THE CEREMONIAL OPENING OF THE HIGH COURT SESSION 2012 BY HIS LORDSHIP THE CHIEF THE HONOURABLE MR. JUSTICE M.L. LEHOHLA WEDNESDAY 1 ST FEBRUARY, 2012 HIS MAJESTY KING LETSIE III THE RT. HON. THE PRIME MINISTER THE HON. PRESIDENT OF SENATE THE HON. MADAM SPEAKER OF THE NATIONAL ASSEMBLY THE HON. PRESIDENT OF THE COURT OF APPEAL HONOURABLE MINISTERS THE HON. JUDGES OF SUPERIOR COURTS THEIR EXCELLECIES MEMBERS OF DIPLOMATIC MISSIONS THE HON. ATTORNEY-GENERAL THE MAYOR OF MASERU CITY PRINCIPAL AND WARD CHIEFS CHAIRPERSONS OF: THE PUBLIC SERVICE COMMISSION THE INDEPENDENT ELECTORAL COMMISSION 1
Transcript
THE CEREMONIAL OPENING OF THE HIGH COURT SESSION 2012 BY HIS LORDSHIP THE
CHIEF THE HONOURABLE MR. JUSTICE M.L. LEHOHLA
WEDNESDAY 1ST FEBRUARY, 2012
HIS MAJESTY KING LETSIE III
THE RT. HON. THE PRIME MINISTER
THE HON. PRESIDENT OF SENATE
THE HON. MADAM SPEAKER OF THE NATIONAL ASSEMBLY
THE HON. PRESIDENT OF THE COURT OF APPEAL
HONOURABLE MINISTERS
THE HON. JUDGES OF SUPERIOR COURTS
THEIR EXCELLECIES MEMBERS OF DIPLOMATIC MISSIONS
THE HON. ATTORNEY-GENERAL
THE MAYOR OF MASERU CITY
PRINCIPAL AND WARD CHIEFS
CHAIRPERSONS OF: THE PUBLIC SERVICE COMMISSION
THE INDEPENDENT ELECTORAL COMMISSION
THE TEACHING SERVICE COMMISSION
THE GOVERNMENT SECRETARY
THE OMBUDSMAN
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THE DIRECTOR OF PUBLIC PROSECUTIONS
BARUTI BA MOSHOESHOE
LEADERS OF POLITICAL PARTIES
PRINCIPAL SECRETARIES
THE REGISTRAR OF THE HIGH COURT & COURT OF APPEAL
THEIR WORSHIPS THE CHIEF MAGISTRATRES
HIS HONOUR THE PRESIDENT OF THE LABOUR COURT
THEIR HONOURS THEJUDICIAL COMMISSIONERS
DEPUTY AND ASSISTANT REGISTRARS
THEIR WORSHIPS THE LEARNED MAGISTRATES
CROWN COUNSEL
JUDGES’ CLERKS
THE ARMY COMMANDER
THE COMMISSIONERS OF POLICE, INTELLIGENCE & CORRECTIONAL SERVICES
THE VICE-CHANCELLOR OF THE NATIONAL UNIVERSITY OF LESOTHO
THE LAW SOCIETY
KING’S COUNSEL & SENIOR COUNSEL
MEMBERS OF THE BAR AND SIDE-BAR
MADAMS & GENTLEMEN ASSESSORS
INVITED GUESTS, LADIES & GENTLEMEN
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Please allow me on behalf of the entire Judiciary to bid you welcome to the
Official Opening Ceremony marking to-day the beginning of the judicial
calendar New Year 2012.
The past year has seen a variety of activities on the judicial landscape as a
whole.
OBITUARIES
Before dealing with those activities out of respect for the departed I should
indicate sadly that the Senior Resident Magistrate his Worship Mr.
Mokuining Francis Patsi for the Southern Region passed away on 12th April,
2011. Next was Mrs. ‘Makhotso Mokotleng a law officer attached to the
Attorney-General’s office who passed away in May 2011. Last but one was
Mr. Khauoe Thabang Khauoe a distinct member of the Legal Fraternity who
passed away on 22nd October, 2011. The very last is Advocate Motlatsi
Lesejane Molokoane who passed away on 15th January 2012. He has since
been laid to rest on 28th January, 2012. Respective memorial services were
held for the first three in this Court and fitting tributes given at their
individual funeral services. May we rise to observe a moment’s silence.
STATISTICSCOURT OF APPEAL
35 matters were enrolled consisting of 4 Criminal Appeals and 31 Civil
Appeals. Out of these 3 were settled 2 postponed, 2 withdrawn 27 disposed
of.
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For October session 29 were enrolled consisting of 2 criminal appeals and
27 civil appeals and 26 disposed of.
There were also some special sessions held in which 2 applications for stay
were dealt with in July. In December one matter was disposed of 2 in
January while one was withdrawn.
HIGH COURT
The High Court introduced the Individual Docket System just over three
years ago. During the year under review a total of 114 criminal cases were
filed. These consisted of 98 Criminal Trials, 10 Criminal Appeals and 6
Criminal Sentences. These are strictly cases which form DATA uploaded in
the Master Spreadsheet under the new case management for the High Court.
Apart from these were 759 Criminal Applications consisting mainly of Bail
Applications.
Out of 98 Criminal Trials filed, 26 were completed representing 27%. Out
of 759 Criminal Applications filed 738 were completed representing 97%
clearance rate. Out of 10 Criminal Appeals 5 were completed converting
into 50% clearance rate and out of 6 Criminal Sentences filed 4 were
disposed of representing 67% clearance rate.
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The Civil Registry opened 1591 files during the year under consideration.
These consist of 26 Civil Appeals of which 7 were completed, 9
Constitutional Cases of which 6 were completed, 675 Civil Trials 399 of
which were completed, 641 Civil Applications of which 306 were
completed, 50 Commercial Applications of which 32 were completed, 190
Commercial Trials of which 98 were completed. Of the total number of
1591 composed of the various categories above 845 inclusive of 174 treated
under the Dismissal Rule were completed representing 56% disposal rate.
All in all the number of files opened in both Civil and Criminal Registries
for the year 2011 was 2464 while the total number of cases in both these
categories is 1618 accounting for Clearance Rate of 66% in respect of the
normal disposal through courts which when added to disposal through
mediation (shortly to be referred to below) makes a total of 71% for the
entire year.
THE LABOUR APPEAL COURT
In 2011 27 appeals and reviews were scheduled for hearing in the Labour
Appeal Court 16 were finalized 11 remain pending.
LABOUR COURT
71 trials were scheduled for hearing in 2011. 42 were finalized the
remaining 29 were either part-heard or postponed. A total of 106 review
application were scheduled for hearing. 79 of them were finalized while 27
remain pending.
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ENFORCEMENT OF ARBITRAL AWARDSCourt dealt with a total of 239 enforcement applications. 197 were finalized
42 remain pending. 69 warrants of arrest were issued by the court. A total
of M145 514.48 was collected by way of judgments debts
INNOVATIVE MEANS EMPLOYED TO EASE CASE LOAD
Various methods were devised during the past year for purposes of easing
case load engendered by a phenomenal thrust occasioned by love on the part
of litigants to resolve their differences by resort to the courts system.
Mediation propagated by the Court Annexed Mediation practice has proved
a very useful tool to that end in the High Court while Small Claims
Procedure is geared to that end in the Maseru subordinate court as a pilot
project.
To achieve this end appropriate Rules were fashioned in May 2011 and put
into effect in August 2011 - a phenomenal speed betokening singularity of
purpose in pursuing this goal without let-up. Presently there are 9 Mediators
who received intensive and necessary training from our worthy
empowerment partners the ILI-ACLE.
Mediation is a method that aims at reducing backlog of cases in courts and
thereby enhancing easy access to justice for the financially straitened and the
long-pocketed alike. Mediation has since the short time of its existence
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manifested breathtaking qualities of being the fastest, cheapest and least
stressful way of resolving disputes redounding in peace of mind for both
litigants and courts.
A comparative analysis shows a disposal rate of 22% experienced in only
five months during which 30 cases were completed out of 136 registered: 13
settled, 3 partially settled and 11 failed. Taking into account that this is an
innovation still being continuously tinkered with by court users the success
achieved in the circumstances so far inspires confidence that with continued
education and understanding of this new concept by litigants and the legal
fraternity the disposal rate is on a high way to inevitable improvement on an
unmistakably high scale.
Statistical data shows that judges, legal practitioners and litigants have
started embracing the notion of mediation in earnest by the number of
referrals to mediation and seizure of the option of early settlement it offers.
So to their amazement parties begin to see sense in it.
OTHER DEVELOPMENTSThe past year was one of the busiest periods seen on the landscape of the
Administration of Justice. The year was characterized by comprehensive
and judicial reforms which were fundamentally intended to enhance and
improve administration of justice, access to justice by all classes with special
focus on the needy.
The reforms included the refurbishment of the old High Court building to
accommodate the new Commercial Court. A move which is indicative of
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the government’s quest to promote investor confidence in this Kingdom as a
mechanism to promote and enhance sustainable economic development.
Two Judges administer commercial litigation as a separate entity from the
mainstream activities undertaken by the upper tier of the judicature. This
move serves a dual purpose; namely cultivation of a conducive environment
for commerce and extension of a degree of certainty to the business
fraternity.
It is undeniable that institutional and physical infrastructures for commercial
dispute settlement are an engine room for the prevalence of the rule of law
as they provide a platform for rapid resolution of business disputes. The
Judiciary takes courage from the confession by stakeholders that the climate
of certainty has proved to be a sustainable mechanism for attracting foreign
direct investment which is a catalyst for economic growth.
The old High Court through massive refurbishment has been turned into a
modern Commercial Court fitted with state of the art equipment to facilitate
proper and effective management of commercial litigation. The Rules
governing the process also assure simplicity and transparency with an inbuilt
paramount goal of being responsive to the needs of litigants – a far cry from
past experience where the Court’s time would be held to ransom; questions
being raised whether Judge so and so has in fact properly been designated a
Commercial Court Judge!
As an added spice the new Commercial Court boasts a modern court-
annexed mediation facility albeit rather crammed and incapable of housing
the mediators if they are to sit individually to simultaneously discharge their
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ideal functions and reach their ideal goals. Well, the budget permitting we
shall get there. What’s on the scene is for a moment a start; but indeed a
good start.
CHILD JUSTICEFollowing an inquiry led by the Honourable Madam Justice Majara into the
Old Protection of Children’s Act the Ministry of Justice piloted in
Parliament what resulted in the Children’s Protection and Welfare Act 2011.
The Act represents the domestication of the Convention on the Rights of the
Child (CRC) and is intended to institutionalize the important United Nations
Principles on children’s rights. A random sampling of 3 out of 8 of them
shall give the flavour of what a child finding himself or herself in conflict
with law can expect:
First:-
Every child has the right to have his or her best interests given primary consideration
Next:-
The right to be treated with dignity and compassion
Finally:-
The right to be diverted from the conventional criminal justice system
The 2011 Act recognizes that children come into contact with the law from a
variety of perspectives. For instance as victims, as witnesses, as those
involved in family disputes, and as offenders although the term offender is
now anathema. The proper terminology being a round about phrase namely
those in conflict with the law – a terrible breach of economy in the use of
words!
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For all these categories the Act provides necessary assistance by way, for
example, of advocating for use of child friendly procedures when treating of
children in conflict with the law. It has provision for intervention through
court intermediaries that shall assist in obtaining information from children
during court processes. It stipulates that corporal punishment is outlawed
for children, saying nothing of capital punishment of course.
THE ADMINISTRATION OF THE JUDICIARY ACTIn May 2011 following the Latimer House Principles on accountability of
and the relationship between the three Branches of Government as agreed by
Law Ministers and endorsed by Commonwealth Heads of Government
Meeting held in Abuja Nigeria 2003, Lesotho passed the Administration of
the Judiciary Act, 2011 which conferred both administrative and financial
autonomy on the judiciary and established the Judicial Service. This
legislation gives practical effect to section 118(3) of the Constitution which
reads,
“The Government shall accord such assistance as the courts may require to enable them to protect their independence, dignity and effectiveness, subject to this Constitution and any other law.”
The Lesotho Judiciary is now a separate and independent organ of state.
The Act gives efficacy to the Judiciary. It endorses the principles of
separation of powers and the rule of law. It recognizes that the judiciary is
the champion of rights and a constitutional mediation apparatus in the
struggle involved in civil liberties and fair-play. The Administration is
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headquartered in the High Court with the Registrar holding a position
analogous to that of a Principal Secretary.
It is heartwarming to relate that in one of the interface meetings regularly
held between the Law Society and the P.S. Justice chaired by the Chief
Justice the P.S. said “Lesotho is ahead of other jurisdictions in terms of the
Millbrook Principles – The Harare Declaration. Lesotho has complied with
those instruments so much that our neighbor, RSA has requested to come
and study the whole process……” See Minutes of 23-11-2011 Item 6.
THE VICTIMS OF CRIME SUPPORT OFFICEIn 2011/12 the Ministry in an effort to give a user friendly image to justice
system enhanced the institutional infrastructure of victims of crime support
office by providing and deploying three categories of offices of lawyers
designated as:
(i) Principal Victims of Crime Advocacy
(ii) Senior Victims of Crime and Support Advocacy
and (iii) Victims of Crime Support Advocacy.
The victim of crime support office in the Magistrate Court is intended to
support victims by disseminating information to victims of crime regarding
the status of their cases. Such information is intended to minimize the
burden of criminal justice system on the victims. The office also provides
free counseling services to victims of trauma-carrying offences such as
murder, rape and other related offences.
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The introduction of victims of crime support office marks a significant
departure from offender oriented criminal justice system to a victims’ rights
oriented justice system. This move was a response to a national out-cry that
the Lesotho Criminal Justice system protects the rights of culprits as
opposed to those of victims of crime.
LAND COURT RULES & DISTRICT LAND COURT RULESThe Land Act 2010, enjoins the Chief Justice in consultation with the
Honourable Minister of Local Government and Chieftainship Affairs to
make rules that govern the Land Court and District Land Court. The former
exercises the jurisdiction of the High Court while the latter enjoys that of
Resident Magistrate.
In line with the spirit and letter of the Land Act 2010 the Chief Justice
established the Land Court and District Land Court Committee manned by
two Judges three Resident Magistrates, two members of the legal fraternity,
and one member of the Land Administration.
After several meetings including one jointly held with the Minister of Local
Government, intended to address inconsistencies prevalent in various pieces
of legislation governing land tenure in Lesotho, the final two sets of Rules
were signed. They are awaiting their turn in the Parliamentary Council’s
tray before the eventual launch hopefully before the end of this month. We
thank the Millennium Challenge Account – Lesotho which has graciously
extended its willingness to pick up the tab for the launch. The two
consultants namely Mrs. Tau-Thabane and Dr. Johannes Gebremedhin of
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Land Equity International deserve commendation for playing a crucial role
in attempting to bring about clarity in the otherwise morass of conflicting
laws supposedly meant to inspire harmony between the rules themselves and
between the laws which are at loggerheads with one another. These will
remain a challenge for Parliament to put right by way of effecting necessary
amendments.
As this form of land administration is a novel concept our development
partners have agreed to monitor and evaluate the progress being made during
six months time of its operation. In preparation for the smooth running of
the designated courts charged with the responsibility of hearing cases
brought under Land Court Act 2010 intense and specialized training was
undergone by Judges, Magistrates, Registrars, Clerks and relevant court
staff. Mr. Mojela Shale is the coordinator of this mammoth task.
LESOTHO LEGAL INFORMATION INSTITUTE (LESLII)Lesotho Legal Information Institute was launched on 24th September, 2011
by the Chief Justice at Lesotho Sun Hotel. This is an internet based law
reporting website created with the help of AfricanLII and Freedom House.
Honourable Majara is the chairperson of LesLII and oversees this project
assisted by the Coordinator Mr. ‘Mako to ensure its development.
CONTENT AUDIT AND QUALITY CONTROLIn order to facilitate the content upload and its audit the chairperson engaged
with Honourable Judges of the High Court to formulate judgment style
guides. There is already in existence a LesLII Content Statistical data to
provide a picture of the position of LesLII as at January 2012.
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ADVISORY BOARDIn order to reap maximum benefit from LesLII there has to be established an
Advisory Board before the end of February 2012. If this is done then we are
assured of receiving funds from the Freedom House for the start of LesLII’s
operations. This is one of the critical components of the project and
therefore is required as a matter of extreme urgency. The Advisory Board
should consist of stakeholders from Attorney-General’s Chambers,
Parliamentary Counsel drafting department, the law faculty and the
profession.
LESLII COORDINATOR’S TRAININGThe Coordinator went for training in South Africa and came back equipped
with a laptop and an external hard-drive and carry-on bag for the materials
for use in completing his duties. All this paid for by AfricanLII. We can’t
thank them enough in these lean times of financial hardships and economic
squeeze.
COLLECTION OF MATERIAL FROM ALL RELEVANT STAKEHOLDERS
The Coordinator has been able to collect material from the Courts and is still
in the process of uploading the available material on to the website.
Collection of legislation shall commence as soon as the Honourable Majara,
the Honourable Attorney-General and the Chief Justice have put their heads
together to determine the way forward.
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SAFLIIAll the information on SAFLII relating to Lesotho has been transferred to
LesLII website. Content of SAFLII relating to Lesotho should be wiped out
and be replaced by a link to LesLII so that the public can use LesLII
website.
HIGHLIGHTS OF MCA-LESOTHO FUNDED CLRP ACTIVITIES IN 2011
The year 2011 saw the arrival of the Honourable Mr. Justice James Ogoola
as Chief of Party of the ILI-ACLE Lesotho office to replace Dr. Sempasa
who vacated office due to illness. Needless to say Justice Ogoola is
Principal Judge (Emeritus) of Uganda and also sits as Judge of the
COMESA Court of Justice and Justice of Appeal at the East African Court
of Justice.
Thanks to the intense participation and consultation among stakeholders
under the expert guidance of Justice Ogoola, 2011 saw the publication and
launch of the Subordinate Court (Small Claims Procedure) Rules (Legal
Notice No.30 of 2011) and the High Court (Mediation) Rules (Legal Notice
No.61 of 2011).
ILI-ACLE produced pamphlets that simplified each of the Rules in ten easy
steps which were printed and distributed. These have proved useful tools in
this innovative way of doing things. More copies are being printed.
The launch took place in the form of a breakfast function attended by over
80 representatives from various sectors. Both the Chief Justice and the
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Chief Magistrate Central gave keynote speeches relating to the two
procedures as hosts. Other speakers were Her Excellency the US
Ambassador Michele Bond, Resident Country Director Dr. Gene
MacDonald of the MCC, the President of the Law Society, and ILI-ACLE
Chief of Party.
ILI-ACLE conducted refresher training on Mediation and the Small Claims
Procedure to relevant court staff prior to the implementation of the
respective Rules. In addition to trainings of 2010, 2011 saw intensive focus
on practical exercises offered to mediators on how to handle various
challenges. These trainings were led by two seasoned mediators; namely
Hon. Justice Ogoola and Hon. Justice Kiryabwire the head of the
Commercial Court of Uganda. The refresher on the Small Claims Procedure
was led by Hon. Justice Barbara Acka-Yensu, the head of the Commercial
Court of Ghana along with the Chief of Party.
At the start of the implementation of the programme on the two procedures
above an intensive public outreach was carried out by the Judiciary in
collaboration with ILI-ACLE and cooperation of the media in Lesotho.
From June 2011, for over ten weeks, a public outreach campaign was carried
out in the media, with the judiciary through the Registrar taking part in
weekly morning radio programmes to highlight different aspects of the two
new procedures and respond to questions from the public. The main
newspapers were not behindhand in the groundswell of enthusiasm to
disseminate information about this new found engine of change and
transformation on a scale unimaginable hitherto. The campaign went a long
way in informing the public about the benefits of these procedures. In
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respect of the Small Claims Procedure, 270 cases had been registered from
August start up till January 25th 2012. A total of 159 cases have been
completed accounting for an impressive 72.3% disposal rate.
The signing of a MOU between the High Court, the Central Bank of Lesotho
and ILI-ACLE for a three-year training programme for the Judiciary to
support and promote continuing judicial and legal education in the Judiciary,
with some activities also targeting legal practitioners is an important
milestone on the highway to progress. It bridges the way between reforms
under the civil legal reform project and the establishment of a judicial
studies institute. Training continued in earnest year under this undertaking –
so far roundtables have been organized for Judges, Magistrates and Court
Presidents as well as training for Judges’ Assistants, Registrars, Clerks,
Court Messengers, Sheriffs and interested members of the Law Society.
PRO DEO FEESPro Deo fees have been reviewed and enhanced taking into account the rate
of inflation and the number of years they were last adjusted. The exercise
was a result of collaboration between the office of the Director of Public
Prosecutions and the Law Society at meetings presided over by the Chief
Justice.
DEPUTY SHERIFFS AND MESSENGERS’ FEES
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The tariff of fees in respect of Deputy Sheriffs and Messengers was tabled
last year with a view to enhancing them taking into account the rate of
inflation and the length of the period of time they were last adjusted.
ADVISORY COMMITTEESIn line with the provisions of section 25(1) of the Administration of the
Judiciary Act 2011 that
(1) “The Chief Justice may constitute, on a permanent or temporary
basis, one or more advisory committees to advice the Chief Justice
on matters relating to the judiciary as the Chief Justice may, from
time to time, consider necessary…” the following committees were
formed during the course of last year:
1. The Bar Bench under Justice Peete
2. The Information Communication Technology under Justice
Majara
3. Restructuring Committee under the Registrar
4. Strategic Planning under Justice Hlajoane
5. Training Committee under Justice Nomngcongo
6. Rules Committee under Justice Peete
7. Particular Users Committee under Justice Chaka-Makhooane
8. Case Management Committee under Justice Mahase
9. Service & Execution of Civil Process under Justice Monapathi
alternating with Justice Guni
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Each of these committees consist of members drawn from Financial
Institutions, the Law Society, Insurance Companies, Academia, ordinary
members of the public and a variety of other stakeholder and court users.
The perceived purpose of this endeavour is for court users to:
o Serve as a link between them and the court as a means of improving
the service offered by the court, and working towards a people-
responsive court;
o Constitute an avenue for keeping the public informed of how justice is
being administered;
o Ensure that the court is aware of and caters for the needs of court
users – works towards improvement of the operations and
organization of the courts;
o Help foster a better understanding among the various court users on
the operations of the court;
o Identify challenges in the administration of justice and collaborate
towards solving them.
These committees are patterned after the Bar Bench one of whose vital
functions is provision of a direct link between the Bench and the Bar and as
such offers a professional platform for discussion and reflection on new and
existing court processes and procedures plus taking a look towards
improvements of the operations and organization of the courts.
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POSITIVE IMPACT FLOWING FROM THE TRIPARTITE INTERFACE BETWEEN THE GOVERNMENT, THE LEGAL
FRATERNITY AND THE JUDICIARYAt their regular meetings these three bodies consisting of the Principal
Secretary Justice, representation for the Law Society and the Chief Justice
came to a realization that the high production of law graduates from NUL
and elsewhere poses great and real challenge of unemployment. The
problem is compounded by economic lowdown. It is from this angle that
government, we have been informed is proded towards realizing that it has a
mandate to maintain its public policies.
It has been mooted that Government is at large to help through partnerships
with law firms including provision of sponsorships in respect of pro bono
services, pupilage programs, legal clinics all of which at the end would help
enhance legal quality services for the benefit of the nation at large.
The Principal Secretary found this idea attractive and worth translating into
reality for the benefit not only of lawyers but the community at large. This
is one of the initiatives emanating from this interface.
MOOT COURT FOR LAW STUDENTSThe most courts prove to be essential means of sharpening young minds on
issues revolving around law practice. They are intellectually challenging
and have attracted participation and competition from students from
renowned law schools and legal experts from around the globe. It is
encouraging to note that government stands poised to assist in promoting
efforts exerted towards realization of these goals as stated by the Principal
Secretary.
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CONTRIBUTION OF THE LEGAL FRATERNITY TO NATIONAL SERVICE
The Minister of Justice has welcomed the move to engage private legal
practitioners to assist in the prosecution and or presiding over cases in courts
and stands ready to introduce something called a “budget for development”
to this end. She has encouraged legal practitioners to apply for positions in
the international market such as the ICC, Human Rights in Geneva and
others. She assured of the government’s readiness to support such
applications because the UN only support government sanctioned
candidates. Demonstrably the interface holds a positive promise of better
things to come.
HONOUR AND DIGNITY OF KING’S COUNSEL AWARDSThe former Judge of the High Court who resumed practice as Advocate Mr.
Winston Churchill Matanzima Maqutu was awarded the honour and dignity
of King’s Counsel at the celebrations of His Majesty’s birthday last year. At
the same ceremony Advocate ‘Matsoana Fanana was awarded the same
honour and dignity. She made history as the first woman in this kingdom to
receive such an honour. We congratulate her as well as her companion in
honour Mr. Maqutu.
MOVEMENTS IN THE SUPERIOR COURTSAt one of its sittings the Judicial Service Commission recommended
appointment of the honourable Mr. Justice Noel Victor Hurt as a Court of
Appeal Judge. His Majesty duly appointed him. Later the retired Court of
Appeal Judge the Honourable Mr. Justice Melunsky was appointed Acting
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Court of Appeal Judge in place of the honourable Mr. Justice Smalberger
who could not make the impending session.
The Honourable Mr. Justice Gabriel Ntsabeng Mofolo, who reached his
retirement age of 75 three years ago had his period of service extended by a
further three years as Acting Judge, has finally finally retired from the Bench
as of 31st December 2011. He is bidden a deserving farewell after many
years of dedicated service crowned by the distinct honour of leaving the
Bench without owing delivery of any judgment. In his place the Honourable
Mr. Justice Joseph Moiloa shall discharge the duties of Acting Judge. He
has been doing so on a semi-migratory basis previously. But this time he
has had to give up luxurious legal practice in favour of excruciating service
to the nation on higher Bench.
The Honourable Mr. Justice John Lyons of the Commercial Branch of the
High Court has had his term extended for a further year effective from last
month by agreement between him, the Commonwealth Secretariat and the
Government of Lesotho. While such an extension would imply that the
Commonwealth and Lesotho have to share the costs of his accommodation,
salary etc on a 50% basis per side, this requirement has been graciously
waived by the Commonwealth which shall continue picking up the entire tab
as it did during the past two years. It is therefore most disconcerting that
some news media fed with misbegotten information garnered from a source
of nondescript provenance should seek to malign the screening process that
the Commonwealth employed to justify its recommendation for his
candidacy and moral rectitude which were considered as factors making him
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suitable to render service on Lesotho’s higher Bench. Losing in the process
of dabbling in this nauseating muck every vestige of propriety and decency.
MAGISTRATES’ COURTThe central region’s magistracy produced a report which to a large measure
replicates the situation obtaining in the High Court in aspects relating to
strategies employed to promote efficiency and effectiveness. A data base
has been established there. This has enabled the managers to characterize
cases into active and inactive ones in the Roll Office. An Individual Docket
System has been introduced and the Chief Magistrate Central has expressed
satisfaction with the results in that this novel approach enables Magistrates
to focus their attention on the contents of the record in good time before the
case is due to be heard yet meantime because he has explored prospects of
the case being diverted to one or other of the Alternative Dispute Resolution
Avenues for settlement he may summon parties to a pre-trial conference to
secure just that end thus ensuring a simple inexpensive realization of justice.
PERSISTING DISATISFACTION WITH SERVICE OF PROCESS IN ALL COURTS
Progress in the hearing of active and inactive cases at Matala Local Court
sitting at the Maseru Magistrate Court centre is significantly frustrated by
general collapse of service system according to the Chief Magistrate
Central’s observation. Police, it is said advance a number of reasons such as
their limited strength, lack of logistical support, absence of witnesses’
allowances to sustain their presence throughout trials. The Chief Magistrate
is of the view that last year was the worst for inefficiency associated with
service of process in his court and those subordinate to it.
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It will be remembered that exactly a year ago regarding an unsatisfactory
state of affairs about service of criminal process in the High Court I said:
“Service of Criminal process is one of the prime duties of police.
However during the (then) period under review a sudden development
occurred resulting in the stalling of criminal trials both in the
subordinate courts and the High Court.
It appears that with good intentions but without consultation with my
office an enthusiastic unit for tackling back-log by being entrusted
with service of criminal process for handsome pay was formed. It
went about its task on all cylinders but in no time went out of steam.
The reasons was that money had got depleted and no process was
served, no witnesses were summoned by way of subpoena to come to
Court (despite issuance of process). Meanwhile dates had been set
aside. But cases couldn’t get off the ground because of absence of
witnesses. My Stakeholders Committee assigned to deal with this
problem received an undertaking from the police that they would
resume serving process in the normal manner pre-dating the service
by the reward based unit. Some measure of success was achieved but
a lot of precious time had been wasted.”
Having seen that for the period under instant review the improvement on the
former is scarcely meaningful, in that it is far below the pre-reward based
normal police service, I summoned the officers in charge and confronted
them with this situation. They frankly confessed that the harm dispensed by
service for reward had affected the morale of the police entrusted with this
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duty. Hence although progress is expected to prevail following closer
monitoring by Police Chiefs the situation was blighted by residual
indignation and resentment following the disappearance of the reward that
was doomed from the start to be unsustainable. It is to be hoped that
significant change will be realized this year now that the root cause of this
chronic disease has been diagnosed with a view to instant cure.
Indeed the office of the DPP has identified as challenges affecting early
completion of cases the following factors
1. Inavailability of witnesses
2. Failure for witnesses’ allowances to reach dispensing centres
3. Routine postponement of cases for a variety of reasons
4. Disappearance of records including tape recordings
5. Lack of tools of trade
In tandem with other relevant offices a commitment following self-
introspection has been made to address the above challenges.
Yet a good many of these and others are a result of continuing budgetary
constraints which are becoming worse and worse from year to year.
A strident cry for supply of the library with necessary material year after
year has not been heeded.
Added to our budgetary owes is the fact that in awarding funds for use in the
Judiciary no account seems to have been taken of the fact that the office of
the Master of the High Court has been transferred from the Attorney-
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General’s Chambers to the Judiciary in terms of the recently passed
Administration of the Judiciary Act 2011.
We have been warned that the state of finances is such that only salaries will
be possible to meet but even then M63 Million instead of M67 Million
required for this commitment. No funding is available for other services.
Although transformation has brought about a lot of excitement and optimism
for the future in respect of improved and enhanced service delivery on the
one hand, the demon of ever straitened tight budget is a source of constant
fear that our goals may transform into sheer Chimera after all. Saying this I
am not oblivious of the manifestation of this scary phenomenon resulting in
instances where last year it was not unheard of for a judge to supply fuel at
his expense in order to enable the government vehicle issued to him to get
him to work. The same problem persists in respect of electricity costs and
etc. Why? Because service providers in all categories insists on their right
to withhold service until outstanding debts have been paid.
DPP’S EFFORTS – SOURCE OF PROMISEThe efforts of Director of Public Prosecutions are to be commenced in that
after previous attempts to seek means of reducing backlog failed, his officers
sat down and drew up a two year work plan in terms of which reduction of
backlog was targeted in respect of serious offences such as Culpable
Homicide, sexual offences, fraud, car theft cases and cases involving civil
servants.
Under this plan the DPP together with the Ministries of Home Affairs and of
Justice have met with the stakeholders in order to come up with a strategy
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that will be beneficial to all stake-holders. This is in a form of a pilot project
for now.
So far meetings have been with police in TY, Leribe, Maseru and Mafeteng,
where discussions were held focusing on factors impeding smooth service of
Court Process and devising ways by which to track down and monitor the
movement of Court Process to ensure effective service.
This project was piloted by holding the 1st session in Hlotse, Leribe from 21st
September to 31st October, 2011.
In that session 37 cases were set down, 27 were completed. Only 7 had a
problem of service of process. In the instant fiscal year starting today
similar sessions shall be had in Maseru in the first quarter. For the
remaining 3/4s sessions shall be held in the remaining centres.
In the end the aim is to hone and perfect these work plans such that
eventually a systematic manner of disposal of cases shall be in place as
opposed to the haphazard one recently experienced and in part referred to
earlier.
EUROPEAN UNIONThe financing agreement has been signed as stated last year. Subsequent to
that it is worth mentioning that evaluations for consultants have been made.
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However, the contract is yet to be signed if the consultants are to start their
operations.
Meantime the Steering Committee was identified and is ready to start
conducting business as soon as the contract has been signed.
LAW REPORTINGThe Law Reporting Bill has regrettably been sidelined and thus not seen the
light of day for upwards of at least five years back. I have meantime
established that our friends in the Irish Embassy still stand by the word of
their predecessors to lend a helping hand towards ensuring that once
legislated this important Act would enable them to sponsor if a properly
structured organ consisting of the Law Reporting Council and Board in their
relevant categories is established.
ACKNOWLEDGEMENTSFinally the Central Bank our faithful partner in effecting various forms of
transformation in the Judiciary has even this time round not been found
wanting. It has kindly accepted our request to offer a venue to host a gala
dinner for the launch of the Bar Bench Committee. The Bank has offered
the Lehakoe Multi-Purpose Sports Hall gratis for the purpose. We say
thanks to the Central Bank.
We thank the ILI – ACLE, the Chief of Party, the Deputy Chief of Party, the
Principal Judge of Uganda and the Head of the Commercial Court of
Uganda for running useful and successful courses in the training of Judges,
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Registrars, Magistrates, Judges’ Clerks, Clerks of Court and various
categories of Members of staff in the Judiciary including Court Presidents of
Local and Central Court and Legal Practitioners in practice. As late as
yesterday I was busy signing Certificates of successful attendance of courses
in Mediation, Complex Commercial Cases and Judgment Writing by the
Honourable Mr. Justice Bamwine and the Honourable Mr. Justice
Kiryabwire both from Uganda.
We thank the public servants for their contribution to the smooth running of
this event.
Gratitude goes to the Commissioner of Correctional Service for the supply
of man-power needed for cleaning up the premises as well as fetching and
carrying stuff.
We thank the Commissioner of Police for providing security.
We thank the Commander for an excellent parade conducted by his men.
The Parade Commander Capt. Rankhone.
The Band Master Lt. Lelosa for giving us music this morning.
I thank you all who have been generous with your time for work and or
leisure just to be sure that you are present at the celebration of Judicial New
