Judge sued

Judge sued

MASERU – FOR six years Lebohang ‘Mei was rotting in prison while Justice Thamsanqa Nomncongo sat on his case. This was despite that Justice Nomncongo had heard all the arguments in the case and reserved judgement.
‘Mei, a semi-literate man from Mafeteng, was eventually granted parole in December 2016 while still waiting for the judge to make a ruling on his appeal. Until today Justice Nomncongo has not delivered the judgement.

The story of ‘Mei is a window through which we can clearly see the rot in the courts. It is a tale of how the justice system and judges have failed the poor. But is also a story of how the people can fight back.
In an unprecedented Constitutional case filed this week ‘Mei is now suing Justice Nomncongo for dereliction of duty and denying him his right to fair trial within a reasonable time. He wants the judge to pay a staggering M10 million in damages.

Because its targeting a judge, the case is likely to send shock-waves on the bench and in the whole judiciary. And given that ‘Mei is not the only victim of delayed justice, the case is likely to trigger an avalanche of similar lawsuits against High Court judges long accused of either failing or delaying to deliver judgements.

Nearly all of the 11 judges on the bench have a judgement that had been inordinately delayed.
Three prominent lawyers who spoke to thepost last night said they too were watching ‘Mei’s case with keen interest because they too have clients with similar cases.

‘Mei was charged with attempted murder and sexual assault in January 2007 in the Mafeteng Magistrate’s Court. It would take five years and more than ten postponements for that court to finalise his case.
In February 2012 he was convicted of attempted murder and sentenced to eight years behind bars without an option of a fine. Yet even that conviction came under some curious circumstances that ‘Mei vividly narrates in his affidavit.

He says after the conviction a date was set for his mitigation. But that date was brought forward without his lawyer’s consent. He then appeared before the magistrate without his lawyer who was attending another case.
His plea with the magistrate to postpone the hearing was flatly refused.

“Then, without any prior advice on what the process (mitigation) entails, the learned Magistrate ordered me to proceed with mitigation,” ‘Mei says.
“This was all so confusing to me and I honestly did not understand what was expected of me. I thus told the court that I had nothing to say.”
“Despite it being so obvious that I was not in a position to conduct my own mitigation, the learned Magistrate just went ahead to sentence me to eight (8) years imprisonment without an option of a fine.”

Because the Mafeteng Prison was being refurbished, ‘Mei was taken to Mohale’s Hoek to serve his sentence.
His qualm is however not with the magistrate. What angers him is what happened when he appealed the Magistrate’s judgement in the High Court. He launched his application for review in April 2012, three months into his sentence.

The battle had begun because the postponements started. Tired of the delays, in August 2012 he pleaded with the prison authorities to transfer him to Maseru so that he could be near his lawyer and the High Court.

But that transfer did not change his fortunes because the matter kept being delayed. He says by that time he had “reached rock bottom with depression and started blaming everyone for my ordeal, including my attorney.”

He appealed to the Law Society of Lesotho to help him recover his fees from his lawyer whom he thought was not working on his case. After a second letter the law society told him that the matter will be heard in June 2013.

When the matter was postponed on that day ‘Mei appealed to the Lesotho Lawyers for Human Rights which however did not respond to him.
Then in early November 2013, 21 months after his imprisonment, his appeal was argued before Justice Nomncongo who reserved judgement.
“I remember asking my counsel what that meant, in particular when the judgement would be delivered. His response was that he could not tell when judgement would be delivered but that a reasonable (time) would be a month or so,” ‘Mei says.

That was the last time ‘Mei or his lawyer heard from Justice Nomncongo about the case. As the judge sat on his case ‘Mei began to blame his lawyer again.

The lawyer later told him that he had written several letters to the Registrar of the High Court inquiring about the judgement “but not even once did the office of the Registrar bother to address his concerns”.

“He concluded by advising me that all he could do was to keep reminding the High Court of the pending judgement, but at the end of the day it was upon the learned presiding judge (Justice Nomncongo).”
‘Mei was eventually released on parole in December 2016. He was due to complete his sentence in February last year.
The judgement still hasn’t come.

“To date, there is still no judgement in my review application! That means at the time I depose to this affidavit, it has been roughly 6 years, 10 months since I approached the High Court for relief”.

He says Justice Nomncongo’s action has had devastating effects on “my life and dignity”. “The failure of the justice system in this regard has infringed on my fundamental right to fair trial within a reasonable time. The right to a fair trial extends to a right to have an appeal or review to a higher court heard and determined within reasonable time. I doubt it can ever be argued that a period of over six years is a reasonable time in the circumstances of this matter.”

‘Mei says it is a “grave miscarriage of justice when access to justice is so slow that it breathes futility”.
“In my case, my rights in this regard were trampled upon by the very judicial institution that was expected to jealously protect my rights.”
In a nutshell, I have effectively been deprived of the benefit of my review as well as the opportunity to secure my freedom through the review process.”
“I do not have the right words to express my disgust and anger towards the justice system of Lesotho.”

He says although no amount of money can restore his dignity and erase the emotional scars he suffered he believes such a failure of justice cannot go unpunished.

“I therefore submit that an amount of M10 million would be fair and reasonable as damages for the infringement of my right.”
‘Mei says as a result of the judge’s action he was subjected to “horrible and squalid conditions” for over seven years.

He says he had to live in “dirty, filthy and smelly cells with a slop bucket in which to defecate” in a ten square metre cell he shared with 15 other men. The hard surface he slept on with “thin layered blankets” was unbearable especially in winter.

‘Mei’s other horrors

· He also lived in constant fear of being raped or killed by other prisoners if he refused to submit to their demands

· He was always worried that warders would raid their cell and discover things like marijuana and knives that we kept by the other prisoners

· Rarely had visitors because his relatives lived far from the prison

· The food was always horrible and inadequate. Sometimes they would survive on porridge and bread for days

· Was always depressed and thought of ending his life

· Developed diabetes, Hypertension, distress and anxiety

· His wife left with their six children while he was in jail

· He found his house destroyed

· A small shop he owned shut down

· He was too broke to give his father, who died a few days after his release, a decent burial

Staff Reporter

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