Mohalenyane Phakela
THE Constitutional Court has ordered Basotho Patriotic Party (BPP) leader, Tefo Mapesela, to rectify some “errors” in his application for an order for a secret vote on his no confidence motion against the government.
Mr Mapesela filed the application on 14 September 2021. He filed it alongside fellow opposition MP, Kose Makoa, of the Alliance of Democrats (AD) party.
The duo had petitioned the court to treat the application as an urgent matter. However, its urgency will now be determined by how swiftly their lawyer, Tekane Maqakachane, rectifies some procedural errors in the application pointed out on Thursday by the Constitutional Court bench comprising of Chief Justice Sakoane Sakoane and Justices Molefi Makara and Polo Banyane.
The Speaker of National Assembly, Sephiri Motanyane; the Clerk of the National Assembly, Fine Maema; the Business Committee of the National Assembly; the National Assembly; Attorney General Rapelang Motsieloa; MPs as well as all political parties in parliament are the first to seventh respondents respectively in the application.
The matter had been expected to be heard on Thursday but it failed to proceed after the court bench ruled that Messrs Mapesela and Makoa had incorrectly cited some of the respondents.
The duo had collectively cited all the 118 MPs as the sixth respondent. They had also collectively cited all the 14 political parties in parliament as the seventh respondent.
They had served all the MPs with just one set of papers which was received at the parliament building by one Thabo Ntene whose title or role at parliament was questioned by the court. Only eight political parties were served with Messrs Mapesela and Makoa’s application.
After wrongfully citing the MPs and the political parties, the court noted that Messrs Mapesela and Makoa went on to unprocedurally attach the list of MPs and political parties as annexures A and B respectively in the application.
Even before Advocate Maqakachane could address the court regarding his clients’ prayers for urgency and an interim interdict against the no confidence motion, Justice Sakoane started punching holes in the manner in which the respondents had been cited.
“Why should we entertain this matter when parties are not cited,” Justice Sakoane asked.
“What is the reason for not serving all the parties? The return of service is also misleading as it appears as if all parties were served. There are serious allegations levelled against the prime minister (Moeketsi Majoro) but he is not cited.
“The papers were served on one Thabo Ntene. Who is he? He may be a guard or sweeper or not even working there. The papers are not served on the MPs individually. That means you want to get a default judgement against them,” Justice Sakoane said.
Justice Makara chipped in, saying that the MPs should have been cited individually for the court to hear their side of the story.
“You will agree that the sixth respondents (MPs) have a direct interest in the outcome of this matter. They should be made direct parties either as applicants or respondents so the court can appreciate their stance.
“I am sceptical that there is a consensus on the averments tendered in support of the application hence the need for them to be cited and served in order for them to register their views in regard to this application,” Justice Makara said.
One of the respondents’ lawyers, Qhalehang Letsika, concurred with the judges, saying all concerned parties should have been individually cited and served with the application.
“The court rules are clear that if I want to sue someone, I have to mention him and serve him at his address. The question of citation is mandatory and critical. It is then followed by service of the papers.
“Serious allegations are made against the prime minister and some border on criminality but he is not cited in the proceedings. The applicants rely on hearsay evidence,” Mr Letsika argued.
Adv Maqakachane then attempted to defend the manner in which the application was prepared. He argued that there was no order sought against the MPs and political parties hence there was no reason to list them individually as respondents.
“We relied on what the deputy sheriff said that he had served the parties. People against whom the interim orders are sought have been served. But if the court orders that we serve them individually, then we will do so,” Adv Maqakachane submitted.
The court adjourned for about 10 minutes before Justice Banyane announced that the application must be corrected and resubmitted before it is entertained by the court.
“Persons (MPs) listed in annexure A must be joined and each served personally. The political parties who appear in annexure B should all be served. The issue of urgency will be determined after the above issues are addressed,” Justice Banyane said.
Messrs Mapesela and Makoa filed their constitutional application on 14 September 2021. They accused Dr Majoro of using the national security agencies to “intimidate” his All Basotho Convention (ABC) party’s MPs who are allegedly in support of the no confidence motion against him in parliament.
They also accuse Dr Majoro of violating the constitution and failing to govern in a transparent manner.
Mr Mapesela filed the no confidence motion on 25 August 2021. It was seconded Mr Makoa. Mr Mapesela had followed it up with another motion for a secret ballot a fortnight ago.
On 10 September 2021, Mr Motanyane told MPs that he had approved the no confidence motion against Dr Majoro. He however, said voting on the motion would not be through secret ballot as proposed by Mr Mapesela in the interests of “transparency” and “openness”.
Dissatisfied with Mr Motanyane’s decision, Messrs Mapesela and Makoa subsequently petitioned the Constitutional Court for an order to allow MPs to vote secretly.
They argue that the no confidence motion should be determined via a secret ballot to allow parliamentarians to freely vote without any fear of repercussions.