Chief Justice under fire

Chief Justice under fire

…Court of Appeal suggests disciplinary action

MASERU – IN a scathing judgement yesterday, the Court of Appeal made a subtle suggestion that Acting Chief Justice ’Maseforo Mahase should face disciplinary action for the way she had handled case in the All Basotho Convention (ABC) saga.

This was after the court found that Justice Mahase did not give reasons for all orders she granted in All Basotho Convention (ABC) cases she heard.
“That has placed this Court in a most unenviable position where it has had to make do with scanty information about what transpired before her,” the court said.

The court said in other jurisdictions, “the failure by a judge to give reasons for judgment, especially where that becomes a pattern of how the judge concerned operates, leads to disciplinary action against such a judge”.
“The judiciary in this country should take a leaf from other jurisdictions on this salutary practice.”

“The time has surely arrived to impose disciplinary sanctions on errant judicial officers who refuse or neglect to give written reasons for the decisions they make.”

The Court of Appeal also chastised Justice Mahase for refusing to recuse herself from one of the ABC cases.

It criticized the way she handled the three ABC cases.
It said she held on to the first case for five months until the litigants approached the apex court.

The court also found that while she repeatedly postponed that case, she promptly ruled on the second urgent application “in record time and made another order adverse” against Professor Nqosa Mahao’s faction.

There was the third case in which she again ruled against the same faction.
While this was happening, Prof Mahao’s camp was still waiting for her to deliver judgement in the first in which she had been asked to decide if the conference that elected the faction was legal.

Prof Mahao’s camp believed that Justice Mahase was biased.
The court said the way Justice Mahase handled the case that first challenged the outcome of the elective conference was “very regrettable” and had “several unintended consequences”.

In a case in which Justice Mahase ruled that Prof Mahao’s faction should vacate office and reinstalled the outgoing committee, the Court of Appeal said she “did not give reasons for her drastic order and it remains unknown why she decided that the old NEC should…run the affairs of the ABC…”

The court said when the Mahao camp filed an application for her recusal the judge refused to hear the case in an open court and called the lawyers to her chambers.

In the chambers, she told the lawyers that she could not hear the case in an open court because there was a social media clip mocking and criticising her.
She also complained that the court was too cold and she feared that if she catches a bug she will be accused of feigning illness.

The lawyers for Mahao’s camp left the chambers, Justice Mahase proceeded to hear the other side. The court said the fact that she heard the main application in her chambers shows that she had made a decision.

The judges said the chronology of events explains why Mahao and his group feared that Justice Mahase is biased.

“All this constitutes ‘correct facts’ on which a reasonable apprehension of bias would be entertained by a reasonable, objective and informed person,” the judgment said.

The court said once the issue of recusal is raised by a litigant or circumstances require a judge to consider whether he should recuse himself, it “must be dealt with before any judicial decision in the matter can be taken”.
“A judge who presides in a case when he or she should not have renders the proceeding a nullity every minute he or she continues to sit.”

“Any order of a judicial character made in such circumstances is a brutum fulmen (an ineffectual legal judgment).”

The court said based on the analysis of the sequence of events relative to the ABC matters and the role played by Justice Mahase, “there can be no doubt that a reasonable observer, armed with the correct facts, would form the view that she would not be impartial in the matter that served before her…”
“In those circumstances the ACJ should have recused herself.”
The court ruled that the order she granted cannot stand.

Itumeleng Khoete

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Next A chronology of Justice Mahase’s mess

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