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Dysfunctional Commercial Court distresses economy

Local chartered accountant Samuel Mphaka

Sept. 22, 2020 3 min read

3 min read

MASERU - Effective and efficient governance systems in the legislator, executive and judiciary are the backbone of any country’s economy, top local economist, Samuel Mphaka has said.

Mr Mphaka said if any of the three governance pillars is weak, none of the other two will function well, hence, a country’s economy suffers and weakens.

His comments come at the back of a bitter wrangle within the country’s justice system which has left the Commercial Court without a single judge to date.

This, after the court’s only two judges, Justices Lebohang Molete and Lisebo Chaka-Makhooane died one after the other earlier this year, leaving a vacuum in an already distressed bench due to lack of judges.

Justice Molete, a specialist in commercial law died on his way to hospital in July after he suffered a stroke. Justice Chaka-Makhooane passed on barely a month later following a short illness.

A few weeks ago, the Judicial Service Commission (JSC) in its sitting recommended names of potential judges and submitted the list to His Majesty King Letsie III for appointment as per the law.

But the move miscarried with government subsequently coming forward to suggest that the JSC’s sitting did not have its blessing, shooting down its recommended candidates.  

The Minister of Law and Justice Professsor Nqosa Mahao said both the ministry and government were not made aware of the sitting which led to the recommendations. 

Responding to Prof Mahao’s sentiments, the Registrar of the High Court and the Appeal Court Registrar, Advocate ’Mathato Sekoai said the JSC did not contravene any law by recommending judges for appointment.

“As it stands, there are still no judges at the Commercial Court and that is detrimental to the delivery of justice,” Adv Sekoai said.

She added: “This has caused a serious inconvenience at the Commercial Court because cases are recorded and filed each and every day without being attended to. Such cases would be attended to if there were judges in that court but now the opposite is true.

“At this point I cannot even predict as to when judges will be appointed because we cannot rush the King to approve such appointments,” she told Metro this week.

The delay in appointment of judges has been described as detrimental to the country’s economy by Mr Mphana with his sentiments implying that Lesotho does not take the Commercial Court seriously.

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Minister of Law and Justice Prof Nqosa Mahao

“Lesotho became independent about 54 years ago, but only established the Commercial Court after 46 years of independence. It then goes without saying with regard to why the country is still counted among the least developed countries even today.

“This tells us that Lesotho has got its priorities completely wrong from the start. It is therefore not surprising as to why the Commercial Court system is still non-effective, without adequate resources whatsoever even now following its establishment approximately seven years ago,” he said.

At this pace, he said the situation is likely to worsen, and may lead to the collapse of the law enforcement agencies in the country.

“The law enforcement agencies such as the police and the Directorate on Corruption and Economic Offence (DCEO) will, in time, become dysfunctional, demotivated, demoralised and non-effective in relation to commercial crimes. There will be a pile up of undecided commercial cases, resulting in fraudsters and thieves taking advantage of the situation,” Mr Mphaka warned. He further cautioned that even the public funds accountability agencies such as the National Treasury and the Office of the Auditor General (OAG), including the Public Accounts Committee (PAC) of the parliament also stand to suffer under the circumstances.

In a nutshell, he said, the country will soon be under siege and state capture by the perpetrators of commercial crimes, particularly in the public sector.

“The country will become a failed state, if at all it is not already one. The general accountability for funds, even in the private sector, which is under the watch of Lesotho Institute of Accountants (LIA), will also become weak and relaxed,” Mphaka who is also a top chartered accountant warned.

The sum effect of the above situations is that the investor confidence, and the entrepreneurial spirit and initiatives will be completely eroded, resulting in acute unemployment, high crime, weak economy and perpetual poverty.



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