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May
26
2022

Lesotho’s CJ fights back after apex court’s critical judgment

By Carmel Rickard

The Chief Justice of Lesotho, Sakoane Sakoane, has reacted sharply to a judgment by the country’s appeal court that found he ought to have recused himself from presiding in a major treason and murder trial. The court found that the prosecution’s claim to have a reasonable apprehension of bias by the CJ was well founded, and ordered that another judge take over the trial. But in reaction, the CJ has questioned whether ‘foreign’ judges ought any longer to preside over cases heard in Lesotho.

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May
19
2022

Lesotho CJ ‘wrong’ to punish lead counsel in high profile murder, treason case – appeal court

By Carmel Rickard

A new decision from Lesotho’s highest court has made some uncomfortable findings about the country’s Chief Justice, Sakoane Sakoane. Three judges from outside Lesotho, brought in to hear the matter to ensure there could be no allegations of partiality given those involved, found that the Director of Public Prosecutions was not unreasonable in her apprehension of bias on the part of the CJ.

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A fractious dispute between Lesotho’s Chief Justice and the Director of Public Prosecutions has been decided by the Court of Appeal: three foreign appeal judges found the CJ had shown a pattern of conduct from which it was reasonable for the DPP to conclude that the CJ was possibly biased against the DPP and its lead counsel, controversial SA advocate Shaun Abrahams.

May
19
2022

Judges recall when their lives were threatened during contentious legal challenge in Malawi

By Carmel Rickard

Two participants at a human rights training course for judges from 11 African countries, held in Cape Town mid-May, have first-hand experience of what making a bold human rights decision may sometimes demand. Judges Michael Tembo and Redson Kapindu were both on the bench, part of a five-judge panel in what they say was, without doubt, the most significant case in Malawi’s history.

Judges Redson Kapindu (who helped present the human rights training course) and Mike Tembo, are both members of Malawi’s high court, and were part of the five-member bench that heard a most significant case.

Following presidential elections in May 2019, they had to decide a challenge to the poll’s validity, litigation that raised the political temperature in Malawi to boiling point.

May
05
2022

Another ‘No’ for Eswatini’s LGBTI community

By Carmel Rickard

A new judgment from Eswatini’s high court effectively supports a decision by the registrar of companies who refused to register an association called Eswatini Sexual and Gender Minorities. Two judges of the three-court bench held that the registrar’s decision had been properly made. In a dissenting decision, the third judge approached the question very differently.

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This case concerns Eswatini’s LGBTI community. Eagerly anticipated by both sides of the argument, it must have been something of a disappointment to all involved that judgment was delayed for so long.

Right at the start of the decision, however, there’s an apology seeking to explain why the matter, heard 18 months ago, was not handed down earlier.

May
05
2022

State of the judiciary: new report on Malawi, Namibia, South Africa

By Carmel Rickard

For many judges it will come as a relief to hear some good news for once, in the form of largely positive public perception about the judiciary and its role in society. The good news emerges from a just-published report on the state of the judiciary in Malawi, Namibia and South Africa. Every member of the bench in those three countries will be only too well aware of the short-comings of their own judicial system, exacerbated by the restrictions imposed by the Covid pandemic, among a number of other problems.

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One of the key issues on the minds of everyone concerned about justice in the three countries examined by the new report, Malawi, Namibia and South Africa, is the extent of corruption, perceived or real, in the legal system, the courts and the judiciary.

Apr
28
2022

Key rulings have major implications for lawyers

By Carmel Rickard

Two recent decisions from the courts in Zambia have serious implications for lawyers. In one, the appeal court rescued legal practitioners from a decision of the high court that found lawyers in private practice weren’t allowed to accept full-time employment. In the other, the appeal court had strong words for lawyers representing clients on trial for criminal offences: they should be sure that fee arrangements were recorded in writing and that there was genuine negotiation between the two sides over what would be charged.

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Read appeal court decision

It was a case with serious implications for lawyers in private practice, after the high court unexpectedly found that legal practitioners weren’t allowed to accept full-time employment with a non-legal entity.

Apr
28
2022

Judge orders at least two years of state-funded therapy for 10-year-old raped by her uncle

By Carmel Rickard

A South African judge has ordered that a child, raped by a close family member, must be provided with state-funded counselling for at least two years to help her recover from the trauma of the sexual attacks. Further sessions may be added at the end of the two years, depending on whether the child needs more help at that stage. Despite an epidemic of child and adult rape in South Africa, such an order, made in this case as part of judgment on sentence, is extremely rare.  

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The rape of children is an enormous problem in a number of African countries, with South Africa being one of the hot spots. But this week, a court in SA’s Eastern Cape province delivered a decision in such a case that stands out for several reasons.

Apr
28
2022

International Child Abduction

By Fasken

Facts of the matter

E was born on 25 August 2014. On 5 October 2018, in contravention of two orders by the courts of Luxembourg, the mother abducted E from Luxembourg, which was her habitual residence, and settled in South Africa.[1]

Apr
21
2022

One case, two high court judgments: Namibian supreme court concern about ‘grave irregularity’

By Carmel Rickard

The supreme court in Namibia was busy preparing a written judgment in a rape case appeal when it discovered something was very wrong. Unknown to it at the time the case was argued, there had actually been two high court decisions on the same matter. The first of the two had refused leave to appeal as part of an unsuccessful application for condonation of late filing, with the court holding there were no prospects of success on appeal. Three months later, the same applicant had brought another application, for appeal.

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There’s a double whammy involved in this story. First, Namibia’s supreme court found serious irregularities by the high court and lawyers involved in a well-publicised rape case. Second, Namibia’s ruling Swapo party has appointed the man at the centre of the legal dispute, Vincent Likoro, a former advisor to the minister of land and resettlement, as a member of the party’s high-level think tank – even though he has been convicted of rape and sentenced to 10 years in jail.

Apr
21
2022

African Commission finds judicial dismissal by Eswatini violated African Charter on Human and Peoples' Rights

By Carmel Rickard

Since 2011, Thomas Masuku has been in a kind of judicial limbo following a decision by the authorities in Eswatini to remove him from office as a judge. He was, however, welcomed with open arms in Namibia, where he serves on the high court bench. Now, in an extraordinary development, the African Commission on Human and Peoples’ Rights has found that his removal from office by Eswatini violated key articles of the African Charter.

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Any reader of the decision by the African Commission on Human and Peoples’ Rights on the complaint by jurist Thomas Masuku is taken back in time to the era when controversial, disgraced judge, Michael Ramodibedi, was Chief Justice in Eswatini.

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