MASERU — Justice Tseliso Monaphathi has admitted he indeed borrowed vehicles from a director with MKM, the beleaguered financial company which has a plethora of cases before the High Court.
But the judge has denied he was forced to recuse himself from MKM cases, saying he had always been reluctant to handle the company’s court proceedings.
The Sunday Express last week reported he had been forced to withdraw from the cases after Chief Justice Mahapela Lehohla confronted him about the “potential conflict of interest that arose from him using an MKM vehicle when he was dealing with the company’s cases”.
Justice Monaphathi, 61, says he had voluntarily recused himself from the cases after the chief justice made him “realise” his conduct could raise questions about his impartiality.
“The chief justice advised me it was not safe to have a car belonging to people who have claims in the court,” Justice Monaphathi told the Sunday Express in an exclusive interview.
“He said a perception has been, could be, or will be created that I was biased.
“I agreed with him. I said chief I agree it was a mistake, let me take the car back.
“It was sound advice. I agreed almost readily.”
Justice Monaphathi says he had to write an affidavit, signed on April 13, stating the reasons he could not preside over MKM cases.
The main reason was his connection with Mothofela Ramakatsa, one of the MKM directors, who had been letting the judge use his cars.
Justice Monaphathi says he has known Ramakatsa for “close to 25 years” since the judge was a member of the Lesotho National Olympic Committee and the MKM director a senior official of the Volleyball Association of Lesotho.
“Everything was above board because my friendship with Ramakatsa has never been a secret,” the judge says.
“That man helps a lot of people and I know lots of big people go to MKM to ask for help including loans.”
He says he first asked Ramakatsa to help him with a “van” for the funeral of his house-maid who was to be buried at Ha-Ramaphiri in Masite, Mafeteng district.
Justice Monaphathi says the funeral happened sometime last November shortly after he had refused to hear an application by the Central Bank of Lesotho (CBL) for the liquidation of MKM.
“I refused to hear this application on the ground that prima-facie this application was prejudicial and unfair to the respondents while the same or similar relief was pending before (Justice) Guni,” the judge says in his affidavit.
The Sunday Express has a copy of the affidavit.
“After the said application my own lady helper passed away,” Justice Monaphathi continues.
“I approached MKM funeral house to conduct the funeral arrangements including providing a coffin and transport after payment of required fees.
“These fees only enabled provision of such coffin and transport.
“I needed another van to navigate the dry/desert terrain to Masite Ramaphiri Village where my helper was to be buried.
“It had to be a four-wheel (4×4) van.
“I made a request for special assistance from MKM. This came.”
Justice Monaphathi was given a “Nissan double-cab van”.
But after the funeral, the judge says he asked Ramakatsa if he could keep the vehicle for further use because his government-issued Mercedes Benz had been taken for service and repairs in Bloemfontein.
“After the funeral, with Mr Ramakatsa’s permission, I kept the car for more than a month,” the judge says.
“It was because my official vehicle went for the never-ending service and repairs to its petrol pump.”
Justice Monaphathi says he only returned the Nissan van when he got his official vehicle back.
But in February, the judge says, he approached Ramakatsa for help again.
This time he wanted a kombi to attend a church meeting in Kokstad in KwaZulu-Natal province, South Africa.
“I requested a kombi but this time he gave me a six-seater Mitsubishi station wagon which the chief justice eventually saw,” Justice Monaphathi says.
“He must have seen that car in the car park every day.
“But they knew about it because even the accountant would pay for the fuel I was using for that car.”
The judge says he kept the Mitsubishi vehicle for “almost two months” until Chief Justice Lehohla summoned him around “the end of March or early April”.
“He advised that it was unwise to use the MKM vehicle,” Justice Monaphathi says in his sworn statement.
“I was the first person who agreed with his Lordship. I returned the vehicle.”
Justice Monaphathi says sometime early this year he had been asked to set dates for the CBL’s application for liquidation against MKM.
He says he only reluctantly agreed to take on the case.
“An attempt was made to set down the said matter of the liquidation application by Central Bank against MKM, Mr Thebe-ea-Khale and others,” the affidavit says.
“I protested that I thought it was unwise for me to handle the matter by reason of my association with Mr Ramakatsa.
“I detailed Mrs Mothobi, assistant registar, to speak to the registrar.
“She reported to me that the pressure from the central bank’s lawyers was overwhelming.
“The registrar could not budge. The honourable chief justice was also consulted.
“The lawyers insisted. Despite that that lawyer approached with a view to setting down the matter.
“I merely and reluctantly acceded.”
After discussing the “conflict of interest” issue with the chief justice, the judge says, he was asked to confirm the dates set for the MKM case.
Justice Monaphathi says he felt like this time he was being put under pressure to handle the case yet the chief justice had advised him about the “perception” created or likely to be created because of his links to MKM.
He says he refused and decided to write an affidavit recusing himself from all MKM matters.
“My feeling is that I should be divested of presiding over all such cases including MKM and others,” the judge says in the sworn statement.
“I advised the assistant registrar and Mrs Mothobi on Thursday of 8th April 2010.
“They advised that the computer spread sheet did not reveal that the case was allocated to me.
“They advised in return however that instead of the said case being allocated to other judge the registrar and the chief justice insisted that I should hear the case.
“I find this shocking to say the least.
“My intention is to recuse myself whenever the case is placed before me.
“Once more why can other judges of the High Court not hear the case?”
This paper has it on good authority that some High Court judges had invested “huge amounts in MKM” and are thus reluctant to hear cases involving the company.
“I do not see how ethically I would hear the case in the circumstances,” Justice Monaphathi says.
“It is against my conscience.”
Last year High Court judges were told to look for alternative transport whenever their official vehicles broke down or were taken for routine service.
Previously the government would hire courtesy or relief cars in such instances.
This paper reported last year how Justice Maseforo Mahase had to hitch-hike to work when her official vehicle had been taken for repairs.
Other judges had to use personal cars or ask friends and workmates for lifts.
Justice Monaphathi says this situation is embarrassing.
“. . . lately judges of the High Court will not be possessed of or be availed of replacement cars where their cars are to be taken for service or repairs,” he says in his affidavit.
“That they go through the humiliation of borrowing transport or hiking or hiring taxis which is of common knowledge in this country, despite that other statutory office holders have more than enough.
“This is outrageous. I speak for other judges of this bench.”
Justice Monaphathi is the most senior High Court judge after the chief justice.
He has been on the bench for 15 years.
MKM is battling to fend off moves by the CBL to liquidate the company.
The central bank shut down MKM in November 2007 after accusing the company of operating insurance and banking businesses without relevant licences.
Thereafter auditors appointed by the central bank discovered that MKM could not account for nearly M300 million it had received from depositors as investments.
The central bank believes MKM was neither a legitimate bank nor an investment concern but a pyramid scheme meant to swindle money from unsuspecting depositors.
MKM has however denied this.
The company has reacted by launching a raft of court cases aimed at reversing its closure and blocking the CBL’s plans to liquidate it.
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