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Spotlight on Mahase as Mosito fails to kick off

Mohalenyane Phakela

PRIME Minster Thomas Thabane remains on course to suspend Court of Appeal President Justice Kananelo Mosito and recommend his impeachment for allegedly interfering with the mandate of Acting Chief Justice ‘Maseforo Mahase.

This follows the failure of the Constitutional Court’s to hear the application that was brought to it on Wednesday evening for an interdict to stop Dr Thabane from recommending the suspension and impeachment of Justice Mosito.

The constitutional application failed to take off on Thursday after Acting Chief Justice ‘Maseforo Mahase said she first needed to seek legal advice on how to handle the matter. Incidentally, Justice Mahase is the second respondent in the matter. The Law Society argued in vain that she should recuse herself from allocating judges or participating in the case in any manner as she is an interested party.

Law Society president Advocate Tekane Maqakachane on Thursday told this publication that Justice Mahase ordered them to return to court on 18 July 2019- by which date she would have sought legal advice on how to handle the case.

The matter was brought as an urgent application before High Court judge Justice Molefi Makara on Wednesday at 6pm. The Law Society is seeking an interim order barring Dr Thabane from recommending Justice Mahase’s suspension to His Majesty King Letsie.

Justice Makara, however, declined to preside over the matter immediately saying that the case file needed to pass through Acting Chief Justice ‘Maseforo Mahase first for allocation.

Law Society president, Advocate Tekane Maqakachane, tried to argue that it was not the mandate of the acting chief justice to allocate cases but that of the Registrar of the High Court’s office.

“It is the mandate of the registrar to register and allocate cases. It is illegal for the acting chief justice to manage cases as she only has powers to regulate the administration of justice and not allocate cases.

“The appeal court has clearly stated that it is not her duty but that of the registrar to allocate cases to judges. Apart from that, the acting chief justice is a party to these proceedings,” Adv Maqakachane argued.

However, Justice Makara, insisted it was standard practice that all applications should go via the acting chief justice who would then assign the judges to hear cases. After he refused to hear the case, Justice Makara advised Adv Maqakachane to take the file to Justice Mahase’s home in the company of deputy registrar Mojela Shale. If the file was returned on time, Judge Makara had promised to consider the matter. This however did not happen and at about 10 pm on Wednesday, Justice Makara closed the court proceedings.

Ad Maqakachane, his deputy Lehlohonolo Matee and another lawyer, Adv Katleho Nyabela were back in court as early as 8am on Thursday morning hoping Justice Mahase would order the case to be heard. They waited in Justice Mahase’s chambers until about 12 noon when they were told to return at 4pm.

They would endure more frustration before eventually leaving the court at 6pm with Adv Maqakachane telling the Sunday Express that Justice Mahase had ordered them to come back on 18 July as she “needed to seek legal advice”.

“We have just been told by Justice Mahase to come back to her chamber on Thursday 18 July because she needs to consult the Attorney General, Advocate Haae Phoofolo, on how to handle the matter,” Adv Maqakachane said.

“We asked her to allocate the case to other judges as she is a party to the matter as the second respondent but she said the only judges available were Justices Tšeliso Monapathi and Polo Banyane. We told her we had no problem with the two but she insisted that she needed the legal advice.

“Justice Mosito could receive the suspension letter before next week Thursday but we will just have to wait and see what happens in order to map the way forward,” added Adv Maqakachane.

Prime Minister Thabane appears to be determined to get rid of Judge Mosito, a development seen destroying the independence of the judiciary.

In his letter dated 5 July 2019, Dr Thabane asked Judge Mosito to show cause why he should not be suspended for allegedly interfering with the administrative functions of  Acting Chief Justice, ’Maseforo Mahase.  This after Judge Mahase had written to Judge Mosito over differences that stem from ongoing litigation by the two faction vying for control of the ruling All Basotho Convention (ABC).  Judge Mahase has apparently been ruling in favour of a faction of the ABC supported by Dr Thabane but her judgments have been overturned on appeal. Critics accuse her of being desperate to be confirmed in her position by appeasing the premier.

In his letter, Dr Thabane alleges that Justice Mosito interfered by entertaining an appeal by the Professor Nqosa Mahao-led faction 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 until 31 May this year, the Vice Chancellor at NUL where Justice Mosito is a lecturer.

And on 5 July 2019, 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.

On Wednesday the Law Society filed an application to stop the looming suspension of Justice Mosito. Dr Thabane, Justice Mahase, His Majesty King Letsie III and the Attorney General Advocate Haae Phoofolo are cited as first to fourth respondents respectively.

One of the Law Society’s members, Advocate Katleho Nyabela states in the application that the premier’s move is without merit and “constitutes a bare and naked interference with the independence of the judiciary”.

“The cause for complaint by the prime minister is entirely the manner in which the Court of Appeal made decisions/rulings in certain appeals that came before the court and/applied rules of that court as well as the enforcement of the rules of the said court. All these matters are within the domain, purview and competence and function of the Court of Appeal and have nothing to do with the inability to perform one’s functions or misconduct.

“The directive of the prime minister constitutes a bare and naked interference with the independence of the judiciary entrenched under section 118 (2) of the constitution as well as the contravention of the hallowed doctrine of separation of powers. Such a directive from the prime minister is a serious threat to the rule of law and constitutionalism and is arbitrary and an abuse of powers,” the Law Society states in its court papers.

In terms of the interim relief, the applicants want Dr Thabane to be interdicted from recommending to His Majesty King Letsie III to suspend Justice Mosito pending the finalisation of their application or any other appeal therefrom.

The Law Society also wants Justice Mahase interdicted “forthwith from continuing to allocate any case or matter, including the present matter, or to exercise case management function, pending the final determination of this application and/or any appeal therefrom”.

“The third respondent (King Letsie) shall be interdicted and restrained forthwith from acting on any advice or recommendation by the first respondent (Prime Minister) to suspend and/or to appoint any tribunal into the investigation (sic) against Dr Kananelo Mosito based on the allegations contained in the letter of the 5th July 2019,” the application also reads.

In terms of the final relief sought, the Law Society wants Dr Thabane’s show cause letter to Justice Mosito declared “unconstitutional, null and void”. They also want 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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