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“Last chance for Thabane” in Mosito case

Mohalenyane Phakela

THE much-delayed Law Society of Lesotho’s Constitutional Court application to bar Prime Minister Thomas Thabane from suspending Court of Appeal president Kananelo Mosito again failed to take off on Thursday because Dr Thabane’s lawyers have not yet filed their answering papers.

It has now been postponed to 9 June 2020 with the Law Society’s lawyer, Advocate Christopher Lephuthing, telling the Sunday Express that the respondents have been given the last chance to file their papers before that date, failing which a default judgement could be issued against them.

“The respondents have been given the last chance to file their answering papers as the matter has been postponed several times since it was filed in July 2019 due to their failure to file their opposing papers,” said Adv Lephuthing.

“The matter will proceed on 9 June and it is highly likely that we will be granted a default judgement if they still have not filed and served us with their papers by then,” he added.

Dr Thabane, Acting Chief Justice, His Majesty the King and the Attorney General are first to fourth respondents respectively.

The Law Society filed its urgent application on 11 July 2019 to stop the suspension of Justice Mosito but for the past eight months, the matter has failed to take off because the respondents have not yet filed their answering papers.

It was filed after Dr Thabane wrote to Justice Mosito on 5 July 2019 demanding that he “show cause” why he should not be suspended for allegedly interfering with the administrative functions of Acting Chief Justice, ’Maseforo Mahase.

In his letter, Dr Thabane alleged that Justice Mosito interfered by entertaining an appeal by the Professor Nqosa Mahao-led faction of the All Basotho Convention (ABC) against Justice Mahase’s alleged tardiness in hearing and delivering judgement in a case in which its members’ election into the ABC’s national executive committee (NEC) was challenged by three ABC legislators, Habofanoe Lehana (Khafung constituency), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe).

The trio approached the High Court on 11 February seeking the nullification of the election of Prof Mahao and others, claiming that the 1-2 February 2019 polls were marred by gross irregularities including “massive vote rigging”.

Exasperated by the frequent postponements of the case by Justice Mahase on the grounds that she was ill, the Mahao camp appealed to the apex court which, on 24 May 2019, ordered that it be heard by any other High Court judge (s) besides Justice Mahase.

The Mahao faction went on to win the case after the High Court bench comprising of Justices Thamsanqa Nomngcongo (presiding judge), Moroke Mokhesi and Sakoane Sakoane dismissed Messrs Lehana, Sello and Mohapinyane’s application, ruling that the alleged vote rigging would not have changed the outcome of the elections.

Justice Mahase did not take kindly to the apex court’s decision to have the Lehana, Sello and Mohapinyane application dealt with by other judges and she subsequently wrote a scathing letter to Justice Mosito on 27 May 2019. In that letter she accused Justice Mosito of interfering with her administrative powers at the High Court. She also suggested that Justice Mosito was an interested party in the case that involved Prof Mahao as the latter was his (Justice Mosito’s) boss at the National University of Lesotho (NUL). Prof Mahao was Vice Chancellor of the NUL until 31 May 2019.

And on 5 July, Dr Thabane seized on Justice Mahase’s letter of complaint and served Justice Mosito with a letter demanding that he “show cause” why he should not be suspended to pave way for investigations to determine whether or not he is suitable to remain in office as president of the apex court.

In his letter, Dr Thabane said that Justice Mahase “indicated that you (Justice Mosito) issued orders which interfere with the administrative powers of the office of the Chief Justice.”

“You (Justice Mosito) made an order in a recent case of the ABC versus Lehana and others that the matter be heard by a different judge despite the same matter being part heard in the High Court…

“On the basis of the afore-going, I found it imperative as the head of government of the Kingdom of Lesotho to come to the rescue and preserve the reputation of the judiciary, which is likely to be eroded if not addressed on time. You are hereby directed to ‘show cause’ why I may not recommend that you be suspended from your office, in terms of Section 125 (7) of the constitution of Lesotho, pending investigations to be made on your competency as the president and the justice of the Court of Appeal,” Dr Thabane wrote.

In its pending application filed last July, the Law Society states that the premier’s move to suspend Justice Mosito is without merit and “constitutes a bare and naked interference with the independence of the judiciary”.

The Law Society wants Dr Thabane’s show cause letter to Justice Mosito declared “unconstitutional, null and void”. It also wants Dr Thabane’s intended recommendation to His Majesty King Letsie III for the suspension of Justice Mosito to be declared a “violation of the Constitution of Lesotho 1993’s doctrine of the separation of powers”.

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