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Advantage Thabane as Justice Mahase blocks ABC conference

Mohalenyane Phakela

ALL Basotho Convention (ABC) deputy leader Professor Nqosa Mahao and his faction were on Friday dealt a massive blow by Acting Chief Justice ‘Maseforo Mahase who issued an order barring them from holding a special conference to decide on whether or not to expel “suspended” ABC leader and Prime Minister Thomas Thabane and other senior party officials.

The judgement was handed down after Dr Thabane and ABC deputy secretary general Nkaku Kabi last Wednesday petitioned the High Court to bar the special conference which the Mahao camp had pencilled in for yesterday in Maseru.

The  special conference had been called by the Mahao faction to deliberate on disciplinary measures to be taken against Dr Thabane, Mr Kabi and former secretary general Samonyane Ntsekele.  The Mahao faction, whose election at the February 2019 elective conference has been upheld by the courts in a 13 June 2019 judgement, wanted to use the special conference to expel the three from the ABC. The faction said it had suspended them, with Dr Thabane being the last to have been suspended for “causing confusion and fanning sectarian tendencies within the ABC”.

The conference also aimed to tackle the ABC infighting in the wake of Dr Thabane’s refusal to recognise Prof Mahao as his deputy.

However, the Mahao camp was on Thursday dealt a massive blow after Justice Mahase granted Dr Thabane and Mr Kabi’s prayers to stop the conference. The respondents in Dr Thabane and Mr Kabi’s application were the “expelled” Prof Mahao (deputy leader), Lebohang Hlaele (secretary general), Samuel Rapapa (chairperson), Montoeli Masoetsa (spokesperson) and Matebatso Doti (deputy spokesperson).

“It is ordered that the respondents and/or their supporters or agents are interdicted and restrained from convening, holding and/or addressing the intended special conference of the All Basotho Convention (ABC) scheduled for the 6 July 2019 pending the finalisation of this matter,” Justice Mahase ruled in her interim order.

Justice Mahase’s interim order also barred Prof Mahao and his faction of the ABC’s national executive committee (NEC) from presenting themselves as members of the ABC’s NEC.

The acting chief justice further ruled that “the respondents and/or their supporters or agents are restrained and interdicted in any manner whatsoever from calling and/or convening any rallies of the All Basotho Convention pending the finalisation of this matter”.

“The respondents are restrained and interdicted from using in any manner whatsoever any colours, flags, emblems of the All Basotho Convention.”

Justice Mahase’s latest judgement effectively hands Dr Thabane the initiative in the vicious struggle for the control of the major party in the governing coalition.

It is a huge blow for the Mahao faction which has been using the rallies as a platform to present their case for control of the ABC to the party supporters countrywide.

Just as she did on 7 May this year in the previous case regarding the ABC’s intractable power struggle, Justice Mahase issued her latest order in chambers.

The latest order was also issued as a default judgement due to the absence of the Mahao camp’s lawyers who boycotted in protest over Justice Mahase’s refusal to hear the matter in an open court.

The matter was heard on Thursday in Justice Mahase’s chambers. The Mahao faction’s lawyers alleged that Justice Mahase refused to come into open court on the grounds that the courtroom was cold. The Mahao faction lawyers then boycotted the in chamber proceedings, leaving only the applicants’ lawyers to motivate their application for the stay of the special conference hence the default judgement.

Before then, the Mahao faction and their lawyers unsuccessfully tried to have Justice Mahase recuse herself from the case, alleging that she had a personal interest in matters involving them and was there likely to be biased in her judgement. (See story on Page 4).

In a subsequent interview with the Sunday Express, Mr Masoetsa said that they would obey Justice Mahase’s interim order. He however, said they were pinning their hopes for a reversal of the acting chief justice’s ruling in a separate but related application they filed before the High Court which will be heard on 22 July. Justice Mahase will not be hearing the quintet’s 22 July case to have Dr Thabane held in contempt of court for purporting to expel them despite the High Court’s 12 June 2019 judgement declaring that they had been properly elected at the party’s February 2019 elective conference.

In their 22 July application, Prof Mahao and his colleagues are also seeking to have their purported expulsions revoked as well as to have Dr Thabane barred from making unilateral decisions and interfering with the work of the new NEC. When their case was first heard on 26 June 2019, the High Court did not grant their application but instead set 22 July 2019 as the date for hearing the case. In refusing to grant all the reliefs sought, the judges argued that the Mahao faction, whose election the court has legitimised, had not exhausted all internal processes before coming to court.  The judges also commented that Dr Thabane had no powers to expel ABC members. In keeping with the spirit of those remarks the Mahao faction sought to press ahead with the special conference and formalise the expulsions of Messrs Thabane, Ntsekele and Mahao from the ABC only for them to be stopped in their tracks by Justice Mahase’s Thursday ruling.

Commenting on the latest developments, Mr Masoetsa said, “we obey court orders therefore will suspend the special conference for now in line with Justice Mahase’s ruling”.

“However, we will not wait for the 27 July date which the Acting Chief Justice (Mahase) has set for the case (by Dr Thabane and Mr Kabi). We are relying on the other case which will be heard on 22 July which will determine the legitimacy of our expulsion.

“We believe Justice Mahase has a personal vendetta against us and we do not know why. She has always been ruling against us even in previous matters. We believe our 22 July case will be result in a fair judgement because the bench does not include Justice Mahase and it will be decided by three other judges (Justices Thamsanqa Nomngcongo, Sakoane Sakoane and Moroke Mokhesi).

“If the 22 July case goes in our favour, it will automatically render the application to block the special conference an academic matter of no legal effect. That would give us the power to set another date for the special conference,” Mr Masoetsa said.

Justice Mahase has been at the centre of a see-saw battle for control of the ABC in the run-up to and after the party’s 1-2 February 2019 elective conference which ushered in Prof Mahao into the party’s NEC despite the expressed wishes of Dr Thabane who argued that Prof Mahao was a newcomer to the party who should not be allowed to succeed him ahead of more seasoned ABC stalwarts.

Justice Mahase first ruled against Prof Mahao’s participation in the ABC’s February elective conference only for her judgement to be overturned at the last minute by a Court of Appeal bench which included the apex court’s President Kananelo Mosito.

The acting chief justice once again made headlines on 8 May when she nullified the ABC’s elective conference which ushered in Prof Mahao and others to the ABC’s NEC.

Justice Mahase delivered the default judgement in an ex parte (one sided) application that was filed and moved by Advocate Thulo Hoeane on behalf of his clients, Motseki Lefera, ’Matumisang Ntiisa and Martha Makhohlisa.

This was despite the fact that she still had not ruled over an older, similar case that had been filed before on 11 February by the trio of ABC legislators, Habofanoe Lehana (Khafung constituency), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe) who sought the nullification of the election of Prof Mahao and others, claiming the 1-2 February polls were marred by gross irregularities including “massive vote rigging”.

It remains to be seen how the long-running ABC power struggle will be resolved as Justice Mahase has set the 27th of July as the date where she will preside over Dr Thabane and Mr Kabi’s application for a final order confirming the expulsion of Prof Mahao and others from the ABC.

Before then on 22 July, Justices Nomngcongo, Sakoane and Mokhesi will hear the Mahao faction’s application to have Dr Thabane barred from expelling them from the party and interdicted from making unilateral decisions and interfering with the work of the new NEC.

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