Nat Molomo

MASERU — The beleaguered MKM’s fight to shrug off South African-based liquidators and replace them with a Mosotho attorney will be heard by the Commercial Court after the High Court judge’s withdrawal from the matter because of lack of jurisdiction.
The acting High Court judge, Justice John Musi, withdrew from the case on Friday after the MKM counsel Kananelo Mosito convinced him that he lacked jurisdiction because he was not appointed as commercial judge.
Justice Musi ordered that the matter be referred to the Commercial Court.
MKM wants the court to remove two provisional liquidators, Chavonnes Badenhorst from St Clair Cooper in Bloemfontein and Daniel Gerhardus Roberts of Webber Newdigate and replace them with a local attorney, Tankiso Hlaoli.
Mosito had challenged the appointment of liquidators as un-procedural.
According to Advocate Mosito, in terms of section 185 and 186 of the Companies Act 1967, the Master of the High Court should call a meeting of creditors and contributories to a meeting to appoint liquidators.
“We as applicants want attorney Hlaoli as liquidator, but respondents want the liquidators appointed by the Master of the High Court,” Mosito said.
He told the court last year that according to the Companies Act all stakeholders including the MKM’s three companies should have been engaged when the Master of the High Court appointed the liquidators.
The liquidators were directly appointed by the High Court and the legal procedure was not followed, Mosito argued.
“It was not a judicial exercise of its discretion when the court a quo granted application for liquidation,” Mosito said.
Agreeing that the High Court did not have jurisdiction to hear the MKM application, Justice Musi on Friday said the head of the Commercial Court will designate a commercial judge as the issue concerning liquidation is a commercial matter.
Mosito had from the onset pointed to the court that Judge Musi, sitting as a puisne judge of the High Court, had not been designated as a judge of the commercial court.
“We submit that your Lordship should decline jurisdiction in this matter because you have not been designated as the commercial court judge in terms of the High Court (Commercial) Court Rules 2011,” he said.
Liquidators’ lawyer, Chris Edeling, argued that the Commercial Court judges are likely to decline to hear the case especially because some of them recused themselves from it in the past.
All High Court judges recused themselves from the case in the past citing various reasons.
That was the time when the Chief Justice appointed Justice Musi, a South African judge, to handle the MKM cases.
Justice Musi was himself under pressure to recuse himself after he ordered that Badenhorst and Roberts should be provisional liquidators.
The MKM creditors, through their lawyer Advocate Koili Ndebele, told Justice Musi then that they feared that he would be biased against MKM.
Their fears were based on the fact that Justice Musi had already ordered MKM’s liquidation without following procedures.
Ndebele, who is now working with Mosito in the MKM cases, questioned the Chief Justice Mahapela Lehohla’s directive that MKM cases would be heard by Justice Musi only.
On Friday, Edeling said Justice Musi should hear the matter because he was appointed by the Chief Justice.
“I submit that Rule 12(2) give your lordship power to submit the matter to Commercial Court,” Edeling said, adding that this matter had been before Commercial Court Justices David Lyons, Lebohang Molete and Lisebo Chaka-Makhooane with some having recused themselves.
Justice Musi suggested that the two parties could approach the Chief Justice and petition him to appoint him (Musi) as a Commercial Court judge.