First contact with UIHJ
After arrival late afternoon on the 14th February 2006, the delegation was entertained to dinner by the Honorable The Chief Justice Mahapela L. Lehohla, This dinner was attended by the Honorable Thabane, the Minister of Communication, the Honorable Metsing Assistant Minister of Justice, and the Chairman of the interim Board for Sheriffs, the Honorable Justice Mr T. Monapathi, and Mrs Hlajoane Justice of the High Court, and Ms Lebotsa, the acting principal secretary to the Department of Justice, and lastly, but not in the least, the Secretary of the interim Board for Sheriffs, Mathinya Sesioana
During the conversations around the table it appeared that the informal Board for Sheriffs, constituted in the Department of Justice under Chairmanship of Justice Monapathi, consisted of six practicing Sheriffs, a representative of the Law Society and the Secretary. The Sheriffs therefore had the main and also effective representation on this body.
It also appeared that an independent Association of Deputy Sheriffs and Messengers of the Court had not yet been formed in the Kingdom of Lesotho, and that the interim Board for Sheriffs was acting as a committee under Chairmanship of a Judge of the High Court afore mentioned.
During the discussions at this excellent dinner reference was made to the Ohada Treaty, the 1965 Hague Convention and others matters relating to the task of Sheriffs worldwide.
Desperate need for a professional framework for Deputy Sheriffs
The actual consultations of the delegation led by Leo Netten commenced on Wednesday 15th February 2006, and which meeting was opened by Mr. Justice Monapathi, who referred to the first contact by the Kingdom of Lesotho with the UIHJ when he attended the Pretoria Conference in February 2005. The Honorable the Assistant Minister Mr. M Metsing delivered the main address on behalf of the Honorable Refiloe Moses Masemene, Minister of Justice, Human rights, Law and Constitutional affairs of the Kingdom of Lesotho, who was overseas on an official visit,
In the speech delivered to this consultative session, reference was made of the desperate need for a professional cadre of Deputy Sheriffs in Lesotho, and that because of lack thereof public confidence in the Justice sector was very low and there is much concern about the manner in which Judgments are executed.
The presentation further referred to a long history of a series of public allegations about unlawful and fraudulent execution of court orders or judgments.
It was mentioned that in some instances law firms have been accused of arrogating unto themselves the property of deceased persons and have also issued fraudulent court process.
To Basotho (the people of the Kingdom of Lesotho) the Courts are perceived as the epitome of Justice and all that is good and just, and this confidence was betrayed by the Justice system.
Reference was then made to a Lesotho Justice sector conference that was held in July 2004 and in which conference it was recognized that there were serious impediments in developing effective delivery of Justice. It was stated and found that these defects went to the heart of public confidence.
One of the key actions in the Justice sectors Annual Plan 2005/2006 was therefore to improve the execution of Judgments.
Mention was also made that the Government of the Kingdom of Lesotho was so concerned about the ineffective rendering of Justice that it was on the point of establishing an investigatory office to look at and report in regard to unlawful, fraudulent and/or unprocedural court processes and improprieties in the discharge of functions assigned by the Master of the High Court. A notice in the Government Gazette of the Kingdom of Lesotho was expected to appear shortly after the visit by the UIHJ delegation.
A report of this investigatory body is expected in the middle of 2006 and where after it might be necessary, depending on the facts unearthed, to establish a Commission of Inquiry.
In closing the prepared speech by the Minister of Justice paid public tribute to the work done by Mr. Justice Monapathi, who worked tirelessly to bring about the consultative session and also to establish a Lesotho Sheriff Association.
After this speech had been delivered on behalf of the Minister of Justice, the Chairperson of the session, Justice Monapathi, requested Leo Netten to take the floor.
Leo Netten mentioned that certain of the matters raised by the Minister of Justice are in fact universal problems that are being identified as a result of globalization and the disappearing of frontiers. He therefore underlined the necessity for the review of law from time to time and the absolute necessity for communities to have respect for the judicial process - that would include Courts of Law, Judges, administration of Justice, and eventually the effective enforcement of orders of Court.
He also referred to the universal principles as regards human rights regarding enforcement of law, with reference to a fair trail within a reasonable time, and the principle that citizens should be able to assert their legal rights within a reasonable time, and mentioning in closing that a Judgment is useless without enforcement.
Leo Netten then also referred to cross border service of civil documents, and requested Robbie Schilz to continue with the discussion.
The permanent representative for Southern Africa thereupon referred to the necessity of clear and enforceable rules of court, and training of Sheriffs in regard to practice and procedure as provided for in such rules.
He also referred to the necessity of an independent Association of Deputy Sheriffs and Messengers of the Court, and concluded with a short over view in regard to the tenets of the 1965 Hague Convention on cross Border Service of Judicial and extra Judicial Civil documents.
Thereafter Johan Fourie referred to the creation of the UIHJ in 1952, present membership of 65 countries, and the outreach to Eastern Europe, Asia and the America's, as also the structure and ideals of the OHADA convention in the Franco phone countries in Africa.
He also dealt with the resolutions taken at the Pretoria Conference in February 2005. The resolution in regard to debt collection was received with mixed feelings - the Sheriff's were very interested in hearing of an avenue of activity that could increase their earnings - on the other hand the reaction from the representatives of the Law Society, the Chief of Police and the local authority was very muted.
An endemic non-payment of fees
Leo Netten then again was given an opportunity to take the consultations further, and he made mention of a remark by the Honorable Chief Judge at the occasion of the dinner the previous evening, when the Chief Judge referred to lots of talk and heads in clouds, and that he, the Chief Judge, wanted to see practical action.
Leo Netten then responded thereto that the consultative session would have to look at the way forward pro-actively.
Justice Monapathi then mentioned some of the problems, amongst them that no uniform law or rules of Court existed.
Mention was also again made of the Human Rights Factor, and in this respect Johan Fourie referred to the possible creation of a Fidelity Fund. He conceded that funding of such a body would be very difficult.
The permanent delegate for Southern Africa then referred to Human Rights and said that this should follow on the training of Sheriffs after a set of Rules had been promulgated - the Human Rights factor could then be included as a part of the training at the point in time when the rights, duties and limits of a Sheriff's powers was discussed at one or more training sessions after such rules became available. Justice Monapathi referred to complaints from members of the public and legal practitioners, in regard to the execution of judgments and even the service of documents, and that presently no clear practice was established to deal with such complaints.
Conversely he also referred to the complaints by Sheriffs that the non-payment of fees was endemic in the Kingdom of Lesotho.
The President of the Law Society of Lesotho said that lack of accountability was at the root of the problem, as perceived by the Law Society, and stated that any form of regulation would go far to address the present unacceptable situation as it existed in the eyes of legal practitioners. He continued and stated that complaints had frequently been made, and that there were even suggestions that in certain matters the delays in execution took place as a result of the fact that the judiciary in the person of one or a another judge or magistrate had a personal interest in the outcome of a particular matter. He closed in stating that legislation would take away the suspicions that some writs are acted upon and others not.
Draft rules for the High Court
The Deputy Minister at this stage in the discussions referred to the present situation in Lesotho he asked what is being done in regard to a proper set of Rules and the administration of the profession of Deputy Sheriffs and Messengers of the Court.
The Chief Magistrate contributed by stating that the idea to come up with a proper set of Rules is laudable and said that it would give a reference point to standard obligations and procedural practice.
He also stated that he did not want to impose on himself or the meeting to consider exhaustive legislation. It was agreed that sufficient and effective over sight for immediate attention was necessary.
In concluding the outcome of the discussions in the Kingdom of Swaziland were referred to, and the fact that both Johan Fourie, an UIHJ Board member, and the Permanent Delegate for Southern Africa had been requested by the Registrars Advisory Committee in the Kingdom of Swaziland to attend not only to preparing a set of draft Rules for the High Court of Swaziland, but also to advise on a practical and effective manner in which complaints by either the public, the legal profession or in fact any other interested party, could be dealt with swiftly and effectively.
It was then agreed by the consultative session that Johan Fourie and the Permanent Delegate for Southern Africa would be requested to afford the Ministry of Justice in the Kingdom of Lesotho with the same assistance.
It was however understand that observer membership of the UIHJ was a pre requisite, which could only be granted to an independent Association of Deputy Sheriffs and Messengers of the Court of the Kingdom of Lesotho.
In conclusion the Chairperson of the consultative session, the Honorable Justice Monapathi, thanked those present, and made special mention of the visit of the delegation of the UIHJ.
He also apologized for the fact that the Honorable the Assistant Minister of Justice Mr. Metsing had to leave the meeting early to attend to other urgent official business.