Stormy start for Justice Mahase

Stormy start for Justice Mahase

…as she grants contentious order against substantive chief justice…………

MASERU – JUSTICE ‘Maseforo Mahase started her tenure as acting chief justice with a controversial decision likely to trigger questions about her impartiality.
Justice Mahase was appointed last week to replace the suspended Justice Nthomeng Majara who is facing impeachment for incompetence and a morally questionable decision.
Barely a week into the office Justice Mahase granted an urgent order sought by government to block Justice Majara from entering her office and performing her duties.
Government pursued the order after Justice Majara’s lawyer, Advocate Letsika, said she will ignore her suspension letter and continue in her role as chief justice.

In a defiant letter last week Advocate Letsika told government that Justice Majara will “ignore the formal suspension because it is a nullity at law”. He said his client will continue with her duties when she returns from an official trip.  The government’s urgent application fell on Justice Mahase’s desk and she granted it despite the fact that she has interest in the matter. This is because by insisting that she will come to office and perform her duties, Justice Majara was threatening Justice Mahase’s new position as acting chief justice.
Had she rejected the government’s application, Justice Mahase would have been tacitly agreeing to revert back to her position as a judge.

Her order protects her new position and allows her to continue without interference from the incumbent.
Put differently, Justice Mahase has bought herself more time as acting head of the judiciary.
In other words, Justice Mahase presided over a matter in which she is a major beneficiary of an order sought by the government. This raises obvious questions of conflict of interest.

As per the spirit of natural justice, judges are compelled to recuse themselves from cases in which they have interest. That interest, according to tradition and statutes of good practises, can either be direct or indirect. Equally unsettling is that she granted the order ex parte, meaning that she had not heard Justice Majara’s opposition to the application.
Neither Justice Majara nor her lawyers had been served with papers.

The other curious aspect of the order is that Justice Mahase was not even the judge on duty when she presided over the application. The judge on duty was Justice Molefi Makara who handled a number of urgent cases over the weekend. It is an established tradition at the High Court for a judge on duty to preside over all urgent cases.
The temporary order has huge benefits for Justice Mahase as it literally renders Justice Majara persona non grata at the Palace of Justice.
It interdicts Justice Majara from entering the Palace of Justice premises until the case is finalised.

If she tries to enter the premises, she will be violating an order and therefore liable to be charged with contempt of court.
The order also bars her from “purporting to execute any function” as chief justice.

In addition, the order declares Advocate Letsika’s letter to the government on Justice Majara’s behalf as unlawful.
The government also wants the court to order that Advocate Letsika’s letter “incites violence and thereby threatens the peace and stability” of the government. The letter, the government argues, is unlawful and subversive under the Internal Security (General) Act of 1984.

The government’s final request to the court is an order to the Law Society of Lesotho to investigate Advocate Letsika for alleged violation of the Legal Practitioners Act (1993) as well as the Law Society of Lesotho Act (1983). It alleges that by publishing the letter Advocate Letsika wanted to disturb the “peace and stability” of the government.
Justice Minister Mokhele Moletsane told thepost this week that the government had to seek the order to “avoid anarchy that would have ensued if Justice Majara had ignored her suspension”.
“The idea was to avert a potential constitutional crisis,” Moletsane said.

On Justice Mahase’s decision to hear the case, Moletsane said government “has no influence on which judge takes which case” (See related story on Page…).
Ironically, it is acting Chief Justice Mahase who had the responsibility to allocate cases to judges.
Therefore, she could have simply parcelled out that case to another judge who, unlike her, has no stake in the matter.

Letsika said he was preparing to challenge both the interim order and the suspension. He has until September 28 to oppose the application or the order becomes final.
Letsika said the suspension violates two High Court orders that barred the government and Prime Minister Thomas Thabane from making any decision interfering with Justice Majara’s position and duties.

The first order was granted on May 17 this year by Justice Lekale after an application brought by the chief justice.
The other was granted by Justice Tšeliso Monapathi on May 23 following an application by Advocate Letsika, Advocate Zwelakhe Mda and Advocate Karabo Mohau, three lawyers who are fighting in the chief justice’s corner. They have also sued the government for attempting to reinstate Justice Kananelo Mosito as president of the Court of Appeal.

But Moletsane said despite those orders ,the government felt that Justice Majara could not continue to be chief justice as “that would have meant that she would appoint foreign judges for her own case against the government and the prime minister”.

In the case, Justice Majara is challenging the prime minister’s authority to advise the king to establish a tribunal for her impeachment.
That matter has been bogged down by delays due to the raging tuff war between the government and the chief justice over the appointment of the foreign judges.
Moletsane said “it was clear that the chief justice’s position has become untenable”.

“She obviously could not continue to exercise the powers of allocating cases in a court in which she is a litigant,” the minister said.

Staff Reporter

Previous Majara hits back at Thabane
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