/ 27 March 2014

Judicial protocol taken for a wild ride

Chief Justice Michael Ramodibedi.
Chief Justice Michael Ramodibedi.

While South ­Africans obsess over the Oscar Pistorius trial, a completely ­different kind of court case is riveting the politically savvy in neighbouring Swaziland and Lesotho.

Their leading judge, Michael Ramodibedi, the president of the appeal court in Lesotho and chief justice in Swaziland, is charged by the Lesotho government in connection with fraud and financial irregularities, not to mention political improprieties. He could shortly have to give an account of himself to a tribunal investigating whether he should be impeached.

It's hard to know exactly what the last straw for Maseru was, and which of the actions listed in the charges finally ensured Lesotho's commitment to the impeachment option. But it could have been the unseemly dispute between Ramodibedi and Lesotho's one-time chief justice, Mahapela Lehohla, about which of them ranked higher in terms of protocol.

That dispute reached a climax when the driver chauffeuring one of them tried to overtake the vehicle conveying the other as they drove to – or from, depending on whose version you read – the king of Lesotho's birthday party. The point of the overtaking, regarded variously as childish, dangerous and unseemly, was to ensure that the vehicles travelled in the order of precedence viewed as correct by the passenger in the ­overtaking limo.

Lesotho's chief justice has since left office, a move the government of that country welcomed, maybe even subtly engineered, and wants Ramodibedi to follow. Once both are out of the way, the law can be fixed to stipulate clearly which of the two, the chief justice or the appeal court president, is the head honcho at the Palace of Justice in Maseru.

But the overtaking fiasco is just one in a very long list of complaints prepared for the investigating tribunal, some of which relate to Ramodibedi's period of office in Lesotho, and some to what he is alleged to have done in Swaziland.

This week, Ramodibedi, in absentia, dominated debate during a crucial hearing at the appeal court in Maseru packed with lawyers and members of the public. The appeal concerns his argument that he should have been given an opportunity to be heard before the decision was made to appoint an ­impeachment tribunal.

Peter Hodes SC for Ramodibedi said natural justice demanded that his client be allowed to put his position before such a decision was taken. Gilbert Marcus SC for the Lesotho government said a "hearing before a hearing" was not required, and that, in any event, Ramodibedi had had a number of opportunities to put his case, but had not used the chance to do so.

Judgment has been reserved by the five appeal judges – all South Africans thus forestalling any recusal applications – but they are likely to make their decision urgently, knowing only too well from domestic experience the need for damaging disputes over judicial impeachment procedures to be finalised as quickly as possible.

The five judges are: Fritz Brand and Azhar Cachalia of the Supreme Court of Appeal, Frans Malan who has just retired from that Bench, and Willem Louw and Roger Cleaver, both recently retired from the Cape Town Bench.

In the meantime, the list of charges the Lesotho government wants the tribunal to consider and the way in which the impeachment process began all make for a startling read.

Ramodibedi says he paid a prearranged courtesy call to the Lesotho prime minister, Tom Thabane, at the end of the April 2013 appeal court session. He found other ministers present and, during the conversation, Thabane "asked that [Ramodibedi] step down" from his position as appeal court president.

There was a "perception" that he and the chief justice had both been responsible for the judicial "mess" in Lesotho. The chief justice had "graciously" agreed to retire from his Lesotho post, and Ramodibedi should do the same.

Thabane disputes that he put the issue to Ramodibedi in this way, but this was clearly the crucial meeting at which the matter was first raised between them. Ramodibedi says he immediately pointed out that this was unconstitutional interference with the judiciary.

A preliminary skirmish followed with an attempt by Lesotho to remove Ramodibedi's two official cars from him out of court term time, and Ramodibedi's immediate court action to prevent this step.

Shortly afterwards, Thabane wrote to Ramodibedi to tell him that King Letsie III was appointing a tribunal to inquire into his alleged misbehaviour and/or inability to perform his job. He was also invited to make representations about why the prime minister should not advise the king to suspend him.

Ramodibedi says the charges disclose an abuse of power by the prime minister, who "feels personally insulted" because Ramodibedi refused to step down, and he should have been given an opportunity to be heard before the decision was made to go ahead with impeachment proceedings.

The prime minister's letter lists a number of grounds for impeachment, starting with the dispute over seniority that threatened the "integrity and independence of the judiciary", and includes the overtaking debacle as well as the cancellation of the appeal court's January 2013 session after a row between the two top judges over who should serve on the court.

Ramodibedi is said to have fraudulently instructed his official driver to put in an insurance claim related to an accident with his government vehicle, saying that the chauffeur was behind the wheel at the time, when in fact Ramodibedi's son was driving. As a result of this claim, the insurer paid out more than R123 000 for repairs and the government paid the excess of nearly R19 000.

This is followed by other allegations of financial impropriety related to travel allowances Ramodibedi has claimed, despite having the use of two official vehicles and a home in Maseru, and to claims he made for his wife to travel with him to the United Kingdom.

Giving further details, the prime minister says that after the August 2012 term, two judges each gave back more than R103 000, saying they had been paid for 16 days of writing judgments when the task had taken only two days.

Ramodibedi, the only other judge during the August session, has not returned any money. The prime minister claims that the three judgments Ramodibedi wrote cannot have taken the 16 days for which he was paid. At most, the work would have taken four or five days, and similar complaints about payment of excessive allowances to judges have been made by the Law Society of Swaziland in relation to Ramodibedi's position as chief justice there.

Ramodibedi's decision to litigate against the government of Lesotho is a further ground listed in the charges. Thabane says the action itself and the language he used about the government shows he's no longer able to be impartial in cases involving the government or its representatives.

Politically the most interesting, the last group of charges relate to his position as chief justice of Swaziland where his actions, apparently in support of the absolute monarch of that country, King Mswati III, have caused an outcry from local and international human rights organisations.

Lesotho is thus aligning itself not only with the critics of Ramodibedi, but also with the critics of Mswati.

Because of significant differences between the two countries on the separation of powers and similar crucial questions, Ramodibedi's position in Swaziland creates the reasonable perception that he can't carry out his functions properly in Lesotho, according to the charges. His actions as Swazi chief justice are "subversive of the independence of the judiciary and of the separation of powers as these principles are appreciated and practised in Lesotho".

The charges quote in detail from an official complaint against Ramodibedi by the Law Society of Swaziland and adopt these complaints for the purpose of the impeachment inquiry.

They include allegations of sexual harassment by four women employed by the high court in Swaziland, and financial impropriety related to his position as chief justice, including acquiring two official vehicles from the Swazi government.

They also pick up on highly controversial actions by Ramodibedi, such as his directive that no civil claims may be brought against the king, his actions leading to the sacking of fellow Swazi Judge Thomas Masuku and his intervention in a high-profile murder trial being heard by another judge.

The charges also say that Ramodibedi, who chairs the judicial service commission in Swaziland, did not recuse himself in cases directly affecting himself, that an official residence has been built for him in Swaziland, and that although he is supposed to be resident in Lesotho ­– which would not require him to claim travel allowances to get to court – he is apparently actually resident in Swaziland. Thabane also refers to the three cows given by Ramodibedi to Mswati as "homage", saying such an action would be intolerable in Lesotho.

In responding court papers, Ramodibedi says the Swazi law society's allegations are "baseless, hearsay" and "irrelevant", adding: "Whatever I have done in Swaziland is no legitimate concern for Lesotho."

While the five judges consider their decision on the appeal argued on Tuesday, Ramodibedi's controversial actions in support of the Swazi monarchy continue unabated.

This month, he is once again at the centre of a row over human rights and the rule of law after he had prominent Swazi lawyer Thulani Maseko and local newspaper editor Bheki Makhubu jailed for criticising the king, barring them access to their legal advisers.

Carmel Rickard is a freelance journalist who writes about law.