MASERU — The Court of Appeal has ordered a restart to the case in which the Law Society of Lesotho had successfully challenged the Chief Justice’s powers to appoint registrars to hear uncontested matters.
This was after the apex court had found that the High Court had heard the case in its “ordinary jurisdiction” when the matter involved substantive constitutional issues.
Justice Tšeliso Monapathi had ruled that Chief Justice Mahapela Lehohla had overstepped his authority when he appointed the High Court registrar and deputy registrars to hear uncontested matters.
Under the High Court (Amendment) Rules issued by the chief justice in June 2009 the registrar and deputy registrars were allowed to hear unopposed motions, bail applications and unopposed divorce cases.
According to the chief justice the motive was to help reduce the backlog of cases in the High Court by allowing judges to deal with more pressing matters.
But on March 18, 2010 the Law Society brought an urgent application challenging that decision.
The Law Society said the chief justice did not have the authority to parcel out judges’ roles to the registrar and deputy registrars.
It said the chief justice’s decision to substitute registrars and deputy registrars for judges to “exercise judicial powers and perform adjudicative functions” was contrary to the “constitution and legal imperatives under the constitution and the High Court Act 1978”.
The then registrar ’Mathato Sekoai had responded in her affidavit by arguing that because the case involved the interpretation of the constitution and High Court rules the court should not hear the matter in its ordinary jurisdiction.
“The only court which has jurisdiction to hear it is the Constitutional Court,” she said.
The law society responded by pointing out that there is no Constitutional Court in Lesotho.
“The correct position,” the law society argued, “is that the Constitution confers the jurisdiction to interpret and enforce its provisions on the High Court”. “Consequently, the High Court can deal with this matter in its constitutional jurisdiction”.
Justice Monapathi agreed with the Law Society and proceeded to hear the case as an ordinary matter.
He ruled that the chief justice did not have the powers to appoint the registrar and deputy registrars to deal with uncontested matters.
The Law Society’s victory celebrations were however short-lived because the chief justice appealed the decision.
The crux of his challenge was that the High Court should not have heard the case in its ordinary jurisdiction.
Because the case raised constitutional issues, the chief justice argued, the High Court should have heard it as a constitutional case.
The court should therefore have sat as a Constitutional Court with three judges.
On April 27 Justice Johan Smalberger agreed with the chief justice’s argument and granted the appeal.
Justices Douglas Scott and Craig Howie concurred.
Justice Smalberger said “the appellants had been denied a hearing before three judges in the High Court exercising its constitutional jurisdiction to which they were entitled”.
“In all the circumstances it is somewhat surprising, to say the least, that Justice Monapathi was prepared to hear the matter as a single judge exercising his ordinary jurisdiction,” Justice Smalberger said.
He added that on that basis alone the appeal must succeed.
The judge ordered that the Law Society’s challenge should restart in the High Court and this time the court will be sitting as a Constitutional Court with three judges.
On the matter of costs the judge said even though the Law Society had lost the case there was no justification for it to carry the burden of legal bills alone.
He said imposing costs on the Law Society will be tantamount to punishing it for bringing constitutional cases in the public interest.
“In matters such as this the Law Society, to its credit, acts as a watchdog representing the interests of litigants and society in general to ensure that the provisions of the constitution are upheld,” he said.
He added that the law society should not be discouraged from playing this important role in appropriate cases.
“In the circumstances there should be no order as to costs”.