March 14, 2023


3 min read

Makhetha yet to decide whether or not she stays

Makhetha yet to decide whether or not she stays

Justice 'Maliepollo Makhetha

Story highlights

    The respondents are concerned that the judge will not be impartial
    Judge says the applicants had the right to come to court to present their case

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JUSTICE ’Maliepollo Makhetha will on March 29 decide whether or not she recuses hers as the presiding judge in the matter in which 15 Principal Secretaries (PSs) are challenging their dismissal by the government.

This, after Justice Makhetha, ruled that the court had the jurisdiction to hear the matter.

Advocate ’Mateboho Tohlang Phafane who represents the respondents in the matter had earlier asked Justice Makhetha to step down from the case, arguing that she appeared to have reached a conclusion that the government seemed to be infringing the applicants’ fundamental human rights.

The 15 PSs filed urgent applications before the High Court asking the court to interdict the government from retrenching them without reaching an agreement on how the parties concerned would part ways as per their contracts.

The other application was for the same court to discuss whether it had the jurisdiction to proceed with the matter.

Handing down the judgment, Justice Makhetha agreed with the applicants that the High court was the right place for them to present their case.

She said it would be inappropriate for the applicants to just fold their arms and watch their employer breach their contracts.

She said it would have also been incorrect for the applicants to not have approached the court for legal intervention.

Senior Counsel (SC) Darryl Cooke for the respondents said owing to certain remarks made in the previous ruling, he was apprehensive that the judge had already formed a view on certain issues in the main application.

“The case today is not about whether or not the ladyship was correct in the previous ruling. It is also not about whether or not she was correct in the observations she made about the urgency of the matter. There's no criticism of the views she made and expressed,” he noted.

Cooke however, commended Justice Makhetha for being impartial and objective in her judgment.

An impartial judge, he said, is a fundamental prerequisite to a fair trial, adding that a judicial officer should not hesitate to recuse themselves if there are reasonable grounds that could render them biased.

In her past ruling, Justice Makhetha had said: “It is my view that it is absurd for the applicants to sit back and let the employer deviate from the agreement that they had as alleged, hoping that tomorrow they will get a remedy and that therefore they should not come to court until such time.  

“In my considered view, there's no other court that can grant the clarity except this court where the rights have been violated, and as to interdict, I take it that this is the right time for the applicants to make all the noise about the protection of their rights”.

“As I said, the applicants cannot wait any longer to suffer irreparable harm”.

Cooke submitted that the comments indicated the applicants were going to lose on urgency as the judge showed that they could not wait any longer, adding that the use of the term ‘irreparable harm’ was a red flag to any person with testable knowledge.

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One of the applicants’ lawyers, Advocate Christopher Lephuthing said the issues the judge expressed her opinions on had already been argued, therefore the government could not be allowed to deviate from the undertakings it had made.   

He said the views the judge expressed in her ruling had a properly founded premise from the points made on reforms and the need for the government to depoliticise the public service before the recruitment of new PSs could be undertaken.

He argued that the judge’s views did not warrant her recusal from the trial.

Adv Lephuthing said where the jurisdiction is being contested, anybody who is not happy with the ruling does not apply for recusal of the judge, rather they appeal.

He said the judge is only being challenged for the words she used.

Another lawyer for the applicants, Adv Sello Tšabeha said the application should be shot down, arguing that the respondents’ reasons were absurd because the judge was duty-bound to pick the words she used. 






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