Thabane wants judges out of case

Thabane wants judges out of case

MASERU – PRIME Minister Thomas Thabane has filed an application in the High Court seeking the recusal of all local judges in his case with three senior lawyers. Attorney Qhalehang Letsika, Advocates Karabo Mohau KC and Zwelakhe Mda KC have asked the High Court to interdict Thabane from taking any measures against any judge pending finalisation of their other case.
The case is before Justice Tšeliso Monaphathi.

In his notice of motion, Thabane asks that Justice Monaphathi “or any other Judge of the High Court of Lesotho recuses himself or herself from hearing and determining the interim and final relief in the main constitutional application”.
In the constitutional case, the three lawyers are asking that the Minister of Law, Thabane’s son-in-law Lebohang Hlaele, be ordered to withdraw his contemptuous words against Chief Justice Nthomeng Majara.

Hlaele had attacked the Chief Justice in public and called for her removal while accusing her of dishonesty.
The three lawyers also ask the court to block Thabane from interfering with the judiciary, arguing that his acts render the judges vulnerable to the executive’s influence and control.

But Thabane told Justice Monaphathi, who he also wants out of the case, that all local judges are interested in the outcome of the constitutional case and therefore should not hear it. Thabane also says Chief Justice Majara should not arrange for the appointment of foreign judges to hear the constitutional case because she is an interested party in the matter.

He instructed his lawyers, Advocates Monaheng Rasekoai and Christopher Lephuthing, to propose the revisiting of a constitutional section and engage the Judicial Service Commission (JSC) on it “and its relevance to the obtaining circumstances where the Chief justice is conflicted”.
In a letter to Lephuthing, the JSC Secretary Pontšo Phafoli wrote that the section he wanted revisited, Section 120(4), “relates to the situation where the Chief Justice is unable to exercise her functions, or where there is vacancy in the office of Chief Justice”.

“Therefore section 120(4) is irrelevant as regards the appointment of judges,” Phafoli said.
“You are also advised to draw a distinction between the function of the Commission and the Chief Justice, in that the Chief Justice, although a member and Chairperson of the Commission, does not appoint judges,” she said.
She also reminded Lephuthing that judges are appointed by the King on the advice of the JSC.

She said the JSC assured Lephuthing that “where any member, inclusive of the Chief Justice and the Judge in the Commission, are conflicted or may be perceived to be conflicted regarding a certain issue, he or she would normally recuse himself during the deliberations on that particular issue”.
Thabane wrote that he did not agree with the understanding of the JSC of the relevant section of the constitution hence he instructed his lawyer to ask the court to interpret section 120(4) of the constitution.

The section says if the Chief Justice is for any reason unable to exercise the functions of his office her functions shall be exercised by such one of the judges of the Court of Appeal or the puisne judges or such other person qualified to be appointed as a judge of the High Court.
Lephuthing had suggested that since the Chief Justice and all High Court judges are conflicted “then a person qualified to be appointed as a judge of the High Court” should be appointed to take charge of the arrangements to appoint foreign judges.

Another judge who sits in the JSC meetings is Justice Sakoane Sakoane and Thabane also wants him not to be involved in the arrangements to appoint foreign judges for his constitutional case.

“The Chief Justice’s decision was that she must get foreign judges to hear this matter,” Lephuthing wrote.
“We propose to discuss the propriety of the decision by the Chief Justice to arrange for the appointment of foreign judges either in her official capacity as such or as a chairperson of the Judicial Service Commission,” he said.

He said their view is that the Chief Justice and all judges of the High Court are directly interested in this case as it has been brought on their behalf.
“We cannot therefore have a situation where a litigant (beneficiary) can also choose judges to come and preside over a matter in which he or she has a direct and substantial interest,” he said.

In the affidavit, Thabane argued that any of the judges of the High Court, faced with the possibility of such measures being taken against him, “will naturally feel or exercise self-preservation strategy in order to avoid the alleged unwarranted intrusion in their independence of the judiciary as an institution”. The three lawyers are expected to respond to the application next week.

Staff Reporter

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