MASERU — High Court judge Justice ‘Maseforo Mahase wants a woman controversially released from prison by Justice Semapo Peete on Sunday jailed.
The Lesotho Times can reveal that the two judges are now on a collision course in a potentially explosive fight that is likely to further embarrass the High Court.
At the centre of the clash is ‘Mamaphoesa Hoohlo who had been jailed for contempt of court by Justice Mahase last Friday.
Mamaphoesa, who works at a local bank, was sentenced to seven days in prison after she disobeyed a High Court order issued by Justice Mahase in March 2010.
The judge had ordered her to allow her ex-husband, Mphekeleli Hoohlo, to see their child.
At that time the two were embroiled in a messy divorce.
Justice Mahase had ordered that ‘Mamaphoesa should allow Hoohlo to see his child when he comes from South Africa where he works at a bank.
When ‘Mamaphoesa ignored the order and continued to deny him access to his child Hoohlo filed a contempt of court case against her in August 2010.
She received the papers but did not respond, leading the court to order her arrest in November 2010.
‘Mamaphoesa however avoided jail after her lawyer intervened and assured the court that she had started complying with the order.
After being given assurance that ‘Mamaphoesa was going to allow him access to his child Hoohlo stopped pursuing the contempt of court case against her.
And for some time ‘Mamaphoesa allowed him access to his child until she suddenly stopped doing so in June last year.
That forced Hoohlo to resuscitate the contempt of court case against her.
Justice Mahase heard the case last Friday and ordered that ‘Mamaphoesa be jailed for seven days.
‘Mamaphoesa was arrested and jailed on the same day.
The chain of events that followed thereafter is what has led to the clash between Justice Mahase and Justice Peete.
On Friday night ‘Mamaphoesa’s sister, Hlalefang Motinyane, started making frantic efforts to have her released.
Motinyane is a lawyer and works in the Law Office which falls under the attorney general’s office.
She is said to have called several judges to hear her sister’s application for release.
This paper understands that at no time did she seek to find Justice Mahase, the judge who was supposed to hear the application since she was the one who had convicted and jailed ‘Mamaphoesa.
After several calls Motinyane eventually found Justice Peete on Sunday morning.
She went to the judge’s house in Maseru West and filed her papers.
The judge is understood to have called acting deputy High Court registrar Mojela Shale to bring ‘Mamaphoesa’s file to his house.
In her application Motinyane had cited Hoohlo, the commissioner of police and the attorney general as respondents.
At 10:45am Justice Peete ordered ‘Mamaphoesa’s immediate release and a few minutes later she was free.
In his handwritten order Justice Peete said ‘Mamaphoesa should be released and also ordered a stay of execution on Justice Mahase’s judgment.
He wrote at the end of his order that the matter must be urgently placed before a judge on duty.
In block letters he said: “Do not place (case) before me”.
The reason for that emphasis was written in brackets: “I know applicant personally”.
A Lesotho Times investigation has revealed the following irregularities in the manner Justice Peete made the order:
- High Court regulations state that only a judge who has granted an order can hear an appeal on the same matter. In this case ‘Mamaphoesa’s application was supposed to come before Justice Mahase as the judge who had convicted her. Justice Mahase was available but was never contacted.
- Justice Peete’s order has the effect of reviewing and reversing Justice Mahase’s order, something that is also highly irregular. An order of a High Court judge can only be reviewed and reversed by the Court of Appeal. Not even the chief justice, the head of the High Court, can reverse an order by a High Court judge.
- Justice Peete issued the order on an urgent and expat basis. That means he issued an order without hearing from Hoohlo the person who had brought the contempt of court case that had landed ‘Mamaphoesa in jail. The attorney general and the commissioner of prisons, who were also cited, were not given a chance to respond. Justice Peete said the matter was going to be heard by another judge at 11am on Monday. That gave Hoohlo and the other respondents less than 24 hours to challenge the order. What is curious is how he could have issued such an order when he admits that he knows the “applicant personally”.
- The judgment that Justice Mahase had issued was final, which means that it could not be stayed as Justice Peete later ordered.
- Motinyane’s application to Justice Peete was irregular because it cited the attorney general and the commissioner of prisons without having launched a formal application to have them enjoined to the case. According to procedure she should have brought the application for enjoinder to the High Court before including them as respondents.
- Motinyane’s notice of motion to appeal and certificate of urgency were irregular because they were not signed by an attorney as the law stipulates. In other words Motinyane was working without instruction from an attorney, a serious offence under the Legal Practioner’s Act. Although Motinyane is a lawyer by profession she cannot appear before a judge in a private matter because she works for the attorney general. Her role is to act on behalf of the government through the attorney general. As a crown counsel she represents the attorney general. What she did on Sunday was to appear in her individual capacity in a matter in which her employer, the attorney general’s office, was a respondent.
- Motinyane was accompanied by one Tsepo Mothibeli when he appeared before Justice Peete on Sunday. Mothibeli is a trained lawyer working for the Lesotho National Development Corporation. It has however emerged that despite his legal training he too did not have a right to seek audience with the judge.
Matters came to a head on Monday morning when Justice Mahase discovered that her order had been reviewed and reversed by Justice Peete.
This was after Advocate Shale, ‘Mamaphoesa’s new lawyer, approached her court.
Shale said he had approached the court because Justice Peete’s order on Sunday said the matter must be placed before a judge on Monday.
Advocate Ramafole KC, Hoohlo’s lawyer, said she had only received ‘Mamaphoesa’s application at 8:36am on Monday.
She raised serious concerns on the manner in which ‘Mamaphoesa had been released by Justice Peete’s order.
Ramafole said ‘Mamaphoesa was not being candid to the court.
She said she was surprised that Justice Peete issued an order yet he admits that he knew ‘Mamaphoesa personally.
“Why did Justice Peete also in turn entertain it (Sunday’s application) even though among others he says he knows that applicant personally? Is this not the very reason why he should not have entertained the application in the first place?” Ramafole asked.
She also asked why Justice Peete ordered that the application be placed before a judge on duty when he knew that the order he was effectively reversing had been granted by Justice Mahase.
“Why did he not order for case to be placed before Justice Mahase and in the ordinary way since applicant had already been found guilty of contempt of court and was imprisoned for same? Why could such application not wait until Monday?”
She said ‘Mamaphoesa should be sent back to jail because the notice of appeal was not signed and it had not been allocated to the Court of Appeal.
“What this means is that there is no appeal before this court or before the Court of Appeal. A seemingly livid Justice Mahase said she was not going to entertain the matter ‘Mamaphoesa had brought to court,” she said.
The judge said she was not even going to consider Justice Peete’s order.
‘Mamaphoesa, the judge said, should be sent back to jail to complete her sentence.
The judge however had some harsh words for Motinyane and Mothibeli.
“As for Motinyane and Mothibeli what they have done borders not only on fraudulent activities, but it is a further display of the disregard of orders of this court,” the judge said.
“Ms Motinyane’s actions of insubordination and fraud are going to be formally reported by this court to the chief justice, the attorney general and Law Society.”
She obviously has no audience and her actions constitute a clear conflict of interest and fraud.”