Top judge blasts judges

Top judge blasts judges

MASERU – COURT of Appeal President, Justice Kananelo Mosito has expressed deep concerns about the lack of accountability by judges.
Justice Mosito, said this while delivering judgment in a maintenance case in which a judge never wrote any reasons for his decision.
The matter was heard in August last year.
Justice Mosito said this was totally unacceptable.
“Failure by the High Court judges to provide reasons for their decisions has been a very serious concern for this court for over two decades now,” Justice Mosito said.

“Decisional accountability is a fundamental aspect of judicial independence,” he said.
“There need to exist a built-in system to ensure that judges are held accountable for their decisions.”
Justice Mosito said the duty to provide reasons is an important part of the duty to account.
He said the Court of Appeal undertook a methodical review of the numerous cases in which it had deprecated the practices of some of the High Court judges who fail to provide reasons for their judgment.

Quoting Lord Denning MR in a 1968 case in the Court of Appeal of England, Justice Mosito said “failure to give reasons may justify the court to infer that there are no good reasons”.

“That was admittedly said in the context of an administrative decision but the principle laid down therein is, in my view, equally valid for decisions of courts of law,” he said.
He also recalled that in April 2002 High Court judge Justice Semapo Peete upheld an appeal against the conviction and accordingly ordered the return of a firearm to a respondent.
The appeal fee and the fine were also refunded to the respondent.

“Regrettably the learnt judge a quo advanced no reasons for his order,” he said, quoting a judgment of the Court of Appeal.
“This, despite several warnings by this court strongly deprecating the failure by judicial officers to provide reasons, something which can only bring the justice system into disrepute,” he said.
He also quoted his predecessor Justice Michael Ramodibedi in another case saying: “The failure by both courts to give reasons for their decisions is particularly reprehensible.”

Quoting from another Court of Appeal judgment he said: “The absence of such reasons may operate unfairly, as against both the accused person and the state. One of the various problems which may be occasioned in the Court of Appeal by the absence of reasons is that in a case where there has been a plea of guilty but evidence has been led, there may be no indication as to how the court approached the question of sentence.”

In another case, he quoted the Court of Appeal saying: “On 20 March 2002 this order, with interest and costs, was granted by Monaphathi J. The learned judge undertook to amplify his ruling with full reasons. One notes, with grave concern, that they have not been furnished.”
Justice Mosito said in the past he said something on this subject “and it is with regret that I have to return to it”.
“It has come to our attention in the Court of Appeal that there are judges in the High Court, who fail, sometimes even often fail, to produce reasons for their judgments,” he said.

He said in such cases appeals in the Court of Appeal are heard without the benefit of reasons.
“Quite obviously such a practice cannot be deprecated strongly enough as it is not only unethical but it also leads to a perception that judges give arbitrary decisions which are not supported by any reasons,” he said.
Justice Mosito said it need hardly be stated that arbitrariness is itself a form of dictatorship which is in turn a foreign concept to the rule of law which judges must uphold.

He said if the practice is allowed to continue, such practice will no doubt bring the whole justice system into disrepute.
“It undoubtedly leads to loss of public confidence in the ability of courts to resolve disputes,” he said.

He said it cannot be emphasized strongly enough that a duty to give reasons inspires public confidence in the courts that their decisions are not arbitrary but rational.
“It enables the litigants concerned to know why a decision was reached one way or the other.”

Staff Reporter

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