended that prompt action be taken against behaviour that is likely to bring the judiciary into disrepute, and that the first steps will entail holding the most senior officials accountable to the Constitution from which their position derives.
“Against this background, the Prime Minister explained to the appellant at the meeting of 22 April 2013 that he had already met with the Chief Justice who had chosen to take early retirement. He suggested to the appellant that he considered doing the same.
“The appellant took umbrage at the suggestion and expressed the view that this was an unconstitutional interference with his judicial independence. He then left the meeting.
“The following day, he discovered an instruction by the Ministry of Justice to the registrar of the Court of Appeal that the appellant’s two official vehicles be surrendered when the court was not in session.
“These two events prompted the appellant in May 2013 to bring an application in the High Court — to which I shall refer as the first application — for orders interdicting the government from what he contended to be ‘unlawful interference with the independence of the judiciary’ and compelling the return of his two official vehicles.
“The respondents sought a dismissal of the application, and in their answering affidavit, informed the appellant that the Prime Minister intended to initiate impeachment proceedings against him by advising the King to appoint a tribunal of enquiry in terms of section 125(5) of the Constitution.
“And as an alternative to the dismissal of the application they would seek an order staying the application pending the conclusion of the impeachment proceedings. The respondents also set out in detail the grounds upon which the impeachment would be sought.
“These involved numerous serious allegations of misconduct against the appellant, including that:
(a) His protracted and public dispute with the former Chief Justice seriously undermined the integrity of the judiciary.
(b) He had instructed his government-appointed driver, a sergeant in the Lesotho Defence Force (LDF), to submit a false insurance claim to cover the damages caused to the appellant’s official vehicle in an accident, indicating that the sergeant was the driver at the time of the accident while in fact, the vehicle was driven by the appellant’s son, who had no authority to do so.
(c) The appellant overcharged the Government for exercising his duties as President of the Court of Appeal by claiming and acquiring remuneration and travel allowances from the Government to which he was not entitled.
(d) He simultaneously held two permanent judicial appointments as President of the Court of Appeal of Lesotho and as the Chief Justice of Swaziland, which was incompatible with the requirements of judicial independence prescribed by the Lesotho Constitution and further rendered the appellant unable to perform his judicial functions in Lesotho properly.
(e) He had committed serious misconduct and abused his office as Chief Justice of Swaziland as alleged in an official complaint by the Law Society of Swaziland against the appellant in July 2011. This complaint comprised eight charges of misconduct, including the sexual harassment of female employees; the abuse of financial resources of the judiciary; the subversion of judicial independence by issuing practice directives calculated to impermissibly protect the King of Swaziland against civil judgments and his refusal to recuse himself as Chairperson at the Swaziland Judicial Service Commission’s disciplinary hearing into a complaint against a High Court judge which he had brought himself.
(f) He had brought the first application against the most senior officials in Government, including the Prime Minister, without first attempting to resolve the issues in accordance with the requirements of co-operative government and he thereby rendered himself unable to sit as a judge in matters involving the Government of Lesotho.
“In his replying affidavit in the first application the appellant responded to these allegations of misconduct relied upon in the respondents’ answering affidavit.
“It is common cause that the grounds for impeachment relied upon in the Prime Minister’s letter of 22 August 2013 are the same as those set out in the answering affidavit, save for two exceptions.
“The one exception relates to an additional instance of an irregular claim for travelling expenses. The other concerns details of additional incidents that allegedly occurred in Swaziland.
“On 22 July 2013 the first application was postponed sine die by agreement between the parties. In his answering affidavit in the second application — which led to this appeal — the Prime Minister said that he agreed to the postponement ‘to avoid the spectacle of litigation involving the President of the Court of Appeal and the Government as opposing parties’.
“The day after the postponement of the application on 23 July 2013, the Prime Minister made representations to the King to appoint a Tribunal in terms of section 125(5) of the Constitution.
“On 16 August 2013 the King acceded to the Prime Minister’s request by appointing a Tribunal consisting of three judges — the second, third and fourth respondents (Justices Mohammed Yacoob, Jennifer Yvonne Mokgoro and Meyer Joffe respectively) — and on 22 August 2013 the Prime Minister addressed two letters to the appellant that triggered the second application.”
The judge also said Thabane only advised the King to set up the tribunal after considering Ramodibedi’s response in the affidavits he filed in court when responding to the allegations levelled against him.
“Moreover, from the contents of the letter of 22 August 2013, which informed the appellant that a tribunal had been appointed, it was apparent that the Prime minister had had regard to the appellant’s response when he approached the King.
“In a separate letter of the same date, the Prime Minister invited the appellant (Ramodibedi) to make written representations as to why the King should not be advised to suspend him with full salary benefits pending the outcome of the enquiry by the tribunal.
“It is true, as the appellant argued, that he was not formally invited by the Prime Minister to make representations as to why the request for the appointment of the tribunal should not be made.
“Consequently, so he contented, his answer to the allegations in his replying affidavit was not a response to an invitation of that kind.
“I accept that the appellant was not invited to make representations regarding the appointment of the tribunal and that what he said in his affidavit cannot be construed as having been such a response,” he stated.
However, Justice Brand said Ramodibedi was not treated unfairly when the Tribunal to investigate him was appointed.
“In all the circumstances of the case, I am therefore not persuaded that the Prime Minister’s failure to afford the appellant a hearing in the strict sense before requesting the King to appoint a tribunal, was unfair.
“Conversely stated, in the view that I hold, insistence on strict compliance with the audi (right to be heard) principle in all its ramifications would in the circumstances of this case have been overly burdensome on the Prime Minister, undermined the administration of justice and unhelpful to the appellant.
“It follows that in my view, the appeal against the High Court’s dismissal of the appellant’s application cannot be sustained,” Justice Brand said as he dismissed Ramodibedi’s appeal.
However, the Court was lenient on Ramodibedi after ordering that he should not pay the costs of the suit as had previously been ordered by the lower court.
“The appeal is dismissed with no order as to costs,” Justice Brand ordered.
The judgment, meanwhile, was endorsed by Justices Azhar Cachalia, Francois Malan, Willem Louw and Roger Botha Cleaver from South Africa.
Following the judgment, it means Justice Ramodibedi is now officially on suspension, and that the process to investigate him can now go ahead.