His Majesty King Letsie III has rejected a request by two Judicial Service Commission (JSC) members, Acting Chief Justice 'Maseforo Mahase and Attorney General Haae Phoofolo, to appoint five new judges, government sources have said.
The Senior Private Secretary to His Majesty, Monehela Phosholi, this week refused to comment on the matter, saying issues surrounding the appointment of judges, "are not in the scope of my work".
However, authoritative government sources said the King had turned down Justice Mahase and Advocate Phoofolo's recommendations on the grounds that the two could not sit on their own and make recommendations on such a weighty matter without the input of other JSC members.
Justice Mahase and Advocate Phoofolo had met on 20 August 2020 and recommended the appointment of five people to the High Court bench.
The five are the Deputy Attorney General Tšebang Putsoane, lawyers Tšabo Matooane, Mokhele Matsau, Moneuoa Kopo and Maliepollo Makhetha.
The sources said His Majesty had rejected the nominations and ordered the JSC to reconvene with all its four members in attendance. The JSC comprises of the chief justice, the attorney general, the chairperson of the Public Service Commission (PSC) and a nominated judge.
"A sitting of all the members of the JSC," one source said, "would ensure that the names recommended to His Majesty for appointment as judges are based on a wider consensus rather just two members... "
Justice Mahase and Advocate Phoofolo had recommended the immediate appointment of Makhetha, Matooane, Matsau and Mokhele while Adv Putsoane would only be appointed in December 2020 when he would have retired from his current post.
According to the sources, immediately after Justice Mahase and Advocate Phoofolo met, the JSC's secretary, Adv 'Mathato Sekoai, wrote to the King saying she had been instructed by the JSC to inform him that it had recommended the immediate appointment of the four as judges while Adv Putsoane had been recommended for appointment in December 2020.
Adv Putsoane was initially supposed to retire from the civil service in March 2021 but the sources said he indicated his willingness to surrender his leave days so that he could retire this December to allow him to take up the post of judge.
However, the recommendations torched a storm with Law and Justice Minister Professor Nqosa Mahao saying they were conducted in secret by the duo who did not even constitute the required quorum of JSC members.
Prof Mahao also argues that the appointment of substantive judges should be held in abeyance until after the implementation of the judicial reforms recommended by SADC to ensure the best candidates are chosen in an open and transparent process.
According to government sources, the King declined to appoint the five judges.
His Majesty is said to have communicated his decision to Prime Minister Moeketsi Majoro in a meeting at the Royal Palace last week.
"The King turned down a recommendation to appoint the five as judges," a source said.
"His Majesty wants the JSC to call for a fresh meeting and all of its members must be present when the commission discusses issues of the appointment of judges.
"The King feels that this is a significant issue of national interest and cannot be handled in this manner. He wants all JSC members to be in attendance when the commission discusses the appointment of judges."
The King had also rejected Mr Putsoane's deferred appointment.
"The King ordered Ntate Phosholi to write to the JSC indicating that the recommendation to appoint Putsoane must be made at the material time, not now. Ntate Phosholi has already written to the JSC to communicate the King's decision," the source said.
When contacted for comment this week, Mr Phosholi said he could not discuss the issue with the media.
"I cannot talk to you about the issues surrounding the appointment of judges. They are not in the scope of my work," Mr Phosholi said.
Asked who was mandated to speak on such issues on behalf of His Majesty, he said, "there is no one who can talk to you about that matter".
Prof Mahao this week said he was still in the dark as to whether or not the King had agreed or declined to appoint the five as judges.
"That matter was taken to the palace and I think the palace is addressing it. We have not received any feedback," Prof Mahao told this publication.
Dr Majoro's spokesperson, Mosito Moqhekoana, yesterday asked for more time to consult the premier before he could comment on the matter. He had not given his response at the time of going to print last night.
On her part, Adv Sekoai said they were still waiting on the King. She said they had hoped His Majesty would respond to the recommendation to appoint the five as judges as well as the request for acting judge Polo Banyane to be appointed on a substantive basis.
She said the King had only acceded to the appointment of Justice Banyane who had been an acting judge since 2 May 2019.
"The JSC has not yet received any feedback from His Majesty's office regarding the five candidates so we cannot say when they will be appointed," Adv Sekoai said.
"The JSC sat on 20 August 2020 and recommended five candidates for appointment as judges and nothing has halted the process to my knowledge.
"Justice Banyane had been serving on a contract basis and was recommended by the same people (Justice Mahase and Adv Phoofolo) who recommended the five for appointment as judges.
"Our expectation was that the five would be confirmed at the same time with Justice Banyane but that was not the case.
"We are still expecting a response from the King. We had expected that His Majesty would have responded by now. This is a process between His Majesty and the JSC. "Although His Majesty responds after different time intervals, it is unusual that he has not responded (on the five) by now," Adv Sekoai said.