Sakoane, Monapathi square off

 

…as retired judge demands release of terminal benefits

Moorosi Tsiane / Hopolang Mokhupi

RETIRED Justice Tšeliso Monaphathi has accused Chief Justice Sakoane Sakoane of unlawfully withholding his pension and terminal benefits, telling the Constitutional Court that the decision is unconstitutional, punitive and deeply unfair.

Justice Monaphathi, who retired in August 2024 after reaching the mandatory retirement age of 75, is accused of having failed to complete hearings or deliver written judgments in more than 100 cases during his tenure on the bench.

Following his retirement, Chief Justice Sakoane directed that Justice Monaphathi’s pension and terminal benefits would only be released once he had completed all his outstanding judgments.

Justice Monaphathi has challenged that decision, arguing that the Chief Justice acted outside his constitutional authority.

Through his lawyer, Advocate (Adv) Mochate Makara, the retired judge told the court that the withholding of his benefits amounts to unlawful punishment and “forced labour”.

Justice Monaphathi has hauled the Chief Justice before the Constitutional Court, seeking an order compelling the immediate release of his pension and terminal benefits.

The constitutional application, filed in July last year, was argued on Thursday before a three-member bench comprising Justice Mankhabimba Mkandwire of Malawi, Justice Sylvester Mainga of Namibia and Justice David Mangota of Zimbabwe.

‘No constitutional mandate’

Adv Makara told the court that Justice Sakoane had no legal authority to condition the release of Justice Monaphathi’s benefits on the completion of outstanding judgments.

“Section 151 of the Constitution is explicit that once a judge has retired, he must be paid his terminal benefits,” Adv Makara argued.

He said Justice Monaphathi had retired by operation of law upon attaining the age of 75 and therefore qualified for his benefits as of right.

Adv Makara acknowledged that his client had outstanding judgments but insisted this could not lawfully be used to deny him what the Constitution guarantees.

“The Applicant was asked to provide a timetable indicating when he would be able to finalise pending judgments,” Adv Makara told the court.

“He requested office space, a judge’s clerk and a laptop, but the Chief Justice was not willing to provide these.”

Adv Makara submitted that judges were overworked, courts under-resourced and understaffed, and that Justice Monaphathi should not be singled out or punished after retirement.

“It is not Justice Monaphathi’s fault that his work is unfinished. Judges are overworked; courts are under-resourced and understaffed. The Chief Justice has no powers whatsoever to withhold Justice Monaphathi’s benefits,” he said.

He argued that if Justice Sakoane believed Justice Monaphathi had neglected his duties, the proper course would have been disciplinary proceedings while he was still in office.

“A judge is paid to protect the institutional independence of the courts,” Adv Makara said.

“Terminal benefits of a judge cannot be interfered with by the Chief Justice or anyone else. Justice Monaphathi has not been removed from office for misconduct; he is retired.”

Adv Makara added that Justice Monaphathi was willing to complete his outstanding judgments, provided he was paid accordingly.

“One cannot be expected to work without pay. That is unconstitutional,” he said, invoking Section 9 of the Constitution and arguing that the Chief Justice’s directive amounted to forced labour.

He urged the court to declare the decision unlawful and to order the immediate release of the benefits.

Previous rebukes

Justice Monaphathi’s failure to deliver written judgments has previously drawn sharp criticism from the Court of Appeal, which warned that the lapse severely undermined its ability to adjudicate appeals.

It has been reported that Justice Monaphathi has as many as 128 judgments outstanding, some dating back decades.

Rewarding failure

The state, represented by Adv Rudie Cronje, mounted a robust defence of the Chief Justice’s position, arguing that judicial independence could not be separated from judicial accountability.

“The Code of Ethics for judges demands that judgments be delivered within three months,” Adv Cronje told the court.

“The Applicant still has pending judgments dating as far back as 1995.”

Adv Cronje accused Justice Monaphathi of attempting to use the courts to escape his responsibilities.

“A sitting judge has to account for his work,” he said.

“Judgments must be written and delivered within stipulated timeframes. The public expects the courts to deliver justice.”

He warned that granting the application would set a dangerous precedent.

“It can never be that a judge has the discretion to work beyond the age of 75 at his own choosing,” Adv Cronje argued.

“That would be the darkest day of the judiciary.”

Adv Cronje submitted that the judicial oath obliges judges to complete their work and that releasing benefits in these circumstances would amount to rewarding incompetence.

Chief Justice Sakoane, he argued, was justified in withholding the benefits.

“We are therefore asking the court to dismiss the application with costs,” Adv Cronje concluded.

The Constitutional Court reserved judgment to a date to be communicated to the parties, noting the far-reaching implications of the matter for Lesotho’s judiciary.

Cases to restart

Meanwhile, the judiciary had sparked outrage among litigants after announcing last year that all part-heard cases and those awaiting judgment before retired Justice Monaphathi and former Justice Keketso Moahloli would have to start afresh before new judges.

The High Court and Court of Appeal Registrar, Adv ‘Mathato Sekoai, confirmed in a circular dated 18 June 2025 that the affected cases would be heard de novo.

This decision means dozens of litigants—some of whom have waited years for justice—will be forced to relitigate their matters, incurring fresh legal costs and prolonging already painful delays.