Standing ovation after acting Chief Justice tells of her judiciary's plight

14 June 2019 · Carmel Rickard

One of the most crucial sessions of the conference called by the International Association of Judges' Africa region dealt with reports by the countries represented at the event. This provided an opportunity for all delegates, and top officials of the International Association of Judges who attended the conference, to hear the particular challenges faced by judiciary and the justice system of each country. Several outlined serious difficulties, but the plight of the judiciary in Lesotho touched delegates particularly deeply, and had people talking right to the end of the five-day gathering.

The acting Chief Justice of Lesotho, Maseforo Mahase, was given a standing ovation after she presented a report to the Africa region of the International Association of Judges, meeting in Cape Town in early June 2019, on the difficulties experienced by her colleagues in that country.

The media was barred from the entire country report session, but even from beyond the closed doors there was no mistaking the applause – enthusiastic and sympathetic – that her presentation won from the audience of judicial officers from across Africa. Her report was still being discussed by participants even at the end of the conference.

Though delegates from many countries spoke of problems they experienced, conditions for judicial officers in Lesotho emerged as the worst of all. Inadequate salaries and inadequate resourcing of the entire judiciary topped the list of problems, along with the ambiguous position of magistrates who were sometimes treated as members of an independent judiciary and sometimes as civil servants, depending on which suited government at the time. Two delegates from Lesotho travelled to Cape Town by bus, for example, as there were no funds for flights.

Asked later about the most significant moments of the conference, the president of the International Association of Judges, Judge Tony Pagone of Australia, said, “The report that we heard from Lesotho was very moving. The CJ talked about sending (judicial officers) into parts of the country where they were exposed to real physical risk.” Some had been killed by litigants. The government said it did not have the resources to provide for their safety and yet it was essential to do so. “Judges do their work for the benefit of others and of the country, not for themselves.”

It was a very sad story, he said. “Nothing harms a legal system more than to have a judiciary that is so vulnerable.” When judges were vulnerable this undermined confidence and independence. He said he was struck by the determination of the delegation from Lesotho, some of whom had come all the way by bus to participate.

In a later interview, two magistrates from Lesotho explained the background to the recent six-week strike by all the country’s magistrates, mentioned by the acting Chief Justice during her report.

Peete Molapo, president of the Judicial Officers Association of Lesotho (JOALE) and Masoopha Kao, secretary of the organization, said their members felt “hopeless” because the promises so often made by government had not materialized.

It is not legal for magistrates in Lesotho to strike; however, during the six weeks of their protest, members of JOALE reported for work every day but then did not carry out their duties.

Their members called off the strike after the acting Chief Justice organized a meeting with the Minister of Justice. “But ultimately the decision whether to help us lies with those who have the purse, and she (the CJ) does not.” They said a series of meetings over the last 10 years had only resulted in promises that were never met.

To illustrate the problem of under-resourcing, they quoted the R97m budget allocated for justice in the current financial year. More than R90m was for salaries and related benefits. A further R3m went on renting premises for the Master of the High Court. The remaining R4m had to be divided between the court of appeal, the high court and the various levels of magistrates courts.

“Some remoter courts are getting just R500 per quarter for maintenance. That’s the cost of five bags of cement and then the money is all used up.” Many of these remote courts are housed in dilapidated buildings that urgently need to be fixed but the funds allocated to them was completely inadequate for the required repairs.

The JOALE officials said the courts had no stationery or ink and as a result could no longer even make copies of summonses. “We are not even able to print judgments.”

Justice Mahase who, as acting CJ, has been assisting the magistrates to resolve their difficulties, said she was expecting the relevant minister to come and explain to her and to the magistrates, what will be done about the allowances that had been promised but that had never materialised.

“If I were the government,” she said, “I would rush on this issue because I would fear that if they strike again they will not end it in a hurry.”

Explaining the impact of the budget allocation, she said that a recent tornado had blown the entire roof off a local court, but that there was no money to fix it. At another local court, in the rural area of Phamong, the principle judicial officer had been given a dilapidated house to live in, but the house had burnt down and she herself had also been badly burned and needed regular medical checks. “Now we have to house her in a horse stable, converted into a room for her. That is all there is.”

“You cannot maintain the high court if you run out of essential things like paper for copying documents (and) you cannot pay a R4m debt to a service supplier.”

Justice Mahase said that in serious cases such as murder, the presiding judge should sit with assessors. “But we (judges) have been contemplating – maybe we should (suggest) that the law be amended so we do not have to sit with assessors anymore because we just don’t have any money to pay them for their services.”

She contrasted the situation of judicial officers with that of the army. “The army budget is so much higher than for any other sector. Each army officer, for example, has several brand-new cars”, while judicial officers who needed to travel to remote areas to hear cases struggled without suitable vehicles.

In her view, “they want to tame us by starving us of money and resources.” Every time there was an election, politicians told voters that if they were elected, they would solve the problems of the courts – that there were too few in the remote areas, for example. But after the election “nothing happens”. “We are like a campaign platform for successive governments. There is no political will from government to assist the judiciary, but they do not tell us the reasons.”

Justice Mahase, who was formerly a magistrate before being appointed a judge, added, “Things have always been difficult. But I am not going to give up.”

Carmel Rickard

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