It’s unfair to fight judge in the media

It’s unfair to fight judge in the media

Rapelang Mosae

The administration of justice in Lesotho has endured trying times in the past, and still continues to do so. The problems in the judiciary have led to the erosion of public confidence in the courts of Lesotho. We have seen the former Court of Appeal President Justice Mathealira Ramodibedi and the former Chief Justice Mahapela Lebohang Lehohla fight over who was the most senior judge in the country.

We have also seen a group of lawyers fight one of their own over acceptance to the high position of President of the Court of Appeal and most recently we have a lawyer using the media as a machine to criticize a presiding judge.

It is common cause that double ritual murder suspect, Lehlohonolo Scott and his mother, are finally before court to be tried for the two murders.

However the case has been characterized by as number of delays including the most recent one where the lawyer representing the Scotts, Adv Hoeane, has taken his gloves off to fight the Presiding Judge Justice Teboho Moiloa.

The judge has been accused of bias after he allowed admission of certain evidence which Adv. Hoeane submits was incorrectly tendered. Adv. Hoeane objected to the tendering of the evidence in court but was ultimately overruled.

This clearly did not satisfy Adv Hoeane as he quickly approached the media, informing it of the ruling made by the Judge and how unfair it was. He went further to state that he was withdrawing from the case.

Our courts have on previous occasions been accused of a plethora of crimes in the court of public opinion. It is therefore troubling and indeed lamentable to have a member of the legal fraternity enter the fray and drag the name of the judiciary through the mud in such a manner.

Adv. Hoeane, with great respect, has breached a number of ethical duties owed by him as a legal practitioner to the courts.

After his spat of venting his anger at the judge in the media, Adv. Hoeane went back to defending the Scotts and his first order of business was moving for the recusal of Justice Moiloa from the case. The application was made before court however it was ultimately rejected.

This too did not amuse Adv. Hoeane as he has most recently indicated his intention to take the matter further, stating that he did not appreciate the language used in the ruling dismissing his application.

It is not necessary for purposes of this piece to delve into the merits of his allegation.

Adv. Hoeane has shown his displeasure with the decision and it ought to be borne in mind, that the grant of a recusal is not automatic. Recusal hinges on the judge voluntarily stepping down on his own accord or after an application is made and he or she grants it. Anything else would fall within the ambit of disqualification of a judge not recusal.

The right to seek a judge’s recusal is one that should be used very carefully because judges by virtue of their office are expected to apply their minds to cases before them without any exterior influence. Under English common law, the only basis for recusal of judges was financial interest. However today it is accepted that judges can be recused for other reasons.

For a judge to recuse himself it must be shown that there is a likelihood of bias. This clearly gives the judge the last word and in this case the last word was NO. Adv Hoeane as an officer of the court should accept this and continue with the case lest he be accused of resorting to delaying tactics.

According to Robert Bell and Caroline Abela a lawyer should promote the public’s confidence in the administration of justice.  Adv. Hoeane has correctly pointed out that judges should never be seen to enter the arena of litigation.

He however took this further and stated on record that Justice Moiloa has descended into the arena and has in fact joined the prosecution team. That statement coming from a legal practitioner should send chills down the spine of anyone in the legal fraternity.

Surely that statement does not promote public confidence in the judiciary because it says to the public that we have unprofessional judges who can’t approach a case neutrally. This literally means our judges are incompetent.

It cannot be said that law is a profession and historically a professional was distinguished from a tradesperson by a public declaration, which is today demonstrated by the oath taken at admission at the bar, to serve others and devote their intellects and efforts to the public good.

There is no public good which can come from a disrespect and loss of confidence in the judiciary. One writer states that the judiciary stands on equal footing with the executive and legislative arms of government.

However in terms of political, financial or military powers, the judiciary has no hope of competing with the other two arms. It is for this reason that the judiciary only relies on its moral authority. However attacks such as those of Adv. Hoeane will make the judiciary lose its only stronghold which is moral authority.

Some may not know this but Adv. Hoeane undoubtedly knows it very well – that judges are not expected to comment about their judgements or rulings anywhere but in the courtroom. It is thus very unfair to fight Justice Moiloa in the media knowing quite well that he won’t have recourse to the same audience.

The media reserves the right of reply in all its publications; however Justice Moiloa cannot have recourse to that right.

This stance was propounded by Krieler J in the celebrated case of S v Mamabolo where it was stated: “Courts have over the centuries developed a method of functioning a self-discipline and restraint which, although it differs from jurisdiction to jurisdiction, has a number of essential characteristics. The most important is that judges speak in court and only in court. They are not at liberty to defend or even debate their decisions in public.”

The reason for this restraint is simple; courts are there to bring finality to legal problems. That is why a judge sits in authority whereas lawyers only make submissions which can be rejected or upheld. Dragging the judge into the media removes his authority.

Adv. Hoeane as a seasoned lawyer with over 15 years’ experience should understand and be able to distinguish the two roles.

Adv. Hoeane seems to have embarked on a two-pronged approach to the case – trial by court and trial by media. He argues in court and when that fails he comes to the media to get audience and perhaps a better reception.

This is unethical and further impugns on the judges independence as well as effectively putting justice to into disrepute. Essentially, Hoeane is effectively saying to Justice Moiloa that ‘it’s either you grant my prayers or else prepare yourself for vigorous ridicule in the media’.

As stated in the introduction, the judiciary in Lesotho has endured a lot already. It has suffered enough. It honestly adds insult to injury to have its name dragged through the mud by one of its own. It is therefore in the interest of justice for Adv. Hoeane to reconsider his conduct in the media and put himself on a higher ethical standard as a senior practitioner, with all due respect.

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