Judge to  rule on Mosito tribunal

Judge to rule on Mosito tribunal

Leisa Leisanyane

MASERU – HIGH Court judge Justice Moahloli is today expected to deliver judgment in a case in which the Law Society of Lesotho is challenging the setting up of a tribunal to impeach a top judge.
The society has asked Justice Moahloli to review and set aside any decisions of the tribunal King Letsie III set up to impeach Court of Appeal President Justice Kananelo Mosito.
The society argues the decisions reached by the tribunal were ridden with illegalities, irrationalities and gross irregularities.
However, the Attorney General Tšokolo Makhethe, is arguing the Law Society does not have locus standi to bring the case before the court.

Makhethe also argued in his court papers that the Law Society is interfering with proceedings of the tribunal. He said the requirements for an interim interdict it had filed was also lacking.
In its response on the issue of locus standi, the Law Society said section 4 of the Law Society Act 1983 gives them necessary locus standi.

“As a matter of fact, this point as against the (Society) is not novel: this court and the Court of Appeal has decided this point before,” the Law Society said in its papers.
“In all matters where this point was argued against the (Society), our courts have always ruled in favour of the (Society),” it said.

The Law Society said a proper interpretation of section 4 of the Law Society Act is one that best conforms to the provisions of section 15 of the Interpretation Act No. 19 of 1977 which provides that every enactment shall be deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
It held further that in interpretation of statutes, the most important rule is that words and phrases used in a statute should first be given their ordinary grammatical meaning, deviation from such meaning will only be justified if such meaning leads to absurdity.

“It is our humble submission that the phrase ‘assist in the administration of  justice’ appearing in section 4(a) of the Law Society Act is clear and unambiguous and as such, no deviation from its ordinary grammatical meaning will be justified in these circumstances.”
“We therefore, submit that a liberal, fair and large interpretation of the phrase ‘to assist in the administration of justice’ as used in section 4(a) of the Law Society Act is that the (Society) has as one of its object, the duty to ensure that the rule of law is upheld,” the society said.
“This interpretation gains support from section 4(l) of the Law Society Act which provides that one of the objects of the (Society) is to ‘do all such other things as are incidental or conducive to the attainment of the above objects,” the society argued.

Making reference to a Court of Appeal case Law Society of Lesotho vs Prime Minister of Lesotho C of A (CIV) No. 5 of 1985 where in an attempt to ensure respect for the rule of law, the (Society) successfully challenged an appointment of a civil servant who was a member of the executive to the High Court bench.

The society submitted that logic dictates that if it has locus standi to challenge an appointment of a judge, one cannot belittle its status by arguing that it cannot bring an application of this nature to this court.

The defence said the Law Society came before the court in the disguise of Justice Mosito but the society answered that it found that allegation insulting to it.
“The pleadings are clear, the Applicant is the Law Society of Lesotho and the 5th Respondent (Justice Mosito) is cited as a Respondent only because                                                     he is likely to be affected by the outcome of this application, as such he is a necessary party to be joined,” the society said.

“In fact, failure to join him would render the applicant guilty of material non-joinder.”
In an affidavit, the society’s president Attorney Tumisang Mosotho said “this application is urgent in as much as it involves the determination of issues of enormous public importance”.
“I wish to emphasise that the outcome and/or advice likely to be given by the Respondents is likely to be a bad precedent that may be used at any time to destabilise the judiciary and affect, adversely, the independence of the judiciary,” Mosotho said.
The Attorney General argued the Law Society had failed to show that it is likely to suffer irreparable harm in the event that the interdict is not granted.
In Response, the society said “irreparable harm in this context must be understood in its wide sense to include any prejudice suffered by the applicant as a result of the infringement of his right”.

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