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Curtain comes down on eventful apex court session

Nat Molomo/Mohalenyane Phakela

THE much-delayed first session of the Court of Appeal for 2019 ended on Friday with a call for the apex court to revise the manner in which judgements are delivered.

The Court of Appeal President, Justice Kananelo Mosito, said the changes were necessary to allow judges enough time to freely voice their views, including dissenting views on any case before judgements are handed down.

“Every judge must be free to voice his views on any judgment on a particular case before penning down “I agree” when he concurs with the judgement of another judge,” Justice Mosito said.

“The apex court needs to meet with the Law Society of Lesotho and the Acting Chief Justice (’Maseforo Mahase) because the Law Society is of the view that we need to improve the jurisprudence. Their Lordships are of the view that this tradition of having a judge simply having to concur with other judges’ verdict has to be revisited.”

The first session of the apex court, which should have commenced on 15 April, only got underway last month after it was controversially suspended in April.

Mystery surrounds the real reason why the apex court did not commence on schedule in April with senior court officials and a cabinet minister giving differing accounts.

The Acting High Court Registrar, Pontšo Phafoli, the Public Relations Officer of the Judiciary, ’Mabohlokoa Mapikitla, and the Assistant Court of Appeal Registrar, Mosito Rabotsoa, all told the nation that the suspension of the apex court session was due to the lack of funds of funds.

Barely a week later, the Minister of Justice and Correctional Services, Mokhele Moletsane, refuted the trio’s claims that the apex court had been suspended due to lack of funds. Mr Moletsane said he was “shocked” by the suspension of the apex court, adding that Ms Phafoli and others had announced the suspension without his knowledge.

Although he did not know why it was suspended, Mr Moletsane said there was no way this could have been due to lack of funds as the judiciary had been awarded the full M97, 7 million that it requested from the national budget to fund its operations.

As the controversy raged on, the Law Society resolved to suspend all legal representation of their clients until the apex court was re-opened. Irate supporters of the ruling All Basotho Convention (ABC) even took the unprecedented step of ganging up with their rivals from the opposition Democratic Congress and the Lesotho Congress for Democracy (LCD) and staged a protest march to demand the ouster of Justice Mahase for failing to ensure the apex court was reconvened.

The Court of Appeal was finally opened last month it ran from 13 to 31 May 2019.

On the opening day of the Court of Appeal session, Justice Mosito took the opportunity to speak on its unexpected closure in April.

“There are a myriad reasons for the failure of the April session (of the apex court) and I need to mention that the blame cannot be placed on the door of the administration of the court, but elsewhere in government,” Justice Mosito said.

“There were clearly some unfortunate self-serving unpatriotic attempts by some individuals and bureaucrats aimed at stifling the functioning of this court. This emerged in the form of some alleged lack of funds for the holding of the court session, notwithstanding that the parliament had just passed the budget for the financial year 2019/2020. Who could be so naïve as not to see what is happening?

“We must however, unreservedly express our appreciation at the protesting stance taken by the leadership and membership of the Law Society of Lesotho against the aforementioned unfortunate egotistic and unpatriotic attempts aimed at stifling the functioning of the courts.”

The Court of Appeal bench comprises of justices Mosito, Acting Chief Justice, ‘Maseforo Mahase and three foreign judges, Philip Musonda, Petrus Damaseb and Moses Chinhengo.

When it finally got underway, the apex court dealt with some high profile cases, among them the power struggle in the ruling All Basotho Convention (ABC).

In a major victory for the Professor Nqosa Mahao-led faction of the ABC, the Court of Appeal on 24 May rescinded Acting Chief Justice Mahase’s 8 May judgement which gave control of the ABC to the old national executive committee (NEC) that was ousted at the party’s February elective conference.

The apex court also referred the legal battle for the control of the ABC back to the High Court which began hearing the case last Tuesday and not on the 14th of June as Justice Mahase had initially ruled. Furthermore, the apex court directed that the case should be heard by a different judge and not Justice Mahase who the Mahao faction accuses of dragging her feet in the matter.

Prof Mahao, who had been dealt a body blow by Justice Mahase when she nullified his and others’ election to the ABC’s new NEC, appealed the controversial decision in the Court of Appeal which heard the arguments on the 24th of May and delivered its verdict that same day.

The fractious ABC has not known peace as it was turned into a veritable theatre of war between the two factions which emerged in the run-up to and in the aftermath of the party’s 1-2 February 2019 elective conference.

At that conference and against all odds, including the disapproval of the party leader and Prime Minister Thomas Thabane, Prof Mahao was elected deputy leader of the party.

However, he and his colleagues have not been able to assume control of the party after their election was flatly opposed by the old NEC which rejected Prof Mahao on the grounds that he was an “upstart” who could not be allowed to deputise Dr Thabane in a party they formed in 2006.

Prof Mahao had clinched the coveted post ahead of party stalwarts, Finance Minister Moeketsi Majoro, Public Works and Transport Minister Prince Maliehe and former party chairperson, Motlohi Maliehe. As deputy leader, Prof Mahao became the frontrunner to succeed Dr Thabane in both party and government when the veteran leader eventually calls it a day.

Others who were elected into the new NEC are Dr Thabane’s son-in-law, Lebohang Hlaele (secretary general), Samuel Rapapa (chairperson), Chalane Phori (deputy chairperson), Nkaku Kabi (deputy secretary general), Tlali Mohapi (treasurer), Likhapha Masupha (secretary), Montoeli Masoetsa (spokesperson) and ‘Matebatso Doti (deputy spokesperson).

But Prof Mahao and the rest of the ‘new’ NEC’s election was subsequently challenged in the High Court by the trio of prominent ABC legislators Habofanoe Lehana (Khafung), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe).

The trio filed a court application on 11 February seeking an order to nullify the outcome of the ABC’s elective conference on the grounds that the polls were marred by “vote rigging”.

And with all eyes trained on the much-postponed case, Acting Chief Justice Mahase stunned all and sundry on 8 May 2019 when she went on to deliver judgement in a separate but similar application brought before her by the little-known trio of ABC members, Motseki Lefera, ’Matumisang Ntiisa and Martha Makhohlisa.

She ruled that the old NEC should remain in office in an interim capacity for a year and use the time to amend the ABC constitution to provide for the holding of NEC elections. The judgment has earned Judge Mahase a lot of flak with her critics insisting she is betraying the principle of impartiality required of all judges by showing open hostility against Prof Mahao.

Dissatisfied with what he condemned  as a “fake judgement”, Prof Mahao and his faction lodged an appeal with the apex court for the rescission of Justice Mahase’ 8 May 2019 default judgement nullifying  their election.

The applicants in the Mahao faction’s lawsuit were members of the ABC’s NEC which was elected in February, Lebohang Hlaele, Matebatso Doti, Montoeli Masoetsa and Samuel Rapapa.

The respondents were Messrs Lehana, Sello and Mohapinyane as well as Mr Lefera, Ms Ntiisa and Ms Makhohlisa.

The apex court also presided over and upheld the Ministry of Small Business, Cooperatives and Marketing’s appeal against the 4 April 2019 High Court judgement which nullified the controversial 2018 regulations which prohibited farmers from selling their produce from outside Lesotho as they had done for 44 years until 2018.

The next session of the apex court is scheduled to commence on 14 October 2019.


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