MASERU — Chief magistrates are up in arms against the proposed restructuring giving High Court and Court of Appeal registrar ’Mathato Sekoai (pictured) supervisory powers.
They say her elevation to a position above them is unconstitutional.
Last week the senior magistrates and the President of the Labour Court, Lebereko Lethobane, wrote to Chief Justice Mahapela Lehohla to register their displeasure with the new changes.
In their 28-page letter, seen by the Lesotho Times, they argued that Sekoai lacks the credentials to enjoy precedence over the Chief Magistrate and the President of the Labour Court.
The controversial restructuring seeks to place Sekoai to a managerial position above senior judicial officers like magistrates and the President of Labour Court.
Sekoai will be responsible for coordinating the administration and supervision of the entire judiciary including the High Court and the Court of Appeal.
Under the newly-enacted Administration of Judicial Act 2011, Sekoai will become the judiciary’s chief accounting officer in charge of all the courts.
But the chief magistrates and the Labour Court president are not pleased by the changes.
The senior magistrates from Lesotho’s 10 magistrate courts and Lethobane are adamant that the Administration of Judiciary Act’s provision that gives Sekoai supervisory powers over them is unconstitutional.
“We have consistently but in vain advanced (their) position at various forums held between the registrar, officers from the Ministry of Public Service and ourselves,” said the letter.
The Administration of Judiciary Act provides for the establishment of two offices that will help the Chief Justice run the courts effectively.
It also provides for the formation of the offices of the deputies of the Registrar of the High Court and the Court of Appeal that will directly deal with the administrative and legal affairs of the courts.
Its writers describe it as “an act to provide an autonomous and administration of the judiciary” that will have powers to manage the Court of Appeal, the High Court and all subordinate courts.
The Act says the administrative part of the courts should be under a judicial administrator who will have certain knowledge of law and expertise in management.
The judicial administrator’s duty is to ensure that cases are heard and finished in all courts, from the local courts up to the Court of Appeal.
The legal affairs of the courts will be overseen by the Deputy Registrar (Legal) whose expertise in law will help solve complex issues in a daily running of courts.
But the senior magistrates say the Act, which restructures the judiciary, does not recognise the existing laws when it imposes Sekoai on them despite that she is not a fully fledged judicial officer.
They argue that Sekoai is not a judge, a magistrate nor a lawyer admitted to the bar and therefore she is not qualified to hold a supervisory position over them.
“A judiciary is a founded and driven organ of government in that it is, in principle, led and operated by sitting judicial officers who are, by law, assigned jurisdictional powers to be exercised in a prescribed manner within a relevant court,” they say.
The magistrates say Sekoai’s new status and “her purported powers which are premised upon a simplistic and foundationless interpretation of the constitution and the Act” are myths.
“She even further claims to have administrative authority over the Court of Appeal,” they complained.
Sekoai, the magistrates say, has a “misleading, confusing and unorthodox tendency to defend her views by invoking the authority of the Chief Justice.”
“The impression thereof being that her legally foundationless contestations are those of the Chief Justice and/or that the Chief Justice would definitely endorse them.”
The magistrates have also declared that it would be “practically impossible for us to further participate in any of the future sessions which would be chaired by the registrar in the exercise.”
The magistrates emphasised that in a democratic dispensation the constitution is supreme law and not parliament which enacted the Act.
“We have, in this respect, discovered that the Act is riddled with unconstitutional provisions.”
The Act makes the registrar a judicial officer but at the same time says she will liaise and coordinate with the principal secretaries and heads of departments on policy matters.
“This will conflict with judicial independence and the discharge of judicial functions and also dictates that the policy related functions be entrusted upon a non-judicial officer,” the magistrates note.
Where the Act makes the Registrar the Chief Accounting Officer in terms of Finance Act 1988, the magistrates argue that she will be “under the control and supervision of the Minister of Finance, Principal Secretary for Finance and the Accountant General.”
“One cannot be a judicial officer, a chief accounting officer and a policy guardian, who in the latter respect collaborates frequently and proximately with the principal secretaries who are undeniably political appointees.”
They added that the registrar is a “judicial officer in the general sense” not in the “strict legal sense.”
Quoting from Black’s Law Dictionary, the magistrates said a “judicial officer means a judge or magistrate. The term . . . in the strict legal sense applies only to an officer who determines causes between parties or renders decision in a judicial capacity . . . A person in whom is vested authority to decide causes or exercises powers appropriate to a court.”
They also cited a recent High Court judgment in which Justice Tšeliso Monaphathi found that the Chief Justice had erred in appointing registrars to hear uncontested cases.
“The registrar cannot be bestowed with the leadership over judges, magistrates and court presidents as such leadership is only befitting a judicial officer in the strict legal sense.”
They say in countries like Botswana, Uganda, Tanzania, South Africa and Canada a registrar is a person who would “have risen through the ranks of magistracy and/or extensive and relevant legal practice, these are very senior magistrates or
“The current situation in Lesotho is novel and unprecedented.”
“The discovery is that in most of those jurisdictions, the appointment of the registrar is analogous with the appointment of judges hence reference to them as judges-in-waiting.”
Sekoai was one of the experts consulted by the parliament’s Law and Public Safety Cluster during the drafting of the Bill before it was enacted into the Administration of Judiciary Act.
Chief Magistrate Molefi Makara was also consulted.
The Lesotho Law Society president, Zwelakhe Mda, together with other experts from the Law Reform Commission also gave their opinions on the Bill.