Kirby�s headache
Oarabile Mosikare | Friday February 24, 2017 17:33
In a statement, Kirby said it would not be practical “for the present application session to proceed today”. This was after Tafa handed down a judgement in which he ordered that, “Section 4 of the CoA Act of 1980, which allows the President to determine the number of Justices of Appeal is struck down as unconstitutional”.
He also ordered that the appointment of CoA judges on more than one three-year contracts, as has been the practice for many years, is unconstitutional. Tafa said that the appointment of the Justices of Appeal, other than the Judge President is unconstitutional.
“The court directed that the operation of the order declaring Section 4 unconstitutional be suspended for six months to allow Government to amend the law so as to regularise the appointment of Justices who are not on a second contract. The court did not suspend the operation of the order nullifying the appointment of the Justices of Appeal,” Kirby wrote.
He also disclosed that the Attorney General (AG) was studying the judgement, and would advise if an appeal is to be lodged, and a stay of the operation of the orders sought, so that clarity could be obtained. “Until then, it will not be proper for the affected Justices of Appeal to continue with their duties, nor will they be able to complete and deliver their reserved judgements in two outstanding constitutional cases. It will also not be practical for the present application session to proceed today.”
In his founding affidavit, the acting AG, Morulaganyi Chamme said the application is urgent that the operations of the orders of the High Court be stayed so that the CoA continues to operate in the public interest pending intended appeal.
“There are two constitutional matters that were argued before the full court in the January session, in which judgement has been reserved. If the orders are not stayed the Justices will not be able to sign and deliver their judgements in those matters, to be prejudice of the litigants and of the public,” Chamme said. He said already the application session of the CoA, which was to begin on February 17, 2017 has had to be postponed.
“To rely solely on judges of the High Court for these sessions and for the appeal will be extremely disruptive of the normal work of the High Court, and will be prejudicial to litigants, as will the cancelling or postponement of the upcoming sessions.”
He added that granting of a stay would ensure the continued smooth operation of the Administration of Justice (AoJ), which is a national imperative and will cause no prejudice to litigants, including the first respondent, National Amalgamated Local and Central Government and Parastatal Workers’ Union (NALCGPWU).
“The granting of the stay will not prejudice the respondents as their rights, constitutional or otherwise, will not be adversely affected thereby, and the balance of convenience favours the applicants.” The other respondents cited are Justices Isaac Lesetedi, Monametsi Gaongalelwe, John Foxcroft, John Cameron (also known as Lord Alistair Abernathy), Arthur Hamilton and Craig Howie. Tafa is scheduled to hear this application Monday in Lobatse.