Bataung Moeketsi

HIGH Court judges Semapo Peete and Teboho Moiloa officially retired from the bench on Friday 31 July 2020, leaving just eight judges to deal with the huge backlog of cases estimated by some judicial sources to be at least 4000 cases.

Justices Peete and Moiloa depart at a time when the judiciary has also been hit hard by the deaths of Justices Lebohang Molete (from stroke on 30 March 2020) and Lisebo Chaka-Makhooane (from Covid-19 on 14 July 2020).

The two judges were the only ones at the commercial division of the High Court and their deaths mean that until the Moeketsi Majoro-led government appoints replacements, the commercial court will not be operational anytime soon.

It is quite a huge crisis that the barely two-month-old government has to address but as analysts point out, this could have been avoided had successive governments kept their eyes on the ball and addressed the judiciary’s staffing challenges on time.

“The blame for the crisis that the judiciary finds itself in due to the shortage of judges should be placed firmly on the doorstep of the executive,” said a lawyer who spoke to this publication on condition of anonymity for professional reasons.

“It is a classic case of successive governments neglecting their duties to ensure a well-resourced and well-funded judiciary. Justices Peete and Moiloa’s retirements were not unexpected. They did not just happen out of the blue. Judges retire at age 75 and the previous Thomas Thabane government should have made plans for this eventuality by appointing their replacements.

“The basic qualifications for one to be a judge are an honours degree in law and a good track record in the judiciary especially as a magistrate. I cannot understand why some of the magistrates have not been promoted to be judges even though some of them like (Chief Magistrate ‘Matankiso) Nthunya have served 25 years in the judiciary.

“These failures to act despite constant appeals for more judges by successive chief justices including the incumbent (Acting Chief Justice ‘Maseforo Mahase) have created the crisis we are now faced with in the judiciary, the lawyer said.

His sentiments were echoed by prominent lawyer, Advocate Karabo Mohau, who said successive chief justices have always lamented the fact that the judiciary is underfunded, under-resourced and overworked.

“But those pleas appear to have fallen on deaf ears because they have not resulted in an increase in the resources, including the number of judges, placed at the disposal of the judiciary.

“The judiciary has to rely on a budget approved by the executive and passed by parliament.

“Section 18(3) of the constitution places the responsibility of assisting the courts to discharge their mandate squarely on the executive arm of government. I do not think the executive has discharged that responsibility well at all.

“Parliament is equally to blame for failing to hold the executive to account for its failure to give the necessary assistance to the judiciary. Without the cooperation of executive and parliament, the shortage of judges will not be addressed,” Adv Mohau said.

He said instead of helping the judiciary to carry out its responsibilities independently and effectively, the executive had done the exact opposite by actively undermining the judiciary’s independence and starving it of the funds it needs to discharge its mandate.

“The executive cannot, however, take all the blame alone. The judiciary has also sold its soul to the executive. It is no secret that our judiciary has been caught up in the messy party politics of the country with some in the judiciary letting party politics take the better of them.

“From cleaners to judicial officers, few are without party political blemish in the judicial service, much to the detriment of an effective and efficient delivery of justice. One needs only recall the scenes of court staff and some lawyers in the forefront of politically motivated demonstrations misguidedly doing the bidding of politicians in demanding the ouster of former Chief Justice Nthomeng Majara in 2018,” Adv Mohau said.

He said while all this happened, the backlog of cases grew out of hand.

“The huge workload has in turn also had its toll on the health of the judicial officers and the result of the sickness of judges is low work output by such judges. It’s vicious circle.”

Political analyst, Arthur Majara concurred, saying “the judiciary is the most politicised of the constitutional organs resulting in a tug-of-war among politicians when it comes to replacing aging or deceased judges”.

“The judiciary is the kingpin of a democratic dispensation the world over meaning that where there is a dysfunctional judiciary there is a totalitarian regime,” Mr Majara said.

Another lawyer, Adv Thulo Hoeane, said the retirement of Justice Peete and Moiloa will “aggravate” the backlog of cases in the judiciary.

He said over the past two years, Justice Mahase had bemoaned the shortage of judges and appealed for corrective action but her pleas to the executive had fallen on deaf ears.

Last year at the official opening of the High Court ACJ Mahase bemoaned the shortage of judges stating that it was a serious crisis which inhibits the judiciary from functioning. She echoed similar sentiments in February this year.

Adv Hoeane said the underfunding of the courts has serious implications on the functioning of the courts which in turn had adverse effects on the administration of justice.

“It goes without saying that justice delayed is justice denied and I think that this government (the current administration) has got to prioritise the appointment of new judges and provide adequate funding for the judiciary,” Adv Hoeane said.

Another lawyer, Adv Kelebone Maope said the shortage of judges had dire consequences for the administration of justice as “witnesses could die before cases are finalised resulting in some suspects being acquitted for lack of evidence”.

He said all this could result in the public losing confidence in the judiciary.

Adv Mohau said the new government should move fast to address the crisis in the judiciary.

“The starting point is to allocate adequate funds to the judiciary to enable it to discharge its mandate. Those funds should be put to proper use to acquire the required human and material resources for the judiciary,” Adv Mohau said.

He warned of dire consequences in the Majoro regime does not act swiftly to address the shortage of judges to enable the judiciary to function optimally.

“The consequences are dire because the administration of justice is a societal pressure valve. The judiciary is there to serve as an outlet for ventilating grievances and allows legal disputes to be resolved in a civilised manner rather than through self-help.

“Where the administration of justice is brought into disrepute as a result of the judiciary’s failure to discharge its mandate efficiently, the resort to self-help increases. Sadly, that is where we are today with frequent reports of people taking the law into their own hands and doing things that were unthinkable a few years ago such as lynching people accused of criminal acts.

“The societal cost of a total breakdown of the rule of law that will surely come as a result of people losing confidence in the ability of the judiciary to be an impartial, effective and efficient arbiter of their legal disputes is too ghastly to contemplate,” Adv Mohau said.

It is therefore imperative for Law and Justice Minister Professor Nqosa Mahao to act swiftly to ensure the crisis does not deteriorate further. Treasury must avail funds to recruit more judges to ease the pressures on the few remaining judges.