Mohalenyane Phakela

ACTING Chief Justice ‘Maseforo Mahase was once again at the centre of controversy on Thursday after she refused to hear in the open court the ABC case in which party leader and Prime Minister Thomas Thabane and deputy secretary general Nkaku Kabi successfully petitioned the High Court to bar the special conference which deputy leader professor Nqosa Mahao and his allies had planned for yesterday.

Justice Mahase issued an interim order barring Prof Mahao and his allies from holding the special conference which could have led to the expulsion of Dr Thabane who they “suspended” along with other senior party officials for allegedly undermining their authority as the national executive committee and bringing the party into disrepute.

The order was granted to Dr Thabane and Mr Kabi as a default judgement due to the absence of the Mahao camp’s lawyers who boycotted in protest over Justice Mahase’s refusal to hear the matter in an open court. The Mahao camp was represented by the trio of Advocates Koili Ndebele, Khotso Nthontho and Mabat?oeneng Hlaele.

The matter was heard on Thursday in Justice Mahase’s chambers after the acting chief justice allegedly refused to come into open court on the grounds that the courtroom was cold. The Mahao faction lawyers then boycotted the in chamber proceedings, leaving only the applicants’ lawyers to motivate their application for the stay of the special conference hence the default judgement.

The matter was initially set to be heard on Thursday morning by Justices Mahase, Keketso Moahloli and acting judge, Polo Banyane. However, the matter was postponed to 3pm after the Mahao faction lawyers filed an application for Justice Mahase to recuse herself.

According to the Mahao lawyers, Justice Mahase refused to recuse herself and when they returned for the hearing of the application that was filed by Dr Thabane and Mr Kabi, they were summoned into Justice Mahase’s chambers and they were shocked to find her alone without the other judges.

One of the lawyers, Adv Ndebele said that Justice Mahase had refused to come into open court saying the courtroom was cold and that she feared attacks by supporters of the Mahao faction who were part of the crowd which had come to listen to the proceedings.

“We went into Justice Mahase’s chambers expecting to be told the way forward regarding the main case (the application by Dr Thabane and Mr Kabi) as well as our application for her (Justice Mahase’s) recusal from the Thabane and Kabi application). And to our surprise we found her sitting alone without other two judges,” Adv Ndebele said.

“We asked her to hold the proceedings in an open court because our clients did not trust the chambers’ proceedings but she refused saying that it was cold in the open court and that she would in future be accused of faking her illness if she contracted flu from the cold. She also said she feared being in the open court because there was an audio clip circulating on social media calling on our people (Mahao faction supporters) to come to the court and attack her.

“We then told her that Adv Hlaele would move the application for her recusal and the later was ready and waiting in the open court but she (Justice Mahase) refused. Instead of coming out to the open court, she asked Advocates Rethabile Setlojoane and Rapapa Sepiriti (Dr Thabane and Mr Kabi’s lawyers) to continue addressing her in her chambers. We then left the chambers to await her verdict but from her attitude we could already prejudge that the outcome would go our way,” Adv Ndebele said.

In their recusal application, the Mahao faction had sought to have Justice Mahase recuse herself from the case brought against them by Dr Thabane and Mr Kabi as they felt that she had persistently been biased against them in two earlier cases where their February election had been challenged.

They said Justice Mahase had dragged her feet in the 11 February application by the trio of ABC legislators, Habofanoe Lehana, Keketso Sello and Mohapi Mohapinyane to have their election into the ABC’s NEC nullified on the grounds that the polls were marred by vote rigging. The Mahao camp argued that by delaying to hear the case until the apex court allocated it to other judges, Justice Mahase had displayed a “certain peculiar behaviour which is abnormal for a judge sitting in a matter so urgent”.

They further argued that the most “glaring display of bias” was when Justice Mahase proceeded to rule against them in another similar case that was brought against their election by the trio of unheralded ABC members, Motseki Lefera, ’Matumisang Ntiisa and Martha Makhohlisa.

It was on this basis that the Mahao faction unsuccessfully sought to have Justice Mahase recue herself from the latest case brought against them by Dr Thabane and Mr Kabi.