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Massive victory for Mahao faction

  • as Court of Appeal reverses Mahase judgement in favour of old ABC’s NEC

Mohalenyane Phakela

IN a major victory for the Professor Nqosa Mahao-led faction of the ruling All Basotho Convention (ABC), the Court of Appeal on Friday rescinded Acting Chief Justice, ‘Maseforo Mahase’s recent judgement which gave control of the ABC to the old national executive committee (NEC) that was ousted at the party’s February elective conference.

The apex court also referred the legal battle for the control of the ABC back to the High Court which will now hear the case this week on Tuesday and not on the 14th of June as Justice Mahase had initially ruled. Furthermore, the apex court directed that the case should be heard by a different judge and not Justice Mahase who the Mahao faction accuses of dragging her feet in the matter.

Prof Mahao, who was recently dealt a body blow by Justice Mahase who nullified his and others’ election to the ABC’s new NEC, appealed the controversial decision in the Court of Appeal which heard the arguments in the case on Friday.

The fractious ABC has not known peace as it was turned into a veritable theatre of war between the two factions which emerged in the run-up to and in the aftermath of the party’s 1-2 February 2019 elective conference.

At that conference and against all odds, including the disapproval of the party leader and Prime Minister Thomas Thabane, Prof Mahao was elected deputy leader of the party.

However, he and his colleagues have not been able to assume control of the party after their election was flatly opposed by the old NEC which rejected Prof Mahao on the grounds that he was an “upstart” who could not be allowed to deputise Dr Thabane in a party they formed in 2006.

Prof Mahao had clinched the coveted post ahead of party stalwarts, Finance Minister Moeketsi Majoro, Public Works and Transport Minister Prince Maliehe and former party chairperson, Motlohi Maliehe. As deputy leader, Prof Mahao became the frontrunner to succeed Dr Thabane in both party and government when the veteran leader eventually calls it a day.

Others who were elected into the new NEC are Dr Thabane’s son-in-law, Lebohang Hlaele (secretary general), Samuel Rapapa (chairperson), Chalane Phori (deputy chairperson), Nkaku Kabi (deputy secretary general), Tlali Mohapi (treasurer), Likhapha Masupha (secretary), Montoeli Masoetsa (spokesperson) and ‘Matebatso Doti (deputy spokesperson).

But Prof Mahao and the rest of the ‘new’ NEC’s election was subsequently challenged in the High Court by the trio of prominent ABC legislators Habofanoe Lehana (Khafung), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe).

The trio filed a court application on 11 February seeking an order to nullify the outcome of the ABC’s elective conference on the grounds that the polls were marred by “vote rigging”.

And with all eyes trained on the much-postponed case, Acting Chief Justice Mahase stunned all and sundry on 8 May 2019 when she went on to deliver judgement in a separate but similar application brought before her by the little-known trio of ABC members, Motseki Lefera, ’Matumisang Ntiisa and Martha Makhohlisa.

Before hearing and passing judgment in the first case, due to her “poor health”, Justice Mahase found time to emerge in her chambers to nullify the ABC’s entire 1-2 February 2019 elective conference as per the prayers of the trio of Lefera, Ntiisa and Makhohlisa.

She ruled the old NEC should remain in office in an interim capacity for a year and use the time to amend the ABC constitution to provide for the holding of NEC elections. The judgment has earned Judge Mahase a lot of flak with her critics insisting she is betraying the principle of impartiality required of all judges by showing open hostility against Prof Mahao.

Dissatisfied with what he condemned  as a “fake judgement”, Prof Mahao and his faction lodged an appeal with the apex court for the rescission of Justice Mahase’ 8 May 2019 default judgement nullifying  their election.

The applicants in the Mahao faction’s lawsuit were members of the ABC’s NEC which was elected in February, Lebohang Hlaele, Matebatso Doti, Montoeli Masoetsa and Samuel Rapapa.

The respondents were Messrs Lehana, Sello and Mohapinyane as well as Mr Lefera, Ms Ntiisa and Ms Makhohlisa.

The Mahao faction also wanted, among other things, that the Court of Appeal overturns another Justice Mahase ruling that Mr Hlaele lacked the legal standing to depose an affidavit on behalf of the ABC’s NEC. Mr Hlaele, who was elected ABC secretary general at the party’s February conference, deposed the affidavit in the initial case in which the outcome of the February conference was challenged by Messrs Lehana, Sello and Mohapinyane.

And in a major victory for the Mahao faction on Friday, the apex court reversed Justice Mahase’s 8 May judgement which nullified the ABC’s February elective conference which ushered in Prof Mahao and others to the party’s NEC.

The apex court ruled that the battle for control of the ABC should be referred back to the High Court and it should be decided on the basis of the court application that was filed on 11 February by the trio of Messrs Lehana, Sello and Mohapinyane.

The apex court also ruled that the case must be heard in the High Court not later than Tuesday by any other judge and not Justice Mahase who had resolved to hear the case on 14 June.

Advocate Thulo Hoeane, the lawyer who brought the matter before Justice Mahase, was on Friday forced to agree to the recession of Justice Mahase’s judgement. This was after a barrage of criticism from the apex court judges who questioned why he had not cited Prof Mahao’s ‘new ABC’s NEC’ in his 8 May application even though he knew very well that they were interested parties who would be affected by any decision that Justice Mahase made on the matter.

Adv Hoeane represented the trio of ABC members, Lefera, Ntiisa and Makhohlisa who argued that the elective conference should be nullified on the grounds that it was not provided for tin the ABC constitution. In their High Court application, the trio only cited the old NEC as the respondents and the latter did not oppose the application because the relief sought would allow them to remain in office as the interim NEC for a year. It was on this basis that Justice Mahase issued the order which nullified the elective conference and ordered the old NEC to act as an interim committee for a year.

The apex court session dragged into the night and only ended at about 9:30pm after the court had listed to arguments to both sets of lawyers.

The Court of Appeal bench comprised of the court’s President Kananelo Mosito, Justices Philip Musonda (from Zambia), Petrus Damaseb (Namibia) and the Zimbabwean pair of Moses Chinhengo and Tafuma Mtshiya.

“By consent of both parties, the matter (of Messrs Lehana, Sello and Mohapinyane) is remitted to High Court to be enrolled by the registrar before a different judge and should be heard not later than 28 May 2019 and should be finalised by High Court judiciously in view of public importance of the matter.

“In the Appeal 33 (regarding Justice Mahase’s 8 May order), which has been abandoned (by Adv Hoeane), the respondents should pay the applicants costs,” the apex court ruled.

Before the judgement was delivered, one of the applicants lawyers, Advocate Patsa Mohapi, submitted that Justice Mahase should have joined the Prof Mahao faction- also known as the new NEC- in the matter which she presided over and gave an order on 8 May. Adv Mohapi said Justice Mahase should have done that because she was fully aware that whatever judgement she passed would affect the new NEC’s rights.

“The court (High Court) erred in not joining the interested parties (Mahao faction) in the matter. Justice Mahase ought to have foreseen that people who were elected (at the February conference) ought to have been joined in the (8 May lawsuit) as her judgement affected their rights,” Adv Mohapi submitted.

Another lawyer for the applicants’, ‘Mabatšoeneng Hlaele, submitted that contrary to Justice Mahase’s finding, the constitution of ABC states that the NEC shall be elected every five years.

“Given the fact that there is a provision in the ABC constitution for NEC elections every five years although it is silent on how that should be done, the Acting Chief Justice misdirected herself and made an erroneous decision in nullifying the manner in which it the elections were done,” Adv Hlaele submitted.

The respondents’ lawyer, Advocate Lepeli Molapo, argued in vain that the High Court and not the apex court should have heard the Mahao faction’s application for the rescission of Justice Mahase’s 8 May judgement.

“It was premature for the applicants to have brought the matter to the apex court before exhausting local remedies which include rescission. To bring the matter to finality does not mean the High Court should be sidestepped. I therefore submit that the matter should be remitted to the High Court to be properly heard and then they can appeal thereafter,” Adv Molapo argued.

Adding to Adv Molapo’s submissions, Adv Hoeane said that the ABC constitution did not provide for the holding of NEC elections. Adv Hoeane said he had only cited the old NEC in the 8 May application before Justice Mahase because it was the committee which was in office.

“There was an interdict issued by Justice Mahase on 13 February through which the old NEC remained in office hence I only served them (old NEC). I did not find it necessary to serve the new committee because they have never been confirmed as NEC.

“I went before Justice Mahase and outlined the facts and she granted the order (to nullify the February conference) because she was convinced not because it was unchallenged. In the pending application by (Messrs Lehana, Sello and Mohapinyane), they are challenging election results whereas we (in the application by the trio of Lefera, Ntiisa and Makhohlisa) are challenging the constitutionality of the elective conference and these are two different matters,” Adv Hoeane submitted.

Adv Hoeane’s submissions provoked a barrage of questions from the bench before he eventually caved in and agreed to abandon the order that had been granted to his clients on 8 May by Justice Mahase.

Among other things, Judge Chinhengo asked, “what were Justice Mahase’s reasons for granting a one-sided order and why did she do so when she was aware of another case (by the trio of Messrs Lehana, Sello and Mohapinyane)?”

Justice Mosito also put it to Adv Hoeane that he moved the 8 May application and was granted an order. Justice Mosito also said that Justice Mahase did not provide any written reasons for her ruling.

Justice Damaseb also fumed over the handling of the case before advising Adv Hoeane to abandon Justice Mahase’s order. The judge appeared to be angered by the presentation to the court by Adv Hoeane what seemed to a version of the ABC constitution that was different from the one that the apex court had used to reach its 1 February 2019 decision to set aside Prof Mahao’s disqualification from contesting in the NEC elections.

“What right do you have to bring to the court the constitution other than the one determined by this court on the ABC elections eve. The same pre-elections matter was before Justice Mahase before coming to this court and there is no way she was not aware of the constitution I am referring to.

“This court wrote a 46-paged judgement before the ABC elections and was that a waste of time? This is not a joke, this is the highest court in the land. Maybe we should render the issue of costs on your personal capacity. I advise you to abandon this judgement,” a furious Justice Damaseb said.

It was at that point that Adv Hoeane conceded and said, “I abandon the (Justice Mahase 8 May) order my lords”.

This sets the stage for the Messrs Lehana, Sello and Mohapinyane application to be heard in the High Court by Tuesday and thus resolve the ABC power struggle for once and for all.

Ahead of the hearing of the case, the old ABC’s NEC secretary general Samonyane Ntsekele told this publication that they would respect whatever decision the court would arrive at “as we have always done”.

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