THE battle by 12 opposition Members of Parliament (MPs) to remain legislators is far from over despite the High Court ruling on Thursday that National Assembly Speaker Ntlhoi Motsamai had no authority to fire them from the august house for absenteeism.
This is because Attorney-General Tšokolo Makhethe King’s Counsel (KC) had filed another application before Thursday’s ruling seeking an order for the 12 MPs to be thrown out of parliament for not attending the mandatory sittings in the august house.
Thursday’s High Court ruling was made after the All Basotho Convention (ABC), Basotho National Party (BNP) and Reformed Congress of Lesotho (RCL) legislators filed a petition last November challenging Ms Motsamai’s letters asking them to “show cause” why they should not be expelled for missing a third of parliamentary sittings.
The MPs include the erstwhile exiled opposition bloc leaders, former premier Thomas Thabane, Thesele ’Maseribane and Keketso Rantšo of the ABC, BNP and RCL respectively.
The trio sought refuge in South Africa on 11, 13 and 26 May 2015 respectively, allegedly after being alerted of a plot to kill them by Lesotho Defence Force members — an accusation the army and government have vehemently denied.
Other MPs facing expulsion include the BNP’s Joang Molapo and Dr Nthabiseng Makoae and the ABC’s Samonyane Ntsekele, Leshoboro Mohlajoa, Tšoeu Molise, Majoro Mohapi, Chalane Phori, Mokherane Tsatsanyane, Motlohi Maliehe and Prince Maliehe.
The opposition MPs started boycotting the august house on 23 June 2015 when it adjourned, protesting alleged lack of law and order which had resulted in their three leaders seeking refuge in South Africa the previous month.
The opposition leaders returned from exile on 12 February this year, while the other MPs returned to the august house last year.
Tempers flared on Thursday after the lawyer representing Adv Makhethe KC, Senior Counsel Guido Penzhorn, wanted the court to grant the application without hearing the MPs’ side.
Advocate Penzhorn’s argument was that there had not been a response from the MPs to Ms Motsamai’s application even though it was filed in December last year.
He further averred that the High Court rules provided that the court could grant an application in favour of the applicant if the other side had not filed its opposition to the application – a legal concept known as a default judgment.
Advocate Penzhorn also posited that Ms Motsamai had to know the fate of the MPs before parliament resumed its sitting on Friday. The National Assembly was reconvened on Friday after Ms Motsamai adjourned sittings indefinitely on 22 November 2016.
His argument was met with an equally forceful response from the MPs’ lawyer Attorney Tumisang Mosotho.
Atty Mosotho said he was “embarrassed” to learn that Adv Makhethe KC’s lawyer wanted to obtain the order through a technicality.
“I am really embarrassed to realise that my learned friend wants to obtain a default judgment against the respondents in reconvention,” he said.
“Now, he wants the order against people who are not even parties in the proceedings because the application to join them in the proceedings has not yet been granted.”
Atty Mosotho added: “One wonders as to how the said MPs were expected to file their answering papers when they were not parties to the proceedings as they had not yet been properly joined.
“Even if we had not filed any papers, the court could not just grant such order without hearing viva voce (oral) evidence because the election petition by its nature, in terms of the law, is a trial.”
However, he said he had no objection if the court granted the order to join the stated MPs so that they could file their defence in the application.
The three judges who presided over the matter, Justices Molefi Makara, Tšeliso Monaphathi and Semapo Peete, granted the prayer that the MPs be joined in the proceedings.
Justice Makara said: “We order that the joinder application is granted.
“Secondly, the status quo stands as it is because the matter is still subjudice.”
He further ordered that the application be heard on 30 March 2017.
But after the ruling, Advocate Penzhorn asked what Ms Motsamai would do on Friday about the MPs whom she considered to have vacated their seats.
In response Justice Makara reiterated that “the status quo remains as it is and the Speaker may use all the laws at her disposal.”
However, before the petition had be argued and decided, Adv Makhethe KC had filed another application seeking an order for the 12 MPs to have their fate decided by the court.
The High Court ruling paved the way for the hearing of Adv Makhethe KC’s application.
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