MASERU – The independence of the Court of Appeal is under threat, according to Justice Michael Ramodibedi.
Speaking at the opening of the first session of the Court of Appeal on Monday, Justice Ramodibedi said the court is facing threats “from certain faceless quarters”.
Justice Ramodibedi did not name the people blocking moves to make sure the highest court in the land is fully independent.
“Regrettably . . . my relentless fight for the independence of the Court of Appeal has met with fierce resistance from certain faceless quarters,” he said.
This resistance had resulted in the passing of the Administration of the Judiciary Bill 2010 despite his strong objections.
“The Bill, which was drafted without involving the president of the Court of Appeal, was obviously designed to undermine the president’s constitutional authority as the head of the highest court in the country,” Justice Ramodibedi said.
“Shockingly, I am reliably informed that the Bill originated from the High Court.
“If this is correct, it is shocking that the High Court could seek to elevate itself above the Court of Appeal contrary to the constitutional structure of the courts in this country,” he said.
Justice Ramodibedi said the Bill failed to make provision for a separate budget for the Court of Appeal from the High Court in the same manner as the two chambers of parliament (National Assembly and Senate) were separately funded.
He said the Administration of the Judiciary Act failed to provide for a separate registrar for the Court of Appeal.
Only the registrar of the High Court is mentioned in the Act.
In terms of the constitution, however, the Court of Appeal should have its own registrar separate from the Registrar of the High Court, Justice Ramodibedi said, adding that this was captured in section 133 of the Constitution.
Section 133(3) of the Constitution reads: “The offices to which this section applies are – The office of Registrar or Assistant Registrar of the High Court or Registrar or Assistant Registrar of the Court of Appeal.”
Justice Ramodibedi said the word “or” is decidedly disjunctive, thus indicating beyond doubt that the registrar of the High Court is separate from the registrar of the Court of Appeal.
“All of this goes to show that an attempt was made in the Bill to subject the Court of Appeal to the authority of the High Court, something that may be unconstitutional,” he said.
“It is obvious in these circumstances that the Bill or Act is a non-starter.”
Currently, the registrar of the High Court also serves as the registrar of the Court of Appeal.
Justice Ramodibedi argued this was improper because the Court of Appeal’s jurisdiction was separate from that of the High Court.
He said the Administration of the Judiciary Act insinuated that the Court of Appeal and the High Court had the same jurisdiction.
“We need to instil confidence in the minds of members of the public that the Court of Appeal, as the highest court in the country, is not an extension of the High Court.
“Members of the public need to feel that when they come before this court on appeal they can expect fairness and justice as well as a speedy resolution of their disputes,” he said.
The Administration of the Judiciary Act was passed into law last year to deal with administrative issues of the judiciary.