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Judge asked to recuse himself

Nat Molomo

MASERU — A High Court judge who awarded a senior colleague M180 000 in a defamation suit against a Roman Catholic newspaper should recuse himself from the case, a lawyer representing the publication has demanded.

Moeletsi oa Basotho is challenging a default judgment awarded to Justice Thamsanqa Nomncongo by Acting Judge Lebohang Molete in March this year.

Both parties in a consent order granted on Monday agreed to stay the execution of the judgment until the publication’s challenge set to be heard this Friday is finalised.

But Haae Phoofolo, representing Moeletsi oa Basotho, has indicated he will ask Acting Judge Molete to step aside.

Advocate Hopolang Nathane is representing Justice Nomngcongo.

Phoofolo told the Sunday Express that the complainant, Justice Nomngcongo, is a senior to Acting Judge Molete who is presiding over the case.

“The test for recusal is the likelihood of bias and a perception by an ordinary member of the public is that justice may not be seen to have been done,” Phoofolo said.

Granting the consent order to stay execution on Monday, Justice Molete noted Phoofolo’s intention to apply for recusal.

“Mr Phoofolo indicates that he is intending to apply for the recusal of Acting Justice L A Molete on the grounds that Judge Nomncongo is his colleague and senior.

“The difficulty pointed out is that the application is one of rescission of a judgment of the acting judge and may not be referred to another judge,” read the consent order.

“Mr Nathane submits that this could be avoided if the parties agree to an order of rescission. He will consider that and take instructions so that the matter may then start de novo (afresh) before another judge once rescission is granted.”

The case stemmed from articles published in the vernacular newspaper on May 10, 2009 claiming that a land dispute between the Roman Catholic Church and the Lesotho Evangelical Church had not been handled with the seriousness it deserved at the High Court.

Without mentioning a specific name, the paper, referring to the judge who handled the matter as a Xhosa, stated: “o ile a e fofokella.

Translated, this would mean that the judge did not give the matter the attention and importance it deserved.

Justice Nomncongo contended that the article referred to him because he was the only Xhosa judge at the High Court and was the one who was presiding over the case.

He had demanded M1 500 000.

Phoofolo challenged the ruling arguing that Justice Molete should have heard evidence from both sides before granting the default judgment.

He argued that according to procedure, Reverend Maleke Mathibeli and his publication should have been given three days notice of the hearing of the application for judgment.

Phoofolo said Mathibeli never waived his right to respond to Justice Nomncongo’s suit.

Instead, Phoofolo said, he was unaware of the judge handling the matter and therefore was unable to make submissions on behalf of his client before the default judgment was granted.

First published in the 1800s Moeletsi oa Basotho is  one of Lesotho’s oldest newspapers.

The paper has often found itself in hot water for its reporting. Earlier this year Prime Minister Pakalitha Mosisili sued the newspaper for a whopping M2 million after it alleged that he had embezzled state funds.

The paper alleged that Mosisili had embezzled M8 million that his office had received in the 2005/06 fiscal year.

In 2009 Reverend Mathibeli, the paper’s editor-in-chief, escaped with a caution after the High Court found him guilty of a contempt-of-court charge.
The charge arose from the headlines of two articles published in the paper’s edition of May 10 2009.

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