Judge  under fire

Judge under fire

MASERU-ACTING Chief Justice ’Maseforo Mahase came under fire this week after she allegedly decided to allocate a high-profile case and discuss it with other judges.

The matter came to light after a High Court registrar, Advocate Maiketso, told the court that an application would be delayed because Justice Mahase was still to allocate it to judges who will hear it.
Advocate Maiketso also said Justice Mahase was yet to “discuss” the matter with the judges.

The case involves 29 soldiers and police officers who filed an urgent application in the High Court seeking a declaratory order to block two foreign judges from hearing their case.
The accused soldiers, who have been in remand prison since 2017, are arguing the judges are not fit to hold office.

In their application, they said they are no longer confident to have Justice Onkemetse Tshosa who is from Botswana and Justice Charles Hungwe from Zimbabwe presiding over their cases.
They also pleaded with the court to have their cases permanently stayed.
The application was to be moved on an urgent basis.
However, on Tuesday the court heard that Justice Mahase had directed the registrar to inform the involved lawyers that they would be informed of the allocation of their case after October 9 as she had set up a meeting with the judges to discuss the matter on October 16.

This has brought confusion to the lawyers since they expected that the matter would be heard on an urgent basis.
One of the defence lawyers, Advocate Zwelakhe Mda, said this was the first time in his long legal career that he was hearing that a Chief Justice could have a meeting with judges to discuss an application.

“It is surprising and scary that the ACJ has specifically set up a meeting for our case,” Advocate Mda said.
“What is it that they are going to discuss? It is suspicious to us,” he said.
The former president of the Law Society, Advocate Tekane Maqakachane, said what the Chief Justice is doing “is totally disrespectful”.

He said the insistence by Justice Mahase to allocate the cases “points to disrespect for the decision of the Court of Appeal”.
“The higher court has made a decision and all the lower courts must respect that decision of the higher court,” Advocate Maqakachane said.

“The Chief Justice has no legal authority to allocate cases, what she can do is to regulate the allocation of cases,” he said.
He said the High Court Act of 1978 and the Administration of the Judiciary Act of 2011 state that she has no authority to allocate cases.
What she is now doing is to disrespect the decision of the Court of Appeal, he said.

“Even an ordinary person can conclude that the continued insistence to allocate the matters and to sit over those matters is because she has a motive or other reason not to allocate,” he said.
He said there are a lot of cases which Justice Mahase has presided over because she had an interest in them.

“Where the Chief Justice has a personal or political interest in a case, she will create all bottlenecks that will ensure that such cases do not get to another judge regardless of whether it’s urgent or not,” he said.
Advocate Maqakachane said there is an established practice that where Justice Mahase has interest in a matter, that matter could not be allocated.

He recalled that the Law Society had a case in which Justice Mahase took over two to three weeks without allocating it until the Law Society went to the Court of Appeal.
Justice Mahase had said she was yet going to seek advice from the Attorney General.

“She was a party in the case, she was cited together with the Attorney General but she just left the case there and made an order that it would wait until she got advice from the Attorney General yet the matter was urgent,” he said.
Advocate Maqakachane said in the present case one would reasonably conclude that Justice Mahase could have “her political interests contrary to the position she holds as Chief Justice”.

“It is not for her to determine the good and bad of the cases, it is the deputy registrar of the High Court’s responsibilities to allocate cases in the High Court,” he said.
He said Justice Mahase “must stop this habit of hers to want to allocate or sit over cases”.

“It brings disrepute to the office of Chief Justice, and she makes the judiciary to continue being involved in the politicisation of the Judiciary,” he said.
“Even if she was to have the authority to allocate or appoint judges, she should never ever have to discuss issues of the case with any judge.”

Itumeleng Khoete

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