Lesotho: Justice Monapathi Clears the Air On Mahase Case

16 October 2019

A senior judge, Justice Tšeliso Monapathi, has denied claims by some lawyers that the Constitutional Court flouted legal rules by electing to hear a case involving Acting Chief Justice 'Maseforo Mahase in chambers instead of the open court to allow the public to follow proceedings.

Justice Monapathi said he and fellow justices, Semapo Peete and Keketso Moahloli did not violate any rules by hearing the case in chambers because the respondents' lawyers were not appropriately dressed as they were not in their court robes.

He was responding to claims by lawyers who slammed last Wednesday's unprecedented decision by the three judges to hear constitutional arguments in Judge Mahase's impeachment case in chambers. The lawyers said the decision "violated every legal rule about how the courts must conduct themselves" as it deprived the public of the opportunity to following proceedings in a case that was of major public interest. Justice Mahase; the Judicial Service Commission (JSC), Prime Minister Thomas Thabane; Attorney General Haae Phoofolo, and His Majesty King Letsie 111, are cited as applicants in the recusal case. They are represented by Advocate Rethabile Setlojoane and a Durban-based lawyer whose name was not stated in court. Mr Hlaele and The Law Society of Lesotho are the two respondents and they are represented by lawyers, Koili Ndebele, Monaheng Rasekoai and Christopher Lephuthing.

The recusal case is based on an application by All Basotho Convention (ABC) secretary general, Lebohang Hlaele, to have Judge Mahase impeached over what the politician describes as her gross incompetence. Mr Hlaele accuses Justice Mahase of several acts of commission and omission which he says have put Lesotho's judiciary into disrepute, warranting her removal from the bench. Mr Hlaele is seeking an order for the Judicial Service Commission (JSC) to kick-start processes to have the acting chief justice impeached.

But Judge Mahase has fired back with her Constitutional application for the recusal of Lesotho's entire bench from hearing Mr Hlaele's case. She accuses most of Lesotho's High Court judges of gross incompetence. She fears some will rule unfavourably against her because of her differences with them. Some had been insubordinate and refused to take instructions from her since her appointment as acting chief justice, she claims. Ironically, Judge Mahase cites Judge Monapathi, the presiding judge in her case yesterday, among the "insubordinate" and "incompetent" judges.

Judges Monapathi, Peete and Moahloli heard the case in chambers, depriving the country and public of an opportunity to hear Judge Mahase's elaboration of why he deems her colleagues incompetent and unfit for purpose. The three judges reserved judgment to 30 October 2019 after hearing arguments from both sides.

However, their decision to hear the case in chambers was sharply criticised by some lawyers last week.

"All constitutional cases must be heard in public in an open court in full view of the world. There is no law or rule that says a case involving a judge or judges must be heard in darkrooms away from the public glare... What are they (judges) hiding?

"Are they also going to keep their judgment a secret which they will only share among themselves? This all very shameful," said a lawyer who preferred anonymity for professional reasons.

However, Justice Monapathi this week told the Lesotho Times that there was nothing untoward about hearing a case in chambers.

He said the court had initially planned to only set a date for hearing the case but they decided to hear the case to finality after one of the applicants' lawyers pleaded with them, saying he had come all the way from Durban and could not afford another postponement. Justice Monapathi said they then resolved to hear the matter to finality but they did so in chambers because the applicants' lawyers were not appropriately dressed as they were not in their court robes. He said lawyers had to be appropriately dressed for proceedings.

"We had scheduled to meet with counsels from both sides on that day and set the date on which the matter would be heard in an open court," Justice Monapathi said, adding, "however, the counsel for the applicants came ready to proceed".

"He (applicants' lawyer) said he had come all the way from Durban and could not afford to come back again. He said he was ready to proceed (on 2 October 2019). On the other hand, the respondents' counsels were not robed therefore they agreed to proceed in chambers.

"But hearing a matter in chambers does not really mean that the public is barred from listening because they can still attend proceedings in chambers. A big courtroom can also be turned into a private session if a lawyer wants to address me if he is not robed (dressed in his court robes). I would ask the doors to be closed.

"Court proceedings can even be held at the judges' residences, more especially when urgent interdicts are sought very late in the evening but that does not mean people cannot attend if they wish to," Justice Monapathi said.

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