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Thabane’s bid to oust Mosito takes centre stage

by Sunday Express
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Mohalenyane Phakela

PRIME Minister Thomas Thabane’s long-running bid to oust Court of Appeal President, Justice Kananelo Mosito, will take centre stage tomorrow in the Constitutional Court.

Late on Thursday, the Constitutional Court issued an interim interdict barring Dr Thabane from suspending and recommending the setting up of a tribunal to impeach Justice Mosito pending the finalisation of an application by the Law Society of Lesotho for a final order barring Dr Thabane from acting against the top judge.

Dr Thabane has already failed in two previous bids to oust Justice Mosito on the grounds that he had interfered with the administrative functions of Acting Chief Justice ‘Maseforo Mahase.

The Thursday interdict, issued by Justice Thamsanqa Nomngcongo, is the third such to be issued against Dr Thabane who appears to be hell-bent on removing the top judge who he fought so hard to reinstate throughout 2017 and 2018.

On 7 August 2019 the Court of Appeal issued an interim interdict barring Dr Thabane from suspending Justice Mosito pending the finalisation of the Law Society of Lesotho’s Constitutional Court application to have the premier barred from suspending and impeaching the apex court boss. The Law Society argues that Dr Thabane’s move is without merit and “constitutes a bare and naked interference with the independence of the judiciary”.

Before that on 18 July 2019, High Court judge Justice Semapo Peete had issued an interdict barring Dr Thabane from suspending Justice Mosito pending the Court of Appeal 25 July 2019 hearing of the Law Society’s application.

But on 19 July 2019, Dr Thabane refused to accept the interim order telling the sheriff of court who had brought it to his office to “take it back to where it came from”.

The premier was later forced to eat a humble pie and agree to an our-of-court settlement with his All Basotho Convention (ABC) rivals including expelled deputy leader Professor Nqosa Mahao to drop his bid to oust Justice Mosito on the grounds that the latter had interfered with the administrative functions of Justice Mahase.

Justice Mahase also agreed to withdraw her 27 May 2019 letter accusing Justice Mosito of interfering with her administrative functions. Justice Mahase’s letter was seized upon by Dr Thabane and used as the basis for his 5 July 2019 letter to Justice Mosito demanding that the apex court boss “show cause” why he should not be suspended and impeached for interfering with the functions of the chief justice’s office.

The deed of settlement which was subsequently endorsed by Court of Appeal judges, Petrus Damaseb (presiding judge), Moses Chinhengo and Tafuma Mtshiya states that “the first and second respondents (Dr Thabane and Justice Mahase) hereby unequivocally withdraw letters that they have hitherto written to the President of the Court of Appeal”.

That notwithstanding and also despite the pending Law Society application, Dr Thabane renewed his bid to oust Justice Mosito on 14 August 2019.

This time the premier argued that Justice Mosito’s employment at the National University of Lesotho (NUL) “might compromise your independence, impartiality and competency as a judicial officer”.

In the 14 August 2019 letter to Justice Mosito, Dr Thabane states that the top judge’s continued employment at the NUL despite his order for him to resign from the university is an act of misconduct that compromises Justice Mosito’s independence, integrity and competency as a judge.

“I therefore intend to advise His Majesty the King (Letsie III) to appoint a tribunal in terms of section 125 (5) of the constitution to investigate the aforesaid misconduct and your fitness to hold office. In order to preserve the integrity of the office of the president of the court of appeal and the administration of justice as a whole, kindly be advised that I further intend to advise His Majesty the King to suspend you from office in terms of section 125 (7) of the constitution.

“I now therefore invite you to make representations, showing cause, if any, why I cannot proceed as indicated above. Your written representations, if any, should reach my office within a period of seven days after receipt hereof,” Dr Thabane further states.

Dr Thabane has however been matched in his relentless bid to oust Justice Mosito by the Law Society who are equally determined to stop this from happening.

On Thursday the society filed an interlocutory application to stop Dr Thabane from suspending Justice Mosito.

Dr Thabane, Acting Chief Justice ‘Maseforo Mahase, His Majesty King Letsie III and Attorney General Haae Phoofolo are first to fourth respondents respectively in the application to be heard tomorrow.

“The first respondent (Dr Thabane) be interdicted from recommending to the third respondent (His Majesty) the suspension of the President of the Court of Appeal pending finalisation of the main application (still pending before the Constitutional Court),” the Law Society states in its court papers.

“The first respondent (Dr Thabane) must be interdicted and/or restricted from advising His Majesty King Letsie III to establish a tribunal aimed at inquiring into the fitness of the President of the Court of Appeal to hold office on the basis of the first respondent’s letter of 14 August 2019.

The Law Society also wants an order incorporated into their main application declaring that Dr Thabane’s 14 August 2019 letter was issued in contravention of the sub judice principle “and hence irregular and in violation of the rule of law”.

The sub judice principle means that a case is still under judicial consideration and therefore nothing can be done in connection with the matter under consideration until it is finalised. It is the Law Society’s contention that Dr Thabane moved to oust Justice Mosito again despite knowing fully well that his previous bid to do the same was under judicial review.

One of the lawyers representing the Law Society, Advocate Christopher Lephuthing, told the Sunday Express that they were shocked by the premier’s 14 August letter but they were hopeful that this time he would obey the Thursday interdict as well as other interdicts that will be issued against him in future.

“The (Thursday 22 August 2019) interim interdict bars the Prime Minister from suspending Justice Mosito until we appear before Justices Nomngcongo, (Keketso) Moahloli and (Moroke) Mokhesi on Monday (tomorrow).

“The Court of Appeal had initially granted us an interdict which we believed would stop the Prime Minister from taking any action until our pending case had been finalised but we were shocked when we learnt of his latest “show cause” letter to Justice Mosito. However, we are optimistic that he will obey the interdict or the outcome of the Monday hearing as well as the main case which will follow later,” Adv Lephuthing said.



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