Maseru, Mar. 08 — The High Court through Justice Maliepollo Makhetha has on Wednesday heard arguments in an application for her recusal in a case involving two applications challenging early termination of employment contracts for the Principal Secretaries (PSs) by the Government of Lesotho.
The application came after the judge gave a ruling acknowledging that the High Court has jurisdiction to entertain the matter. She was then accused by the respondents through Adv. Mateboho Tohlang-Phafane of having formed a prima facie view of the interim reliefs sought in the matter.
She argued that the judge has on numerous occasions said, ‘the applicants cannot wait any longer to suffer irreparable harm’. She added that the judge also said, ‘the respondents have violated applicants’ rights’ further adding that ‘it is not fair for the applicants to wait for the harm to continue’.
During his arguments in the recusal application today, legal representative for the government Advocate Darryl Cooke argued that there is a likelihood that they will not have a fair hearing as the judge has already made the view. He stated that there was no need for the judge to have made the comments she made in the ruling. He emphasised that words have consequences.
He pointed out that the application is not intended to criticise the judge’s ruling. He said his clients are concerned that the judge has formed the view about the merits of the main application.
Adv. Christopher Lephuthing who is representing the PSs asked the court to dismiss the recusal application. He argued that the government has not made its case for the recusal sought. He said the application is a desperate move for forum shopping. He emphasised that the interim reliefs should be argued soon.
Another lawyer for the PSs Adv. Sello Tsabeha argued that the judge has reproduced what is being said in the court papers when she made the ruling. He submitted that it is not fair that the government says that the judge has formed the view.
He described the application as nothing but ‘a storm in a teacup’. He said that usually happens when litigants want to avoid real facts.
The judge has in her ruling in which the two applications were consolidated on the issue of jurisdiction stated that the High Court is responsible to ensure that the applicants’ contractual rights are protected against oppression from the employer.
She pointed out that there is no other court that can grant a declarator where a right has been violated except the High Court. She emphasised that it is only this court that can give the applicants an ear adding that the High Court is the proper court to determine the matter before it.
She further stated that the applicants are entitled to assert their rights. She said that it would be inappropriate for the applicants to sit back and let the employer deviate from the agreement that they had, as alleged, hoping that they will get a remedy and should have not come to court waiting for such time.
The judge emphasised that this is the right moment for the applicants to make all the noises about the protection of their rights. She indicated that they cannot wait any longer to suffer irreparable harm while they wait for subsequent recourse after the violation of their rights.
The court is expected to give a ruling on the application for the recusal on March 29 2023.
At least 16 PSs have approached the High Court seeking its intervention against a decision by the government. They instigated legal action after a disagreement between them and the government on how they are to be bought out of their contracts. They want full payment of their benefits while the government proposes to pay a portion of the benefits.
