Mohalenyane Phakela
ACTING Chief Justice ‘Maseforo Mahase was recently involved in dramatic exchanges with the lawyers of the defendants in a lawsuit which was brought by two cabinet ministers and a legislator from the All Basotho Convention (ABC) seeking the nullification of the results of the party’s recent national executive committee (NEC) elections.
Justice Mahase was livid with the lawyers who she accused of undermining her authority. This was after they disobeyed her order to appear before in chambers in the case in which ministers Habofanoe Lehana (Trade and Industry), Keketso Sello (Mining) and Rothe constituency legislator Mohapi Mohapinyane are seeking the nullification of the results of the ABC’s elective conference.
Mr Lehana contested and lost the polls for the deputy secretary general’s post which was won by Health minister Nkaku Kabi.
Mr Sello contested and lost the election for the treasurer’s post which was won by Tlali Mohapi.
In addition to the nullification of the results, the trio also want the court to order fresh elections within three months of the finalisation of their court application.
The ABC, the ABC’s NEC, the Lesotho Council of Non-governmental Organisations (LCN), Professor Nqosa Mahao (who was elected ABC deputy leader) and other candidates in the ABC polls are cited as the first to 44threspondents in the lawsuit. The LCN are cited in their capacity as the entity that ran the polls on behalf of the ABC and subsequently announced the new NEC line-up.
The lawyers’ gripe with the Acting Chief Justice is that just like on Friday she insisted on hearing the case in chambers just as she had done on the 13th of February where she ruled that the new NEC should not assume power until she had finalised the case.
The lawyers argue that Justice Mahase should have heard the case in open court like she did with other cases. They said this was necessary as the case was of great public interest and their clients and the public wanted to follow proceedings and not just be informed about what had transpired behind closed doors.
The case had initially been set for 9.30am on Friday and it kept on being postponed until about 5pm when the Deputy Registrar of the High Court, Mojela Shale, entered the courtroom to notify the applicants and defendants’ lawyers that Justice Mahase wanted to see them in her chambers.
But the five lawyers who represent some of the defendants refused to budge, saying that they wanted the matter to be heard in an open court as it was of public interest and that this was what their clients were demanding.
“Our clients have lost trust in us because the matter has been held in secret and we have always come back as the bearers of bad news of the decisions which were reached in chambers,” one of the defendants’ lawyers’, Advocate Koili Ndebele, said.
“Our reputations are at stake here therefore we ask you to tell Mme Mahase to come and address us in an open court so that our clients can hear for themselves what is transpiring. We do not understand why the Chief Justice says she cannot come to the court because people keep booing her, it is her courtroom after all and she has to take charge of it. We have also done our part by asking our clients to keep order throughout the proceedings.”
The lawyers were also unhappy with the fact that Justice Mahase opted to hear another case ahead of theirs and this was in an open court.
In the aftermath of the defendants’ lawyers’ refusal to go into her chambers, Justice Mahase eventually came into the courtroom and accused the five lawyers of disobeying her orders.
“Counsels, earlier today I said I would hear your matter at 4pm but I never specified where our meeting would take place. I was told by my registrar that you refused to heed my order even though you did not know why I called you into chambers. I will put it on record that you defied the order.
“When we met on Wednesday, I made an order that we meet today at 9:30am but some of you decided to arrive at 9:45 and 9:50am while I had deferred other matters I had to attend to.
“I had also ordered the counsels (defendants’ lawyers) to file their pleas and written submissions during the course of the day on 14 February 2019 but some have not done so while others only served me today. I want written affidavits from those who did not file explaining why they acted in that manner,” Justice Mahase said.
One of the defendants’ lawyers, Adv ‘Mabat?oeneng Hlaele, replied by saying that they never disrespected her but were pleading with her to heed their clients’ grievances.
“We humbly requested that you come and address the matter in an open court as a matter of public interest and that our clients wanted to witness whether we were actually doing what they pay us to do,” Adv Hlaele said.
Justice Mahase further vented her frustrations at how the lawyers burdened the courts through late submissions of required documents yet they demanded that courts hear their cases speedily. She said she should not be “treated like a robot”.
“One of the counsels (defendants) filed his answering affidavit at 9:24am today which was six minutes before the time I had ordered that we meet. Another one was filed this afternoon at 3:12pm which is also contrary to my order of 13 February 2019. Both these documents are bulky and I have not had time to go through them.
“Even if it is said I am strong I cannot be expected to have read these documents by now. Even a computer cannot work under such pressure, I am not a robot. I have never seen this behaviour since assuming the post of being a judge.
“I know what it means when it is said a matter is urgent and I have side-lined so many cases in order to deal with the urgent matters but you have not been fair to me yet you expect me to be fair to you. I do not work on this case alone and even if that was the case, I would have not finished reading the submissions. I have seven files on my desk which I have to allocate before Monday and I cannot do so while I am being treated like this.
“Common sense which is not always common should be applied. I will not hear this matter now because I am taking the files home so that I can go through them in order for me to be in a position to flow with you while you are arguing. I cannot be expected to make sound judgements while I am in the dark on what you wrote in your submissions,” Justice Mahase said.
Adv Hlaele once again addressed the court and asked Justice Mahase not to punish everyone for the errors of those that did not file for reasons unknown to those who obeyed the court’s order.
“In compliance with your order of 13 February 2019 Your Ladyship, all the counsels before you today have filed and I do not understand why we cannot be heard just because other people have not filed their affidavits and are not before court, for reasons we do not know. Our clients expect to be heard because they complied with your order.
“The documents which I filed before you are basic law and I am arguing the points of law and that should be heard before the actual merits may be argued. On Wednesday you granted an order in the applicants’ favour without them having to motivate their application. Should you decide to extend the rule of 13 February 2019, we ask that we be heard now so that we can argue that rule which we want to be discharged. As a matter of fact, the rule lapsed today at 9:30am as per the order you made and should you revive it, we should be heard too.”
Adv Hlaele further said that it was unusual for lawyers to be asked to file affidavits for being late as she had never experienced that since she began practising in 1996.
For his part, of the applicants’ lawyers, Rapapa Sepiriti, asked that he be given until 22 February 2019 to reply to the answering affidavits of the defendants’ lawyers.
“I pray the court that I be given until Friday 22 February for me to be able to go through the affidavits and respond to them and I will file my heads of argument the following Monday (25 February 2019).
“I also have another case on Tuesday which I have to prepare for hence I ask the court to extend the rule and I be given till Friday 22 February,” Adv Sepiriti said.
Another defendants’ lawyer, Adv Tebello Thabane, argued that they were only given 24 hours to file their answering affidavits therefore Adv Sepiriti should do the same.
“According to your order of 13 February 2019, you said that we should file all the documents in the course of 14 February which was within 24 hours since we got your order. It is only fair that Adv Sepiriti files his documents on 18 February 2019 and not on 22 February as he asks. He is the one who applied for this matter to be heard on urgent basis so it should be treated with urgency,” Adv Thabane said.
Justice Mahase replied by saying that Adv Sepiriti would be given until 22 February to respond to the defendants’ affidavit.
“Application of stay extension is granted and Adv Sepiriti has till 22 February 2019 as prayed. Court adjourned,” Justice Mahase ordered without explaining when the case will resume.
On 29 January 2019, Justice Mahase was involved in heated exchanges with the audience who heckled her over her perceived tardiness in handling the ABC’s Koko-koro Constituency Committee’s case against the disqualification of Prof Mahao from the party’s leadership elections.
On that day, the visibly irate Justice Mahase threatened to eject the hecklers from the courtroom and proceed with the case with only the media in attendance.
Thereafter, it was the turn of the Koko-Koro committee’s lawyer, Advocate Khotso Nthontho, to feel the wrath of the Acting Chief Justice.
This was after Adv Nthontho told Justice Mahase that she had not complied with a directive of the Court of Appeal to have heard the case and delivered judgement by 2pm on 29 January.
Justice Mahase replied by accusing Adv Nthontho of “personally attacking her” and ignoring the fact that she had “gone the extra mile” by attending to the case at 11am on 29 January instead of 2pm which had been stipulated by the Court of Appeal.
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