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ABC’s NEC sues Justice Mahase

Mohalenyane Phakela

EMBATTLED All Basotho Convention (ABC) deputy leader Professor Nqosa Mahao and four other “expelled” members of the ruling party’s national executive committee (NEC) have filed an appeal in the Court of Appeal to stop Acting Chief Justice ‘Maseforo Mahase from presiding over their High Court appeal against their “expulsion” from the ABC by party leader and Prime Minister Thomas Thabane.

The others who were last month expelled from the ruling party by Dr Thabane along with Prof Mahao are Lebohang Hlaele (secretary general), Samuel Rapapa (chairperson), Montoeli Masoetsa (spokesperson) and his deputy Matebatso Doti.

The quintet, who were “expelled” for alleged insubordination after they convened and addressed rallies in apparent defiance of Dr Thabane’s orders for them not to do so, want Justice Mahase to be declared to be in contempt of the apex court after she presided over a High Court case that was brought against them by Dr Thabane and ABC deputy secretary general Nkaku Kabi.

Over a fortnight ago on 5 July 2019, Justice Mahase presided over the case and granted Dr Thabane and Mr Kabi’s application for an interim interdict barring Prof Mahao and his four allies from holding a special conference which would have expelled Dr Thabane and other senior officials from the ABC. Justice Mahase also ordered that the quintet should not convene and address ABC rallies, wear party regalia and present themselves as members of the ABC’s NEC until she has ruled on Dr Thabane and Mr Kabi’s application for a final order for the five to be declared expelled from the party.

Prof Mahao and his allies were not only peeved by the adverse judgement but also by the manner in which it was issued. Not only did Justice Mahase turn down their application for her to recuse herself from the case that had been brought against them by Dr Thabane and deputy secretary general Nkaku Kabi, they were also left seething by the judge’s refusal to hear the case in an open court.

In their latest appeal in the Court of Appeal, the five argue that Justice Mahase acted contrary to the provisions of the Judiciary Act and the Court of Appeal orders, including the 24 June order which directed the High Court registrar to be the one allocating cases not Justice Mahase.

They further argue that Justice Mahase misdirected herself by refusing to recuse herself from the case brought against them by Dr Thabane and Mr Kabi and that she went on to issue orders without affording their lawyers a hearing. Their three lawyers are Advocates Koili Ndebele, Khotso Nthontho and Dr Thabane’s daughter, Mabat?oeneng Hlaele. Adv Hlaele is Mr Hlaele’s wife.

“The learned judge (Justice Mahase) erred and misdirected herself by allocating the matter to herself and the other two judges contrary to peremptory provisions of the Administration of Judiciary Act and decided cases by this court (Court of Appeal) and the High Court,” the quintet state in their apex court papers.

“She misdirected herself by declining and disregarding to deal with the application for her recusal thereby dismissing such an application despite the fact that there were still clear reasons vitiating the impartiality of the Acting Chief Justice.

“The learned judge misdirected herself by granting the orders as she did when similar issues and matter were pending before the High Court in CIV/APN/47/2019. She erred by granting interim court order without giving the appellants an opportunity to be heard and further confirmed the illegal acts of the leader (Dr Thabane) of the first respondent (ABC) which are contrary to the (ABC) constitution.”

The CIV/APN/47/2019 refers to the application which was brought to the High Court on 11 February 2019 by three ABC legislators, Habofanoe Lehana (Khafung), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe). The trio wanted the High Court to nullify the results of the ABC’s February 2019 elections which ushered Prof Mahao and others into the party’s NEC. They argued that the elections were characterised by massive vote rigging. Their application was however, dismissed by the High Court on grounds that it lacked merit and the alleged irregularities would not have altered the outcome of the party polls.

The matter had been pending before Justice Mahase since it was filed until 24 May when the Court of Appeal ordered the High Court registrar to allocate it to another judge on 28 May 2019.

Justice Moroke Mokhesi was assigned the matter on 27 May by the High Court registrar as per the Court of Appeal order.

However, Justice Mahase did not accept the apex court ruling and she demanded the case file from the registrar and gave her own order that Justices Sakoane Sakoane and Thamsanqa Nomngcongo should join Justice Mokhesi in presiding over the case. Prof Mahao and his colleagues argue in the apex court appeal that by so doing, Justice Mahase acted in contempt of the 24 May 2019 Court of Appeal order that the case must be heard any other judge besides her.  They argue that she should not have allocated judges to the case contrary to the Judiciary Act which they say gives that responsibility to the High Court registrar.

It has been a turbulent first six months of 2019 for Justice Mahase who has been accused of bias by the Mahao faction, its supporters as well as the opposition.

In an unprecedented show of unity, supporters of the Mahao faction teamed up with those of the opposition Democratic Congress (DC) and Lesotho Congress for Democracy (LCD) in May this year and staged a protest march to demand her ouster for allegedly being a willing tool of the government in its alleged quest to undermine the independence of the judiciary.

But an angry Justice Mahase replied by saying she was having none of it and she threatened legal action against the protestors.

On his part, Mr Hlaele has vowed to fight Justice Mahase and ensure she is never appointed to the top post on a substantive basis.

He said he was not scared of the acting chief justice and he has also his fight with her to the Judicial Service Commission (JSC) to discipline her over her alleged misconduct.


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