HIGH COURT OF LESOTHO
RESIDENT MAGISTRATE-BUTHA-BUTHE 1ST RESPONDENT
TAE 2nd RESPONDENT
FOR THE RULING
30th October 2006, Mr. Ratau appeared for the applicant and Mr.
Nthontho appeared for 2nd respondent. After perusing the
hearing Mr. Ratau, I made the following ruling:-
is warned that Mr. Teele AJ cannot be an acting judge, practice as an
advocate and sign
signed Notices of Motion on his behalf. Mr. Teele AJ cannot run an
office of an advocate while he is acting judge.
THE REASONS FOR THIS RULING.
24th August 2006 in case of Wuyue Jiao v Motebang & Another
CIV/APN/319/2006 I had told Mr. Ratau in open court to tell
AJ that he cannot be an acting judge and continue to practice in the
Courts of Lesotho of which he is an acting judge.
Mr. Teele AJ got
the message - and said that I should have first warned him verbally.
I apologized for not warning him before I
said in open court that he
cannot chase with the hounds and run with the hares. I have since
written to him reiterating that he
cannot, while he is an acting
judge practice in any court of Lesotho.
mistake in his letter of appointment was made by the Judicial Service
Commission. The gazette in terms of which became acting
judge did not
specify that his acting appointment was for three months only - which
is the period Mr. Teele AJ had initially offered
his services as
acting judge. He was appointed acting judge without specifying the
length of his appointment. The effect of this
is that as long as he
is acting judge he has to be paid by government and not practice as
an advocate. The reason being that he
can do any other job and earn
money to make a living - except appear and practice in the courts, he
is a judge of.
three months he had offered, Mr. Teele AJ returned to his practice as
he should have been entitled to do. Judges of the
High Court and
magistrates were not aware when he returned to
as an advocate that he was still an acting judge.
Judicial Service Commission should have been told by the Chief
Justice, that Mr. Teele AJ had offered his services for a specific
period - so that his appointment could be for that specific period -
which would be accordingly reflected in the government gazette.
also transpires (as a matter of law) that the Chief Justice and the
President of the Court of Appeal were not aware that,
Mr. Teele AJ
could not practice as an acting judge and also practice in the Courts
of Lesotho - of which he is a judge - while
he was acting judge.
Consequently they have been calling him to serve in the High Court
and in the Court of Appeal (in
eighteen months) on the basis of that initial appointment as an
acting judge for an unspecified period.
past people who do not practice in the courts of Lesotho like Isaacs
SC, W. Schreiner SC and the former Chief Justice Mr.
been appointed acting judges for unspecified periods -without
problems. They earned their living in South Africa
- therefore they
did not have to practice in the Courts of Lesotho after completing
the cases, they had been appointed acting judges
to deal with. Mr.
Teele AJ unfortunately has to practice law to earn a living during
those periods he is not serving as a judge.
Consequently the Chief
Justice as Chairman of Judicial Service Commission by mistake did not
properly guide the Judicial Service
Commission as to
nature of the acting appointment they should make.
local person to be appointed acting judge was Mr. Semapo Peete - his
appointment was for three months at the end of which
he resumed his
practice as Crown Counsel. The fact that his appointment had been
challenged does not alter the fact that he had
been appointed for a
was faced with this problem after discovering Mr. Teele AJ was not
being re-appointed by the Judicial Service Commission
whenever he was
called to serve as judge for specific periods, I phoned the President
of the Transvaal Provincial Division Mr.
Justice Ngoepe. He informed
me that, at the moment, there are 21 senior advocates serving as
all been appointed to serve for specific periods. At the end of their
periods of appointments they resume their law practices
office of acting judge in the High Court governed by Section 3(4) and
(5) of the High Court Act of 1978. Although an acting
judge may in
terms of Section 14(2) still receive an emoluments elsewhere or from
any job, that does not mean he can appear before
the courts and
practice law in the courts while he is acting judge. This is what
happens to acting judges, the world over.
problem is that Mr. Teele AJ has an appointment with no specified
period - when he had offered his services for a specified
and the Judicial Commission erred when they appointed Mr. Teele AJ
for an indefinite period, thereby barring him from appearing
courts of Lesotho whose judge he remains until his acting appointment
the more than 25 advocates and attorneys, who have practiced law for
more than 5 years can be appointed acting judges from
time to time
when the state of High Court business so requires. Section 3(4) of
the High Court Act of 1978. Section 3(5) states:-
"A person appointed to act as judge shall .., continue to act
for the period of his appointment, or if no such period is specified,
until his appointment is revoked..."
who are being tried for specific vacant positions of judge - do not
usually have their period of appointment specified period
they are on probation for specific posts in the High Court. However,
practicing advocates who are appointed from time
to time to help
reduce the backlog in courts, have to be appointed for specific
periods - otherwise they have to be paid by the
State for as long as
they are acting judges - because they cannot earn a living as legal
the reasons for holding that Teele AJ cannot practice law as an
advocate while he remains acting judge of the High Court
Courts of Lesotho.
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