MASERU – The Law Society of Lesotho has filed a lawsuit at the High Court asking the court to declare as unlawful rules that allow the High Court and Court of Appeal registrar and her deputy to preside over court cases.
Chief Justice Mahapela Lehohla in 2009 amended court rules effectively giving the registrar ’Mathato Sekoai and her deputy Lesitsi Mokeke powers to sit as judges in uncontested cases at the High Court.
But the law society says Chief Justice Lehohla overstepped his bounds because constitutionally he has no power to make or enforce such amendments.
Chief Justice Lehohla has “no authority to delegate judicial powers and adjudicative functions” to Sekoai and Mokeke, argues the law society.
Chief Justice Lehohla is opposing the law society application.
He argues that the High Court does not have jurisdiction to preside over the matter.
The High Court on Tuesday deferred the matter to May.
In the court papers, the law society says “the purported granting of adjudicative authority and/or judicial powers on the second respondent (Sekoai) and third respondent (Mokeke) by the first respondent (Lehohla) should be declared null and void and of no force and effect”.
The law society wants the High Court to discard the amendment made by Chief Justice Lehohla on the High Court rules because they contradict the constitution, according to papers lodged at the High Court.
“The High Court (Amendment) Rules 2009 pursuant to which the first respondent (Chief Justice Lehohla) purports to substitute registrar for judge in respect of adjudicative functions to hear and determine matters or cases mentioned hereunder should be declared inoperative in as much as they are ultra vires under section 131(a) of the constitution, read with section 5 of the High Court Act No. 5 of 1978.”
In the court papers, the law society says Lehohla, the Judicial Services Commission and the Attorney General, Tšokolo Makhethe, should explain why Sekoai, her assistants and deputies “shall not be restrained and interdicted from exercising any judicial powers and adjudicative functions against litigants contrary to section 12(1) and (8) and section 118(2) of the constitution”.
The case was first filed in March last year after Sekoai and Mokeke presided over some uncontested motion cases following the amendment of the rules by the Chief Justice.
The two have not presided over any other cases since the law society lodged the application challenging their judicial powers to hear cases.
A law society meeting held on March 9 last year resolved to urgently challenge the new rules following members’ “disquiet about the legality and constitutional propriety of the registrar’s role enrolling motion courts, arresting suspects de fuga and hearing divorce matters”.
The first amendment to the High Court rules giving the registrar judicial powers were made in 2002 when Chief Justice Lehohla issued the High Court (Amendment) Rules to allow a registrar to enter default judgments.
On June 30, 2009 Chief Justice Lehohla went further to amend the High Court rules to make a provision for uncontested matters to be heard by a registrar instead of a judge.