THE interim national executive committee (NEC) of the All Basotho Convention (ABC) has failed in its bid to get the Court of Appeal to throw out two cases that were recently brought before it by the party faction that is loyal to Professor Nqosa Mahao.
In turning down the interim NEC’s request, the Assistant Registrar of the Court of Appeal, Advocate Mosito Rabotsoa, said only the judges had the power to dismiss cases brought before the court. The apex court will hear the Mahao faction’s cases tomorrow.
Adv Rabotsoa said this in response to the letter that was written to him by the secretary general of the interim NEC, Samonyane Ntsekele. Mr Ntsekele recently wrote to Adv Rabotsoa, saying that the interim NEC was the genuine NEC of the ABC and they had not instructed anyone to lodge an appeal in the apex court on behalf of the ABC.
Adv Rabotsoa replied by informing Mr Ntsekele that the Mahao faction’s cases were already before the court and his office did not have authority to strike off the cases in accordance with the interim NEC’s request.
“Your letter raises very important issues which must be heard and reacted to on an urgent basis but in my considered view, the issues you raised must be addressed before a proper forum,” Adv Rabotsoa stated in his letter to Mr Ntsekele dated 17 May.
“My office is faced with a jurisdictional challenge of whether I can administratively address the matters pending and partly heard before the court.
“Your letter bears evidence that you are aware that the court has decided to hear the matter on an urgent basis. Kindly be advised that the order has been issued to that effect. You are accordingly advised to come to court and seek a judicial not administrative remedy.”
Adv Rabotsoa this week explained to the Lesotho Times that his response to the interim NEC “basically means that Mr Ntsekele has to raise his concerns in court on Friday (tomorrow) when the (Mahao faction) cases are being argued”.
“The court is the correct forum for Mr Ntsekele to raise his concerns and not my office as we only deal with administrative issues. The judges will then decide whether to throw out the cases or proceed to hear them,” Adv Rabotsoa said.
A fortnight ago the Acting Chief Justice, ‘Maseforo Mahase, nullified the 1-2 February 2019 ABC elective conference which ushered in Prof Mahao and others into the ABC’s NEC and declared the old NEC as the interim NEC for a year.
Against overwhelming rejection by the senior ABC officials that included the ABC leader and Prime Minister Thomas Thabane, Prof Mahao contested and clinched the deputy leader’s post at the ABC’s February elective conference.
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Others who were elected into the new NEC are Dr Thabane’s son-in-law, Lebohang Hlaele, Samuel Rapapa, Chalane Phori (deputy chairperson), Nkaku Kabi (deputy secretary general), Tlali Mohapi (treasurer), Likhapha Masupha (secretary), Montoeli Masoetsa and ‘Matebatso Doti.
However, Prof Mahao and fellow members of the new NEC’s joy was cut short by the old NEC which refused to hand over power. Three ABC legislators, Habofanoe Lehana (Khafung), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe) filed a court application on 11 February seeking an order to nullify the outcome of the ABC’s elective conference on the grounds that the polls were marred by “vote rigging”.
Despite postponing that case on several occasions, Justice Mahase stunned the Mahao faction on 8 May when she went on to deliver judgement in a separate but similar application that was brought before her by the unheralded trio of ABC members, Motseki Lefera, ’Matumisang Ntiisa and Martha Makhohlisa.
Justice Mahao nullified the ABC’s February conference and ruled that the old NEC should remain in office as the interim NEC for a year and during that time they should work on amending the ABC constitution to provide for the holding of NEC elections which it currently does not provide for.
The Mahao faction responded by lodging an appeal with the apex court for the rescission of Justice Mahase’s 8 May 2019 judgement which nullified their election as the NEC of the ruling party.
The Mahao faction also wants the Court of Appeal to overturn another Justice Mahase ruling which states that Mr Hlaele lacked the legal standing to depose an affidavit on behalf of the ABC’s NEC. Mr Hlaele, who was elected ABC secretary general at the party’s February conference, deposed the affidavit in the case in which the outcome of the February conference was challenged by Messrs Lehana, Sello and Mohapinyane.
But on 16 May, the interim NEC’s secretary general, Mr Ntsekele, requested that the Court of Appeal should disregard the appeals that were lodged by Prof Mahao’s colleagues.
Mr Ntsekele argued that they were the genuine NEC of the ABC and they had not instructed anyone to lodge an appeal in the apex court on behalf of the ABC.
Mr Ntsekele stated that, as the interim NEC, they never instructed anyone to lodge an appeal on behalf of the ABC and therefore the Prof Mahao faction’s appeals should be struck off the Court of Appeal roll.
“It has come to our attention that there are two appeals which are already before the Court of Appeal which were purportedly lodged by the ABC.
“In respect to Appeal 32 (regarding the case of Mr Hlaele), the best of our knowledge the matter is pending before the High Court and has been postponed to 14 June 2019. We have also noted Appeal 33 (regarding Justice Mahase’s 8 May judgement). However, we have not lodged an appeal against anyone or instructed any lawyer to appeal on our behalf.
“We request your office to remove those appeals which are purportedly brought by the ABC from the roll because as a matter of fact, ABC has not noted an appeal or instructed anyone to note an appeal on behalf of the ABC. The NEC of ABC, of which I am a member holding the position of secretary general, is the only body with sole powers to represent the ABC in any legal proceedings for or against the party,” Mr Ntsekele states in his letter to Adv Rabotsoa.