over Constitutional Court bench’s recusal bid — as judges describe application as calculated abuse of court process
Staff Reporter
SUSPENDED High Court Judge ‘Maseforo Mahase has been ordered to pay the State’s costs on the highest scale (punitive attorney-and-client level) after Constitutional Court judges dismissed her bid to have them recuse themselves from hearing her constitutional challenge against her suspension and impending impeachment.
The panel of retired South African judge Justice Boissie Henry Mbha, Justice Kamanga Ivy Chatha of Malawi and Justice Latifa A. Mansoor of Tanzania described Justice Mahase’s recusal application as a “calculated, mala fide abuse of the court process”, accusing her of deliberately citing them in their personal capacities to manufacture a conflict of interest and force them off the case.
The judges said the application was fundamentally defective because judges cannot be made personal parties to proceedings seeking their recusal. They held that such an application should be brought as an interlocutory motion within the existing case, without changing the parties to the main proceedings.
In their written reasons, delivered on 13 October 2026, the judges ruled that Justice Mahase’s conduct warranted costs on the attorney–client scale, the highest and most punitive costs order available in civil litigation.
They also ordered her to pay the ordinary costs of the postponement of the main case on 29 May 2026, which followed her last-minute request for the entire bench to recuse itself.
The ruling is a setback for Justice Mahase, who is challenging her 4 November 2025 suspension and the process to remove her from office. Her substantive constitutional application seeks to overturn decisions relating to her suspension by His Majesty King Letsie III, acting on the advice of Chief Justice Sakoane Sakoane, and the appointment of a tribunal to investigate her possible impeachment.
Justice Mahase is seeking immediate reinstatement as a judge, with all associated rights, privileges and remuneration. She also wants the tribunal’s appointment reviewed and set aside and proceedings relating to her impeachment or removal stopped.
The recusal dispute arose when the main constitutional case was due to be heard on 29 May 2026. Justice Mahase’s counsel informed the court that morning that he had instructions to seek the recusal of the entire bench, initially describing the objection as procedural without identifying any specific allegation of bias. The main case was postponed indefinitely.
Justice Mahase subsequently filed the recusal application on 4 June 2026, arguing that the three judges could not be impartial because they had been appointed to the High Court on the advice of the Judicial Service Commission (JSC), chaired by the Chief Justice, whose conduct she was challenging in the main case.
She argued that a reasonable and properly informed observer would apprehend a real possibility of bias because the judges owed their judicial appointments, and their assignment to her case, to the Chief Justice.
However, the judges rejected the argument that their appointments provided a sufficient basis for their recusal. They said Justice Mahase had also fundamentally erred by citing them by name and in their personal capacities as respondents rather than bringing the application within the existing constitutional proceedings.
The court stressed that a recusal application was not a separate lawsuit against the judges concerned, but an interlocutory procedure within the main case.
“It is trite common law principle that, a recusal application is a procedural interlocutory proceeding brought within the existing or ‘main case’. It bears emphasis that it is definitely not a new lawsuit against the individual who holds judicial office and who adjudicates the main case.”
They further explained that the parties in a recusal application remain those in the original proceedings and that the judge whose recusal is sought is never a party to the litigation.
“All the foregoing leads undisputedly to the conclusion that judges adjudicating in their appointed capacity as such, cannot be personally cited in their private or personal capacity as has happened in this case. Clearly, they do not have any direct and substantial interest whatsoever in the subject matter of the litigation that they must adjudicate.”
The judges said the error was not a harmless technicality, but a fundamental defect that undermined the proper administration of justice.
They also referred to judicial independence, protected under section 118(2) of the Constitution, and the principle that judicial officers should not be exposed to personal litigation for decisions and actions undertaken in their official capacity.
Judges question Mahase’s motives
Beyond the procedural defects, the judges took issue with what they regarded as Justice Mahase’s deliberate departure from established legal practice.
They referred to the 2019 case of Madam Justice Maseforo Mahase and Others v Lebohang Hlaele and Another, in which Justice Mahase and other litigants sought the recusal of a judicial panel and the wider High Court bench when then All Basotho Convention secretary general Lebohang Hlaele, sought her impeachment.
According to the judges, that earlier litigation demonstrated Justice Mahase’s familiarity with the proper procedures for seeking recusal. They therefore rejected the suggestion that her approach in the present case was an innocent mistake.
“In our view, her sudden swing to personal citation in the current motion exposes a deliberate intent to manufacture a conflict of interest, manipulate the judicial schedule, and force this Court into an unwarranted recusal.
“The applicant demonstrates an existing, functional understanding of the rules governing judicial citation. Her total departure from this established baseline in the current motion—by structurally dragging our private persona into the record—cannot be defended as an oversight.”
The court concluded that the personal citation of the judges was a tactical attempt to force them out of the case by creating what it described as a fictional personal dispute.
It warned against litigants manipulating recusal procedures to influence which judges hear their cases, a practice commonly associated with “judge-shopping”.
Punitive costs to deter abuse
The judges said Justice Mahase’s conduct justified a punitive costs order because it threatened the integrity of court proceedings and risked undermining judicial independence.
“This in our view justifies punishing this conduct through an exemplary, punitive costs order. To this end, it is worth mentioning that a court’s power to award punitive costs is rooted in its inherent jurisdiction to prevent the subversion of its own mechanisms.”
The court said personal citation had attempted to place the judges in an untenable position, potentially forcing them to recuse themselves or continue hearing a case in which they had been named as parties.
They said Justice Mahase’s recusal bid was an abusive litigation and attempts to manipulate judicial proceedings.
They consequently ordered her to pay the costs of the recusal application on the attorney-and-client scale. She was separately ordered to pay the ordinary costs arising from the postponement of the main case on 29 May 2026.
Impeachment battle remains
The ruling does not determine the merits of Justice Mahase’s constitutional challenge against her suspension or the appointment of the tribunal tasked with investigating her possible removal from office.
Her main application challenges decisions connected to her suspension and the establishment of the tribunal under section 121(5) of the Constitution. She wants the tribunal’s appointment declared unlawful and set aside, alongside an order stopping proceedings relating to her impeachment or removal.
In her November 2025 application, Justice Mahase accused Chief Justice Sakoane of suspending her without first affording her a hearing.
She argued that, had she been given an opportunity to respond, she would have presented affidavits from Advocates Makara and Fusi Sehapi showing that the disputed cases had been allocated to her through normal procedures.
Justice Mahase further argued that the failure to allow her to make representations violated the audi alteram partem principle — the right to a fair hearing — which is a cornerstone of administrative justice.
She was also accused of failing to deliver judgments within the 90-day period prescribed by judicial regulations.
Her suspension followed months of escalating tensions with the Chief Justice.
The recusal judgment therefore deals only with whether the three judges should be removed from hearing that constitutional challenge. It leaves the substantive dispute over Justice Mahase’s judicial future to be determined.