The judiciary is in paralysis –Adv. Alec Freud

There is no way an appeal by Court of Appeal judges that have been declared unconstitutional can be heard because there is no one who will convene such a panel, Manual Workers Union, Senior Counsel Advocate, Alec Freud from South Africa has argued.

“The appeal case by the respondents cannot be heard even if this court could grant stay of the orders. CoA President Ian Kirby cannot convene the court because by virtue of being Judicial Service Commission (JSC) member he is conflicted because JSC is a party in this case. He cannot also appoint justices from High Court as per the Court of Appeal Act.

In accordance with the Court of Appeal Act, if Kirby is out of the picture then a senior resident judge can appoint judges from High Court and convene. In this case Justice Isaac Lesetedi is the senior resident judge but this would not be possible because he is a party to the matter. For argument sake let’s say who is the next on line- Justice Gaongalelwe, he is also a party to the present case so he is conflicted. So, there is no how a court can be convened to hear the appeal”, argued Freud when opposing the application before the court on Monday this week.

The Attorney General has approached Lobatse High Court Judge Abednigo Tafa on a matter of urgency to stay the orders he made a fortnight ago over the appointment of appeals court justices, pending the resolution of the appeal. Justice Tafa has declared the composition of the Court of Appeal justices ‘Constitutionally invalid’ in a ruling in favour of Amalgamated Local Central Government and Parastatal Workers Union (Manual Workers Union) which had contended that Section 4 of the Court of Appeal Act is invalid and it is unconstitutional for the President to renew the appointment of justices of Appeal on the expiry of a three-year appointment.

Senior Counsel Matlhogonolo Phuthego from the Attorney General said even though they do not deny that the implicated CoA justices cannot hear their appeal, they pray that the orders be stayed and the judges of the CoA be allowed to continue with their duties. He argued that there would be logistical challenges if High Court judges are to sit as CoA judges.

He was responding to Advocate Freud’s argument that High Court judges can be appointed to preside over other appeal cases other than the case in question. “it is in the public interest that the stay be granted. We also have prospects of success in our appeal. The union who is a party in this matter would not be prejudiced in any way if the CoA justices are allowed to continue with their work”, said Phuthego.

Advocate Freud told the court that there have to be persuasive reasons for stay of the orders. Argued Advocate Freud, “what the applicants want is far from protecting the public interest. This would endanger public interest. If we allow the purported CoA justices to continue to sit and their appeal fails, we would be in deep crisis. If they pass judgements and their appeal fails there could be questions of validity of such judgements. It would therefore be unwise for the court in its discretion to put the nation at risk”.

Justice Tafa has reserved judgement in the application for stay of the orders for tomorrow (Thursday). Advocate Freud appeared together with Mboki Chilisa and Shathani Somolekae while Phuthego and Neo Sharp represented the applicants.