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Thabane refuses to accept court order

by Sunday Express
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  • take it back where it came from, premier tells court sheriff 

Mohalenyane Phakela

PRIME Minister Thomas Thabane on Friday refused to be served with an interim Court of Appeal order barring him from suspending the apex court’s president, Justice Kananelo Mosito, until the Court of Appeal rules on Professor Nqosa Mahao and others’ application for a final order on the issue.

Dr Thabane’s Friday refusal to receive the interim order, which was issued on Thursday by Justice Semapo Peete, suggests the premier is determined to get rid of Justice Mosito at all costs. The premier accuses Justice Mosito of interfering with the administrative functions of Acting Chief Justice ’Maseforo Mahase.

Justice Peete issued the interim order after Prof Mahao and others on Thursday petitioned the apex court to block Justice Mosito’s looming suspension.

Dr Thabane, Justice Mahase and Attorney General Advocate Haae Phoofolo are the first to third respondents respectively in the application by Prof Mahao and other All Basotho Convention (ABC) national executive committee (NEC) members, Samuel Rapapa (chairperson), Lebohang Hlaele (secretary general), Montoeli Masoetsa (spokesperson) and deputy spokesperson ‘Matebatso Doti.

“In the interests of justice and of preservation of the rule of law, the parties are hereby ordered not to take any step or decision that may be pre-emptive of the decision of the full Court of Appeal due to sit on 22 July 2019. The matter is postponed to Monday at 9.30am before the Court of Appeal,” Justice Peete ordered on Thursday.

However, in his report, High Court Deputy Sheriff, Tsebo Monyako, states that Dr Thabane refused to accept Justice Peete’s interim order when it was served to his office on Friday. Mr Monyako states that Dr Thabane even instructed his secretary, ‘Malehloka Ralitapole, not receive the order, saying, “It must be returned to wherever it came from”.

“I proceeded to serve court order on second respondent (Justice Mahase) and third respondent (Adv Phoofolo) at the High Court and Qhobosheaneng Government Complex respectively.

“The Attorney General’s secretary instructed that the service be effected at the Law Office’s civil section where it was received.

“However, the service upon the first respondent (Dr Thabane) was unsuccessful as his secretary, ‘Malehloka Ralitapole, informed me that she was instructed not to receive the court order and that I was to return it to where it came from,” Mr Monyako states in his report which was seen by the Sunday Express.

The expelled ABC’s NEC quintet of Prof Mahao and others filed an urgent application on Thursday for an order compelling Dr Thabane to withdraw his letter to Justice Mosito demanding that he “show cause” why he should not suspended and impeached for allegedly interfering with the administrative functions of Justice Mahase. Dr Thabane acted issued the “show cause” letter on the basis of Justice Mahase’s stinging letter of complaint to Justice Mosito where she argued that the apex court boss had undermined her by entertaining appeals by the Mahao faction who were unhappy with Justice Mahase’s delays in hearing cases brought against their February 2019 election to the ABC’s NEC.

In their latest Court of Appeal application, Prof Mahao and his allies argue that Dr Thabane and Justice Mahase should be ordered to withdraw their letters which they wrote to Justice Mosito as they undermine the authority of the Court of Appeal.

“The first respondent should be interdicted from acting (to suspend Justice Mosito) on the basis of a contemptuous show-cause letter transmitted to the Court of Appeal president on account of the order and judgement of this court involving the applicants (Prof Mahao and his four ABC’s NEC colleagues).

“The first and second respondent should be found guilty of contempt of the order and judgement of this court (Court of Appeal) and they should be directed to purge contempt of court by unconditionally withdrawing the letters dated 5 July and 27 May 2019 which had a bearing on cases involving the applicants herewith as they are likely to prejudice the fair conduct of their litigations. They further scandalize or lower the authority of the court (of Appeal) and such acts interfere with and obstruct the discharge of justice in the apex court,” Prof Mahao and his colleagues state in their application.

It was on the basis of this application that Justice Peete issued the interim order barring Dr Thabane from suspending Justice Mosito. It remains to be seen if Dr Thabane will go ahead and suspend Justice Mosito after refusing to accept Justice Peete’s interim order on Friday.

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   Justice 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 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.

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.

The Law Society of Lesotho has also 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”.

Dr Thabane has previously shown his aversion to what he says is the apex court’s interference with the internal affairs of the ABC. He has warned party officials against taking their disputes to the courts saying this will result in judgements that will split the 13 year-old party.

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