Court of Appeal adamant on Prof Mahao challenge
THE COURT of Appeal insists that the case in which the All Basotho Convention’s (ABC) Koro-Koro constituency committee is challenging the High Court dismissal of its application for the nullification of the party’s disqualification of Professor Nqosa Mahao from contesting the ABC’s deputy leader’s post, will be heard as planned on 22 January.
The Court of Appeal Assistant Registrar Mosito Rabotsoa on 15 January 2019 wrote to lawyers representing the ABC’s NEC and the party’s Koro-Koro constituency committee advising them that the latter’s appeal would be heard in the apex court on 22 January 2019.
This did not go down well with the ABC’s NEC whose lawyer, Attorney Tumisang Mosotho, wrote back to say that the matter should not jump the queue and be heard in the current Court of Appeal session ahead of several other cases.
Prof Mahao was nominated by the Koro-Koro constituency committee to contest the deputy leader’s post at the ABC’s elective conference set for 1 and 2 February 2019.
He was set to contest against Finance Minister Moeketsi Majoro, party chairperson Motlohi Maliehe and the acting incumbent, Prince Maliehe, who is also Transport and Public Works Minister.
However, the NEC disqualified Prof Mahao on the grounds that he had not “served at the party’s branch and constituency levels for at least 24 and 36 months” respectively as required by the party’s constitution.
The Koro-Koro constituency committee however, insists that Prof Mahao meets the requirements to stand in the elections. It took the matter to the High Court which dismissed it application on 13 January. The committee has since appealed to the Court of Appeal whose Assistant Registrar Mosito Rabotsoa on 15 January wrote to say the appeal would be heard on 22 January.
The Koro-Koro committee wants the court to “review, correct and/or set aside” the ABC’s NEC’s decision to disqualify Pro Mahao from the elective conference.
It also wants the court to nullify its own suspension by the ABC for indiscipline after it convened a press conference to support Prof Mahao. It further wants the ABC’s directive to bestow the responsibility of running the Koro-Koro women’s and youth league committees to the party’s secretary general’s office to be reviewed and set aside.
The Koro-Koro committee further wants clause 5 (e) of the ABC’s constitution, which directs that a member of the party shall automatically forfeit their membership the moment they take the party to court, declared null and void because it contravenes the national constitution which guarantees everyone’s right of access to national courts.
Prof Mahao, Transport Minister Maliehe, outspoken legislator and party chairman Maliehe, Finance Minister Majoro, the Executing Working Committee of the ABC, the ABC National Executive Committee (NEC) and the ABC are cited as the first to the seventh respondents respectively in the case.
In the 15 January letter, Court of Appeal Assistant Registrar Rabotsoa stated that the apex court’s president Kananelo Mosito had directed that the case should be heard as an urgent appeal on 22 January.
The Koro-Koro committee was ordered to file its record of proceedings and heads of argument on 17 and 18 January 2019 respectively.
The respondents were directed to file their heads of arguments on or before 21 January (tomorrow) but their lawyers did not take kindly to the directive.
Attorney Mosotho wrote back to say that the matter should not jump the queue and be heard in the current Court of Appeal session ahead of several other cases.
“You will certainly appreciate that the dispute herein has created a politically charged environment in the past days and in the interests of proper administration of justice, it is important that we all appear to be sensitive to such issues and handle the matter with utmost transparency expected of us as officers of court.
“Had your (Mr Rabotsoa’s) office solicited our representation in this regard, then it would have been known that we strongly object to have the matter enrolled in the current session,” part of Attorney Mosotho’s letter to Mr Rabotsoa states.
“We submit that it was completely irregular to have the issue considered on the basis of just a letter from Messrs K.J. Nthontho Attorneys (who represent the Koro-Koro committee). Whilst you (Mr Rabotsoa) and Messrs K.J. Nthontho are of the view that the matter is urgent, we submit that there are many other matters that are urgent that have not been enrolled in the current (Court of Appeal) session.
“We all know that the Court of Appeal could not sit in the past and invariably there (are) a number of appeals from the past that still await to be heard, including criminal appeals I suppose. Why should this appeal jump the queue? In our respectful submission, that will send a wrong message to our society,” Attorney Mosotho states.
He requested Mr Rabotsoa to ensure that the decision to have the matter heard on 22 January 2019 be reviewed and set aside, adding that they were prepared to meet with Justice Mosito to restate their position.
“I must make it categorically clear that the respondents are not just unwilling to have the matter heard, but the circumstances do not permit. Had the appellants followed proper procedures, and all other circumstances permitting, the respondents would of course be ready to have the matter heard during the current session,” Attorney Mosotho further states.
But Mr Rabotsoa is digging in and on 17 January he wrote back to inform Attorney Mosotho that the Court of Appeal would go ahead with the hearing as planned on 22 January.
“I have read your letter and the concerns raised therein. However, I am directed by the honourable president (Justice Mosito) to bring to your attention that, in the interest of justice and finality of the matter, you are expected to file (heads of arguments) as stated in my previous letter dated 15 January 2019.
“Kindly comply as this honourable court is reluctant to entertain any unnecessary postponements of the matters before it,” Mr Rabotsoa stated.