We’re disappointed with Madam Chief Justice

We’re disappointed with Madam Chief Justice

It is with a heavy heart that when we look at back your tenure at the second highest court in the land, the High Court, yours will be remembered as one to be quickly forgotten. It is not entirely your fault though.
There were people very close to you who were supposed to advise you properly when you began faltering. They did not. Instead they pocketed fat cheques from state coffers and laughed behind your back as you stumbled. All four of them laughed when you tripped and fell.

When you were appointed Chief Justice of the high court over four years ago, there were legitimate expectations that change was coming to the judiciary. Former US president Barrack Obama used to say the same during his campaign to be president of the United States.
Sadly instead of change there has been gloom and signs of doom marking your tenure as one of missed opportunities. Women are the most disappointed by your dismal record. You were never vocal enough to advance their causes.

Let me hasten to add that what are widely reported in the media about you have not been tested in any court of law. But in a court of public opinion, we are at liberty to discuss them since they are linked to you.
It is therefore with great respect that we request you not to take offence when we analyse you since you are, by virtue of your high public persona, a public figure and people like you cannot easily escape public scrutiny.

We put it you that it is during your tenure as the Chief Justice that, for the first time in the history of the judiciary, a judge of very high standing both regionally and internationally was subjected to the most horrendous treatment right under your nose. Your indifference to his plight indicated that you could not care less what happened to him. You even read some of the judgements against him yourself. No judge deserves such humiliation.

The horror that Prof. Mosito was subjected to during your tenure as the Chief Justice called into question your commitment to the cause you are entrusted to advance. You are entrusted to advance the cause of justice for all; not for the select few. But when it came to protecting Prof Mosito from a barrage of unwarranted attacks which took place in front of your step, you folded your arms and looked the other way. Sometimes you appeared to participate in the beating.

Our understanding, which we stand by, is that as the Chief Justice of the High Court, you have a duty to protect the reputation of your courts. By logical extension you have a profound duty to protect the integrity of all the judges with whom you work. You failed to protect Prof Mosito while you had the ability and the duty to. It is unlikely he would do the same to you even if given half a chance.

It is our understanding that your primary duty was to protect Prof. Mosito from frivolous attacks by the then Attorney General and the then DPP. I do not want to include some politicians who openly declared their hatred for him. The law clearly states that it is the commissioner of the LRA who has sole access to the tax affairs of a taxpayer.

How did the DPP gain access to the confidential affairs of Prof Mosito’s tax affairs when he was not the commissioner of the LRA himself? Since the law is so clear on who can lay charges against a defaulting taxpayer how did Prof Mosito lose his court challenge against the DPP when he had such a compelling counter argument? Did you take time to ask yourself why Prof Mosito lost virtually all his court challenges but one?

As a judge and a trained lawyer by profession, most importantly the Chief Justice, did you not see the need to confront the DPP and ask him where he got the legal authority from to charge your judge for tax evasion? Why was the DPP allowed to go ahead and charge Mosito with tax evasion when the law clearly did not give him such authority? Was he not overstepping his constitutional boundaries by usurping the powers of the LRA commissioner? Did it not bother you that Prof Mosito lost when he challenged the DPP when the law was so clearly on his side?

When the Attorney General, a man who did not hide his dislike for Prof Mosito, went on a murderous rage using taxpayers money to launch malicious court challenges against Prof Mosito you were already at the helm. Surely you must have seen the wickedness of these acts since they had no legal basis at all.

As Prof Mosito was already a judge then and you were already the Chief Justice – and luckily for you nobody launched spirited attacks not to have you sworn in – why did you not come to the defence of Prof Mosito? Was it in the best interests of judiciary to have a country lose a judge of a calibre as high as Prof Mosito’s?

Do you even have any idea the harm we are already suffering as a result of the non sitting of appeal court? All because of some four people preventing Mosito from being sworn in? And you hired these same four people to be your legal advisors until the government terminated that contract.
We fully understand that no one is perfect; we are all fallible. We applauded you when Dr Thomas Thabane appointed you to the position though we still felt there were others as equally deserving – if not better – than you. Still we gave you our unwavering support hoping you were bringing a fresh atmosphere to the judiciary as the first female to hold such a lofty position.

But you will understand how deeply disappointed we are with your achievements. Prof Mosito was your litmus test where you had the chance to prove that you deserved the responsibility you were given.
You failed. A Chief Justice worth her salt does not hire private lawyers who prevent her judge from being sworn in as her advisers. Such conduct is totally unbecoming of a judge; a chief justice for that matter.
You have deeply disappointed us Madam.

As part of your redemption you can seek audience with the Prime Minister and tell him that you regret some of the decisions you made. Tell him how regretful you are for failing to protect one of your judges from undue harassment. You may as well tell him that this judge is the most academically gifted with a stunning record of professional achievements to back.

While at it you may as well take advantage to tell the PM that you will permanently sever ties with the four senior lawyers. Your association with these four senior lawyers was never meant to advance your professional career in any way.
It was only designed to advance the selfish motives of those who aligned themselves with you in the pretence that they cared about you. As events have turned out nothing could be further from the truth. They don’t care about you. They never did.

An example is when they did not help you to adequately prepare for your ICC exams where we expected you to perform well because you had the ability to do well. We have full confidence that had you adequately prepared for this exam you surely could have scored much better marks than what you scored. Is it too far-fetched to suggest that these four people kept you busy with other things that had nothing to do with your exams preparations?

We do not know but if your answer is “Yes” I would not be surprised. We also blame them for sidetracking you. Government was right to terminate their contract with you. The lost opportunity to work for such an internationally recognised court may not present itself to you again. What a loss.
Lastly, take advantage of your close proximity with the Prime Mister to tell him that it is not correct to overlook the most senior deputy registrar of the High Court for the position of acting registrar in favour of a junior.

Make an undertaking to him that you are going to advise the JSC to overturn this decision because it is bound to throw the judiciary into further chaos. And it will. We thank you.

Thato Damane

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