Tefo Tefo
HIGH Court Judge, Justice Teboho Moiloa, on Friday reserved judgment to 20 April, in a case in which Basotho National Party (BNP) Secretary General, Lesojane Leuta, wants his suspension nullified.
The BNP indefinitely suspended Mr Leuta on 26 February for allegedly submitting an unauthorised Proportional Representation (PR) list of the party to the Independent Electoral Commission (IEC), ahead of the 28 February 2015 snap poll.
Mr Leuta’s letter of suspension was written by the party’s deputy leader, Joang Molapo.
However, Mr Leuta approached the High Court on 4 March seeking nullification of the suspension and the party to be blocked from interfering with his nomination as the BNP’s PR Member of Parliament (MP).
The urgent application was argued before the High Court on Friday—10 days after he was sworn in as an MP.
Arguing the case on Mr Leuta’s behalf, King’s Counsel (KC), Salemane Phafane, urged the court to rule in his client’s favour on the grounds that the suspension was invalid as it had been masterminded by Chief Molapo, in contravention of the BNP constitution.
Advocate Phafane said to make matters worse, Chief Molapo had made three different statements regarding the origins of his powers when he wrote the suspension letter.
“Mr Molapo seems to be riding on three horses at the same time. Firstly, he says he wrote the suspension letter as deputy leader of the party who was then performing the functions as the leader, in the absence of the leader, when the leader (Chief Thesele ‘Maseribane) was busy campaigning for elections in Mount Moorosi.
“This cannot be true because the deputy leader cannot be the repository of power, particularly because he does not say he was acting on behalf of the leader. “He clearly states that he wrote the letter in his capacity as the deputy leader,” Advocate Phafane told the court.
Chief Molapo, he continued, then raised another version that he was acting on the decision made by the BNP’s National Executive Committee (NEC)—that Mr Leuta should be suspended pending disciplinary proceedings against him.
“But this cannot be found in the letter he wrote to the applicant (Mr Leuta),” he said.
“Assuming the committee resolved to suspend him, it was wrong because the committee doesn’t have the powers to suspend but can only recommend his suspension.”
Advocate Phafane also said the third version of Chief Molapo’s story was he had been instructed by Chief ‘Maseribane to suspend Mr Leuta.
The lawyer submitted that the three statements were contradictory, and the case should therefore be dismissed.
However, the BNP argued Mr Leuta had concealed some facts relevant to the case, among them that a committee meeting had been held to discuss his suspension.
But Advocate Phafane countered: “It has now become fashionable to raise points in limine in almost every case brought before court. And this practice seems to have gained more strength for about six or seven years now.
“On the issue of non-disclosure of the material fact, it is alleged that the applicant has failed to disclose that there was a meeting on 16 February where it was agreed that the applicant be suspended pending disciplinary charges against him.
“But the applicant says he was excused from that meeting. How could he disclose anything that was discussed in his absence? There is no substance in this point of non-disclosure.
“It is further argued that there is no urgency in this application and the respondents say the urgency is a self-created urgency.
“But the applicant was suspended on 27 February and four days later, he was in court. There is also no substance in this point of lack of urgency.”
On the other hand, the lawyer representing the respondents, Attorney Khotso Nthontho, reiterated that Chief Molapo acted within BNP constitutional boundaries when suspending Mr Leuta.
“The constitution of the party is very clear on the powers of the deputy leader.
“It provides that the deputy leader shall perform all duties of the leader in his absence. He has all the powers of the leader in his absence,” he said.
However, Justice Moiloa asked Attorney Nthontho if Mr Leuta had the right to a pre-suspension hearing and whether he was afforded that right.
In response Attorney Nthontho said: “Yes, he is entitled to it, but that is not the case before this honourable court.
“However, he was given a chance to respond before he was suspended as a letter was written to him to show cause why he could not be subjected to disciplinary action.”
He further maintained there was no urgency on the application.
He said the reasons canvassed in the certificate of urgency were not sufficient to warrant the matter to be treated on urgent basis because Mr Leuta, although he was sworn in as an MP, was still a fulltime employee of the party.
“You cannot come to court and say you are prejudiced when you are a fulltime employee of the party.
“In his replying affidavit, he says, in fact, he has been sworn-in as an MP. So I don’t see any urgency here. The only urgency I see is a self-created urgency,” he charged.
He also said: “The applicant in his founding papers says there was never a committee meeting, but when we say there was a meeting, he (Leuta) then turns around and says, yes there was a meeting, but the meeting did not discuss his suspension.
“However, the issue here is whether the deputy leader acted ultra vires and the answer is, no!”