“Judicial immunity rationale materiae [subject matter] covers actions done in the exercise of judicial power. The question is
whether litigant can sue a judicial officer for a wrongful exercise of judicial power. The current jurisprudence on judicial immunity against civil claims for
wrongful exercise of judicial power is that judicial immunity applies on a qualified basis for subordinate judicial officers such as Magistrate and on an
unqualified or absolute basis for judges of superior courts,” reads the judgment in pertinent part. It further holds that; “The independence and freedom to exercise judicial power is
subject only to the Constitution and the law. ” This saw the court dismissing a case wherein the applicant had interdicted it seeking relief from being committed to prison over contempt of court by the
lower court. The applicant had tabled the following prayers before the court that: During the oral arguments, the applicant’s lawyer, Advocate Fusi Sehapi abandoned
prayers (e) and (f) bringing the prayers to six. In a custody of their child – the applicant ‘Mampeli Marabe and the respondents; Maseru Magistrate Court, Presided by Her Worship Puseletso McPherson – the
Magistrate Court, sitting as the Children’s Court, ordered that the applicant will have access to their minor child on long weekends and school vacations.
It had further said both parents will “interchange” and the parent who is not staying with the child will always have access to the child and charged both to
communicate about this child and always act in the best interests of the child. Finding the applicant guilty of contempt of court, the Magistrate argued that: “The
court arranged that the parties will interchange with the child fortnightly. This arrangement has been working well for months until plaintiff disrupted it
by not bringing back the child until it was a third week. Upon being asked by the court why she did not bring the child at the time agreed, she answers the
court that ‘she did not bring the child because she liked’ with all sarcasm on her face. “Even after she was given another chance by the court to answer and remember she was
in court, she still disrespected the court saying that whatever she said was not by mistake. Plaintiff was called in to show cause why she cannot be committed for contempt of court.
Her reply [was] not satisfactory to the court. Her sarcastic answers shows (sic) that she does not respect the honourable court. She blatantly defied its order as she is contemptuous.
” The Constitutional Court held that; “The remedies for wrongful conviction and
procedural impropriety are well known in law. They are either appeal against the verdict and sentence or review of the proceedings. These remedies are
provided for under sections 119 (1) and 130 of the Constitution of the Kingdom. That is where the matter would rest but for the applicant’s claim for constitutional damages against the learned Magistrate who imprisoned her for wilful
disobedience of a court order regulating visitation rights of the applicant and her ex-husband in relation to their child. ” The applicant is the clerk of the court of Maseru Magistrate’s Court, Mokhethea
Marabe, the Director of Public Prosecutions, the Ministry of Law and Constitutional Affairs and Human Rights, the Speaker of the National Assembly, the President of Senate and the Attorney General respectively.
The coram was formed by the Chief Justice Sakoane Sakoane, Judge Keketso Moahloli and Judge Polo Banyane. The first, second, fourth, fifth, sixth, seventh and eighth respondents were represented by Advocate M. Sekati and the third respondent was represented by Advocate L. Lefikanyana.