The Constitutional Court of Lesotho has handed down a landmark judgment in Justice Tseliso Monaphathi v His Lordship the Chief Justice and Others, a case that has exposed deep tensions between judicial independence, accountability, and constitutional duty. While the ruling granted Justice Monaphathi a narrow victory, it also introduced what commentators are calling an “evergreen contract” for judges — a precedent that could reshape the judiciary in troubling ways.
The Background
Justice Monaphathi retired in August 2024, but left behind more than 120 reserved judgments and over 10 part-heard cases, some dating back nearly three decades. The Chief Justice directed that his retirement benefits would not be processed until he completed this unfinished work, relying on section 121(2) of the Constitution, which allows judges to continue in office after retirement to finalise pending matters.
Monaphathi challenged the directive, arguing that it violated judicial independence, amounted to forced labour, and was unconstitutional. He sought immediate release of his pension and privileges.
The Court’s Decision
The Constitutional Court dismissed most of Monaphathi’s claims. It held that:
- Judges cannot abandon unfinished work upon retirement; section 121(2) imposes a constitutional duty to complete pending cases.
- The Chief Justice’s directive was a legitimate administrative measure to protect litigants and uphold the integrity of the justice system.
- Claims of forced labour and unconstitutional interference were unfounded.
Yet, the court granted Monaphathi one significant relief: if he continues to finalise his pending cases, he must be afforded the full benefits and privileges of a sitting judge during that period. He cannot access his pension until his work is complete, but he must be paid as a judge if he continues to sit.
The “Evergreen Contract” Problem
This ruling effectively creates an evergreen contract for judges. By tying retirement benefits to the completion of pending cases, while simultaneously allowing judges to remain indefinitely in office with full benefits, the court has opened the door to extended judicial tenure without clear limits.
Critics warn that this risks rewarding inefficiency. A judge who fails to complete work before retirement is not penalised but instead remains on the payroll until the backlog is cleared — potentially for years. The court itself described Monaphathi’s delays as a “serious dereliction of constitutional duty” and even “obstruction of justice.” Yet, instead of imposing strict consequences, the ruling entrenches continuation.
A Narrow Win, a Wider Debate
For Monaphathi, the judgment is bittersweet. He secured recognition that he must be treated as a judge with full benefits while completing his cases, but lost on all other constitutional claims, including his bid for immediate pension release. The court also denied him costs, attributing much of the blame to his own “laxity” and “inexplicable inaction.”
For the judiciary, the ruling is double-edged. It reinforces the principle that judges cannot abandon unfinished work, but risks institutionalising delays by allowing indefinite continuation with full benefits. In a system already burdened by backlogs and resource constraints, the “evergreen contract” precedent may inadvertently reward the very inefficiency it seeks to correct.
Conclusion
The Monaphathi judgment is a watershed moment. It underscores the constitutional imperative that justice must eventually be delivered, but it also risks entrenching judicial complacency. Whether this “evergreen contract” strengthens or weakens the administration of justice will depend on how it is applied — and whether systemic reforms address the backlog that gave rise to this dispute.
The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available in this article are for general informational purposes only.LEX Africa’s Lesotho member is Webber Newdigate: https://www.webbernew.com/
