…as court rejects recusal bid in Mosito case
Moorosi Tsiane
The National University of Lesotho (NUL) Council has suffered a legal setback after the High Court dismissed its application to have all judges recuse themselves from a case brought against it by fellow judge, Kananelo Mosito.
Professor Mosito is challenging the decision by the Council to recruit a new Vice-Chancellor before the expiry of incumbent Professor Olusola Isaac Fajana’s contract.
Justice Molefi Makara on Thursday ruled against the Council, affirming that High Court judges operated independently under the leadership of Chief Justice Sakoane Sakoane.
He dismissed concerns that NUL Pro-Vice-Chancellor Professor Mosito – who is also President of the Court of Appeal – could influence the judges assigned to hear the matter.
The ruling marks another legal victory for Prof Mosito. On Wednesday, Justice Makara had already dismissed the Council’s argument that the High Court lacked jurisdiction, clearing the way for the case to proceed.
Prof Mosito, who was suspended from the university by the Council last week, approached the High Court early last month seeking to block the Council from recruiting a successor to Prof Fajana while he remains in office. He argues that the Vice-Chancellor’s term only ends in July 2026, and that any recruitment process should begin only once the position becomes vacant.
He contends that the Council’s actions violate Section 16(2) and (6) of the National University of Lesotho Order, 1992, which he interprets as allowing recruitment only after a vacancy has arisen—effectively from August 2026.
The Council has strongly opposed the application. Through its chairperson, Dr Khabele Matlosa, it not only defended the recruitment process but also raised concerns about Prof Mosito’s position within the judiciary.
Initially, the Council sought to block the case by arguing that the dispute was a labour matter beyond the High Court’s jurisdiction. That argument was dismissed, prompting the Council to file an interlocutory application seeking the recusal of all High Court judges on grounds of perceived bias. Since Prof Mosito leads the appeal court, all the High Court judges are subordinate to him in terms of rank and they could hardly be expected to be impartial in a case involving their “boss”, the Council had argued, asking for the appointment of foreign judges to hear the case.
Representing the Council, Advocate Mamello Makau, argued that recusal was necessary to preserve public confidence in the judiciary, even in the absence of proven bias.
“My Lord, even without actual prejudice, the circumstances justify recusal. The judicial hierarchy, in the eyes of a reasonable person, would still warrant it,” she submitted.
Adv Makau further argued that longstanding personal and institutional relationships between Prof Mosito and High Court judges could create the appearance of compromised independence.
“The other factor, My Lord, is the personal and institutional relationships that may have been formed over the years between Prof Mosito, as President of the Court of Appeal, and the judges of the High Court. We submit that this creates an appearance of compromised independence,” she said.
However, Prof Mosito’s lawyer, Adv Dominic Metlae, dismissed these claims as speculative and unfounded. He argued that the “reasonable person” standard must be grounded in legal understanding rather than conjecture.
“A reasonable person must be informed in law. There is a clear history of Prof Mosito losing cases in both the High Court and the Court of Appeal, which dispels any notion of undue influence,” he said.
Adv Metlae also rejected claims that Prof Mosito held sway over High Court judges, stressing that they were independent.
“The argument that High Court judges are ex-officio members of the Court of Appeal does not hold water. They are not under Prof Mosito’s leadership. Members of the High Court are appointed by the Judicial Service Commission and report to the Chief Justice. Prof Mosito has no influence whatsoever over them,” he argued.
After hearing arguments from both sides, Justice Makara adjourned proceedings for about two hours before returning with his ruling. He dismissed the recusal application, allowing the main case to proceed.
The matter is set to continue on Tuesday.