Judge’s illness delays ABC case

Mohalenyane Phakela

EMBATTLED All Basotho Convention (ABC) deputy leader Professor Nqosa Mahao and four others’ application challenging their “expulsion” from the ABC by party leader and Prime Minister Thomas Thabane failed to take off on Monday due to the ill-health of the presiding judge, Justice Thamsanqa Nomngcongo.

It has now been postponed to Tuesday 30 July 2019, by which date it is expected that Justice Nomngcongo would have recovered to preside.

Prof Mahao was “expelled” on 17 June 2019 from the ABC by Dr Thabane along with fellow national executive committee (NEC) members, Lebohang Hlaele (secretary general), Samuel Rapapa (chairperson), Montoeli Masoetsa (spokesperson) and his deputy Matebatso Doti.

The quintet were “expelled” for alleged insubordination after they convened and addressed rallies in apparent defiance of Dr Thabane’s orders for them not to do so.

They subsequently launched a High Court bid to have their “expulsion” nullified as well as to have Dr Thabane interdicted from making any major party decisions on his own without the involvement of the NEC.

The application was initially supposed to be heard on 26 June 2019 by the High Court bench comprising of presiding judge Nomngcongo and Justices Sakoane Sakoane and Moroke Mokhesi.

The case did not proceed after Justice Sakoane stated that Justice Nomngcongo had been taken ill.

Again on Monday the case failed to proceed as Justice Nomngcongo was still unwell. Justice Nomngcongo made an appearance in court on Monday and looked visibly ill with a swollen face.

“I am not feeling well and as you can see, this is not the face that I normally carry,” Justice Nomngcongo said. He then directed Justice Sakoane to give the instructions pertaining to Prof Mahao and others’ application.

Justice Sakoane then postponed the case to 30 July 2019 in the hope that by that date, Justice Nomngcongo would have recovered to preside. The postponement will also give the litigants enough time to regularise their court papers and submit additional documents.

“We apologise for starting late as the presiding judge (Justice Nomngcongo) has mentioned that he is still unwell and he had to consult the doctor this morning. God-willing he will be well and we will proceed next Tuesday (30 July).

“The papers (that have been submitted to the court) are not paginated, attached annexures have not been translated therefore all papers must be put in order and all the heads of argument should be filed by Friday (26 July),” Justice Sakoane said.

The applicants also want Dr Thabane to be held in contempt of court for his failure to recognise them as the legitimate NEC as per the High Court Judgement of 12 June 2019.

“The decision of the first respondent (Dr Thabane) taken on 17 June 2019 expelling the applicants as members of the ABC (must) be set aside as null and void. The first respondent (Dr Thabane) as the leader of the second respondent (the ABC) does not have the power to expel any member of the ABC without ratification by third respondent (ABC’s NEC).

“The first respondent (Dr Thabane) be interdicted from making unilateral decisions and interfering with the affairs of the second respondent (ABC) without involvement of the full contingent of the third respondent (ABC’s NEC).

“The first respondent (should) be found guilty of contempt of an order of court dated 12 June 2019. In the event the court finds the first respondent guilty of contempt, he shall be ordered to purge his contempt, failing which he be committed to jail for a period determined by the court,” the applicants state in their court papers.