IN a major decision delivered today the appeal court of Lesotho has removed the last obstacle in the way of impeachment hearings against a senior judge.

The president of the court of appeal in Lesotho, Michael Ramodibedi, who is also the chief justice of Swaziland, had appealed against the decision of the king of Lesotho to appoint a three person tribunal to investigate a slew of charges against him. The charges were compiled by the country’s prime minister, Tom Tabane, and relate to charges in Lesotho as well as in Swaziland.

Among the complaints is a charge that the judge ordered his official driver in Lesotho to make a false insurance claim for accident damage, saying that he, the driver, had been behind the wheel at the time when in fact it had been the judge’s son.

Ramodibedi said that the tribunal had been unlawfully appointed because he had not been given a chance to put his side of the story before the king made the appointment.

Lesotho’s highest court, the court of appeal, heard the matter on 24 March and its decision, written by South African Supreme Court of Appeal judge Fritz Brand, was handed down today.

Brand, with four other South African judges, asked to hear the matter to avoid any judge in Lesotho having to preside in a matter concerning their senior colleague, said that Ramodibedi had not been given an opportunity to be heard before the decision was taken.

However this did not on its own mean that the appointment of the tribunal would infringe Ramodibedi’s right to fair procedure. The courts were increasingly accepting ‘a more supple and encompassing duty to act fairly’ rather than the previous insistence on the rule of a formal hearing at which the affected person could appear and give his or her side of things.

Typically, courts were now ‘steadily retreating from the old formalistic and narrow approach’ to one of a ‘broad and flexible duty to act fairly in all cases’.

In this case, where Ramodibedi had not been given an opportunity to be heard before the king’s decision was made, the question was whether the procedure adopted was unfair.

The most significant negative effect for the judge was the negative impact on his reputation, said the court. However, at the time the tribunal was appointed all the allegations of misconduct against him were already in the public domain. In other words, his reputation ‘was already tarnished before the request for the appointment of a tribunal by the prime minister.’

In the view of the appeal judges, the only way for Ramodibedi to salvage his reputation was for him to ‘successfully refute the allegations before the tribunal.’ And the removal of uncertainty about his reputation caused by the wide publication of the allegations was not only in his interests; it was also in the public interest since the allegations and the uncertainty surrounding them ‘affects the unconditional public respect for the integrity of the judiciary without which the court simply cannot function. The interests of the administration of justice thus required the appointment of the tribunal as a matter of urgency.’

‘I hold that insistence on strict compliance (with the formal rules) would in the circumstances of this case have been overly burdensome on the prime minister, undermined the administration of justice and unhelpful to (Ramodibedi).’

While the judgment is no good news for Ramodebedi, he can at least take comfort from the fact that he won’t be saddled with a costs order against himself: the court said that since the case involved constitutional issues, and was not brought in bad faith, there would be no order as to costs.

With the result of the appeal the king’s tribunal – consisting of three retired South African judges – may now go ahead with their investigation of the charges against Ramodibedi.

Lesotho President Court of Appeal v Prime Minister