HIGH Court Judge Polo Banyane expressed annoyance this week over the absence of lawyers in a recent land ownership dispute case.
news
May 10, 2024
RELEBOHILE TSOAMOTSE
7 min read
LAWYER GOES AWOL
Justice Polo Banyane
Story highlights
Adv. Kao misses court to collect funeral pots
Fuming judge says the lawyer’s conduct was unacceptable and unfair to the court
Both parties’ lawyers failed to appear when the case was called on Tuesday this week.
Advocate Letuka Molati, representing the respondents, sent Adv. P. Mokobocho in his stead.
Mokobocho reported that Adv. Mkhantji Kao, representing the complainants, was attending a funeral and was therefore unable to attend.
Mokobocho informed the court that Kao was required to travel to Roma to collect items needed for the funeral, requesting a postponement of the case.
However, this excuse did not sit well with Justice Banyane. “Why do we have lawyers missing court dates to collect pots? Couldn’t someone else have done this?” she asked.
A visibly irritated Judge Banyane said she was aware of the funeral in question and that Kao’s involvement was not so crucial that he needed to miss a court date to collect pots.
“We are operating under very difficult circumstances, which you lawyers are well aware of,” she said. “To have a court date postponed because someone went to collect pots is simply unacceptable. We are already short on available dates, and we managed to squeeze this matter in only to have lawyers fail to appear.”
Justice Banyane highlighted the unfair position the courts are placed in, where they face the blame for case delays caused by decisions made by lawyers to postpone scheduled trial dates.
“We could have allocated this day to a trial that was ready to proceed, with lawyers prepared to present their arguments. Instead, it has been wasted,” she lamented.
“Lawyers are often the first to criticise on radio and in newspapers when cases are prolonged, yet they contribute to these delays. Do they think that we, as judges, have nowhere else to be? That is extremely unfair.”
She noted that she had received complaints from the parties involved, accusing her of delaying the proceedings by not scheduling hearing dates.
“It is unfortunate that the lawyers feigned ignorance when I questioned them about the letter, but that letter indeed exists and remains in my file, having been received from the registrar’s office,” she said.
The judge explained that her calendar was already full, leaving her without a choice but to postpone the case to November 4, 2024.
The case involves former partners who are wrangling over ownership of a site previously used for an orphanage they co-managed.
They are both seeking legal possession of the property.
Central to the litigation are three non-governmental organisations: Lesotho Durham Link, God’s Love Centre, and Thato Child and Youth Centre.
In 2006, Retšelisitsoe Moleqa (58) and his then-girlfriend Neo Motantši, along with other family members, were registered at Thato Child and Youth Centre as committee members.
Evidence presented in court has illustrated how the breakdown of the relationship between Moleqa and Motantši led to the latter establishing God’s Love Centre and subsequently occupying the site previously managed by Thato Child and Youth Centre.
Moleqa testified that he and Motantši co-founded Thato Child and Youth Centre.
Despite being a member, Motantši later started God’s Love Centre, which is now located at the disputed site, allegedly pushing Moleqa out through what is said to be manipulation of documentation.
He explained that Motantši, once appointed as chairperson, took charge of managing the orphanage, including stakeholder relations.
This responsibility included communicating with donors, a role that eventually contributed to the deterioration of their relationship.
Months later, Moleqa discovered an alleged transfer of Thato Child and Youth Centre’s ownership to Lesotho Durham Link, a transaction he claims he was made a part of without his consent.
He is contesting the legitimacy of this sale in court and has also initiated a criminal investigation with the police.
In 2017, Lesotho Durham Link, Lesotho Durham Link Trust, and God’s Love Centre filed a lawsuit against Moleqa.
They requested the court mandate him to agree to a division of the contested land into clearly demarcated plots, according to the property sale agreement.
Furthermore, these organisations have requested that the court pursue legal action against Moleqa in his personal capacity for actions conducted under the banner of Thato Child and Youth Centre.
Additionally, they seek to prevent the Lesotho Land and Administration Authority (LAA) from processing any consent applications that would facilitate the transfer of the land portion where God’s Love Centre is located to any other party.
In recent years, Lesotho's justice system has struggled with a significant backlog of cases accumulating in both lower and higher courts.
During the tenure of Acting Chief Justice ’Maseforo Mahase, an initiative was launched to address these delays, leading to magistrate courts across the nation announcing plans to dismiss over 3,000 pending cases.
These cases include serious offences such as murder and sexual crimes, with a notable concentration in the Maseru district, where 2,413 cases have been recorded.
An additional 1,073 cases are distributed among the northern region districts: Mokhotlong with 195 cases, Berea with 131, Botha-Bothe with 151, and Leribe with 593. No statistics were available for the southern region at the time.
The Chief Magistrate of the Central Region, ’Matankiso Nthunya, stated in a press briefing around 2020 that magistrate courts had long been unfairly blamed for the backlog of pending cases.
She clarified that these delays often stemmed from incomplete prosecutions and ongoing investigations, limiting the courts to only hearing and sentencing fully prepared cases.
Nthunya highlighted that the delays in justice should not be attributed to the courts but rather to pending directives from the Directorate on Public Prosecution (DPP) and unresolved investigations.
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Under the guidance of then-Acting Chief Justice Mahase, the magistrate courts decided to dismiss cases that had been under investigation for more than eight years and to release inmates who had been held for an unreasonably long period.
“If we have about 120 murder cases, only 30 would be available for remands, while 90 would be remanded in the absence of the accused. Murder cases are just gathering dust in our courts. We should not be blamed because ours is not to investigate crimes but to preside over them once they are completed,” she added.
Chief Magistrate Nthunya pointed out that the delays in court proceedings contravened the Speedy Court Trials Act No. 9 of 2002.
According to this legislation, an individual should not be held in custody for more than 60 days without a trial unless there are compelling reasons to extend this period, which must be documented in writing.
“The law binds us to remand cases for only one month, but due to poor services, we end up compromising ourselves and giving them three to four months, even a year at times,” she said at the time.
Adv. Kao's absence has delayed this particular case, pushing its hearing six months further to November 2024. At that time, it was suggested that the courts would no longer accept cases pending investigations or awaiting directives, urging responsible parties to expedite their tasks.
Chief Magistrate of the North Region, ’Makampong Mokhoro, indicated that while exceptional cases would still be processed, the courts would adhere to the timelines specified in the Speedy Court Trials Act.
She noted that ideally, a case should take about 11 months to complete, but due to consistently full court diaries, cases often extend beyond this period.
Mokhoro added that although numerous cases were being dismissed, there were no restrictions preventing investigating officers from reinstating these cases once investigations were completed.
Justice ’Maseforo Mahase was succeeded by Justice Sakoane Sakoane in November 2020 as the head of Lesotho’s judicial system.
Under Chief Justice Sakoane, the judicial system has achieved notable improvements in service delivery.
In his opening remarks at the High Court last year, the Chief Justice announced that 11 judges had been appointed over the past two years and at least 15 other positions had been filled.
However, he noted that the courts still required additional judges due to the volume of pending cases, including constitutional matters that necessitate the involvement of three judges.
Under his leadership, the judiciary has begun decentralising its services nationwide. It inaugurated the High Court Northern Division in Tšífa-li-Mali, Leribe, appointing three judges to oversee cases in Leribe, Butha-Buthe, and Mokhotlong.
Plans are also underway to establish another division to serve Mafeteng, Mohale’s Hoek, Quthing, and Qacha’s Nek. This comes after the Commercial Court experienced the loss of two judges, prompting the assignment of three new judges to that bench.
Additionally, two magistrates were deployed to Ha Mohale as an extension of the Maseru Magistrate Court to serve all rural areas in the Maseru district and the adjacent mountainous regions.
The Judicial Commissioners Court, operating from Maseru, has been expanding its regional presence by conducting sessions in various districts, and a Judicial Commissioner for the northern region was appointed.
Chief Justice Sakoane also highlighted ongoing efforts to upgrade children’s courts to meet international child-friendly standards, with projects initiated in the districts of Maseru, Berea, Leribe, and Mohale’s Hoek.
Despite these efforts, including swearing in new judges and recalling retired ones, the justice delivery system remains as congested as it was five years ago.
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