MASERU — A veteran attorney could be struck off the roll for “gross” professional misconduct after he instructed opposing advocates in a protracted court case.
Attorney Tsotang Monyako instructed advocates Koili Ndebele and Tekane Maqakachane to appear in court for the Lesotho Public Motor Transport Company (LPMTC) in its case against businessman Makhoabe Mohaleroe.
At the same time, Monyako instructed Advocate Letuka Molati to represent Mohaleroe in the same case.
Mohaleroe was challenging the LPMTC’s decision to remove him from the company’s board of directors because of his criminal record.
Commercial Court judge John Lyons in a ruling on Wednesday said he was “concerned about the instructing attorney (Monyako) and an apparent serious conflict of interest”.
“I find it quite a puzzle that I have directed it to the president of the Law Society to work out,” Justice Lyons said.
“If this is so, Mr Monyako has committed a gross act of professional misconduct that, in an accountable system, should require him to show cause why he should be allowed to remain on the roll.
“Monyako is representing the company in action to have Makhoabe Mohaleroe thrown out, then, at the same time, representing Makhoabe Mohaleroe in an action designed to defeat the company’s case.”
Justice Lyons said he believed Monyako did it “deliberately . . . behind the company’s back by making the application ex parte“.
In an ex parte application, according to the law, an applicant urgently seeks relief from court without first notifying the other interested parties in the case because any delay to get the relief would be prejudicial to him.
Monyako instructed Molati to file an ex parte application in which Mohaleroe was asking the High Court to declare that he was “qualified to act as a director of companies in terms of Section 144 . . . of Companies Act . . .”
“Makhoabe Mohaleroe has used the declaration as his weapon to defeat the company — the very company Mr Monyako purportedly instructed Mr Ndebele and Mr Maqakachane to represent,” Justice Lyons said.
Mohaleroe’s application to be declared a director was filed in the High Court after the LPMTC’s newly appointed board of directors discovered that his criminal record disqualified him from being a director of any company.
Monyako did not enjoin the LPMTC despite knowing its position in the case.
Justice Lyons said Monyako knew the position of the LPMTC’s newly appointed board of directors because he was the one who instructed Advocate Ndebele to bring action to the High Court to compel the Registrar of Companies to register the board.
The Registrar of Companies had refused to register the LPMTC’s new board in favour of Mohaleroe and his son, Pule Mohaleroe, who claimed ownership of the company.
Justice Lyons said Mohaleroe could not deny that he knew of the LPMTC’s position.
“The same firm of lawyers was his attorney of record on the application as well as being the attorney of record acting for the company,” the judge said.
“I have also directed the Registrar (of the High Court) to send a copy of this judgment and copies of the record to Mr (Zwelakhe) Mda, the president of the Law Society.
“The Law Society is the body to deal with this puzzle.”
Mda told the Sunday Express yesterday that he had received a copy of Justice Lyons’ judgment and the Law Society’s council would examine it carefully before reaching any conclusion.
He would not be drawn into saying whether Monyako would be struck off the roll or not.
“That will be prejudging him,” Mda said.
“The council will call all concerned parties to give their side of the story before any conclusion can be reached.”
He said Justice Lyons has made his own observation as a judge but that did not oblige the Law Society to corroborate his findings.
“We are an independent body and that is why the honourable judge has referred the matter to us,” Mda said.
“We are not a rubberstamp of anybody and therefore we will have our own independent conclusion after we have dealt with this matter.”
Meanwhile, Justice Lyons also found that Mohaleroe and his lawyers had not dealt in good faith with the High Court and the Court of Appeal in previous cases.
The Court of Appeal had confirmed Mohaleroe’s directorship.
Armed with the Court of Appeal’s ruling, Mohaleroe then approached the High Court seeking to be declared a director of the LPMTC.
The High Court granted him his wish.He was countering the LPMTC board’s argument that he was legally disqualified.
In his affidavit, Mohaleroe said he only knew after the Court of Appeal judgment that by law he did not qualify to be a director.
However, Justice Lyons said he doubted Mohaleroe’s explanation to be “truthful”.
The judge told Mohaleroe and his lawyers to go back to the Court of Appeal and inform the court that at the time it confirmed his directorship he was not qualified by law.
“The Court of Appeal may not have proceeded with the appeal. The appeal focused on his capacity as a director of the company,” Justice Lyons said.
“It was his duty to inform the court of his disqualification.”
Justice Lyons said even if Mohaleroe had found out the legal implications of his criminal conviction after the Court of Appeal reinstated him as a director, he still had a “clear obligation to inform (the court) now that he does know”.
The judge also rebuked Mohaleroe for touting the Court of Appeal decision as justification for his directorship.
“The Court of Appeal will deal with it as they see fit,” Justice Lyons said.
“I have had the registrar send a copy of this judgment to the Court of Appeal, so their lordships will be expecting counsel and their instructing attorneys.”
The Court of Appeal will sit in October.
“This is most important and has to be attended to urgently,” Justice Lyons said.
He has also forwarded his judgment to High Court judge ’Maseshophe Hlajoane who granted Mohaleroe leave to be a director.
He said Justice Hlajoane was not told the whole truth.
“I have serious concerns about the manner in which the declaration from Hlajoane J was obtained,” Justice Lyons said.
“Counsel and the attorney need to understand that their obligation to the court is paramount and greater than the obligation to the client.”
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