THE much-anticipated case in which three All Basotho Convention (ABC) legislators are seeking the nullification of the election of Professor Nqosa Mahao and others to the party’s national executive committee (NEC) got underway on Tuesday with the applicants’ lawyer, Advocate Rapapa Sepiriti, enduring a torrid time at the hands of three High Court judges who poked holes into his clients’ case.
Three ABC legislators, Habofanoe Lehana (Khafung constituency), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe) first filed the application on 11 February 2019 seeking an order for the nullification of the results of the ABC’s elective conference on the grounds that the polls were marred by “vote rigging”.
The case has been postponed several times largely due to the claimed illness of Acting Chief Justice ’Maseforo Mahase who handled the case until a 24 May 2019 Court of Appeal order for it to be heard by any other High Court judge (s).
The apex court issued the order after the Mahao faction appealed against Justice Mahase’s judgement in a related case in which three ABC members, Motseki Lefera, ’Matumisang Ntiisa and Martha Makhohlisa successfully filed an ex parte (one sided) application for the nullification of the ABC’s elective conference.
The judgement sparked controversy especially as the trio did not cite the Mahao camp in their application. Justice Mahase granted the order despite her repeated failure to preside over a similar but earlier 11 February 2019 application by Messrs Lehana, Sello and Mohapinyane.
When the case got underway on Tuesday, Adv Sepiriti found himself on the receiving end of an extensive grilling by Justices Thamsanqa Nomngcongo (presiding judge), Justices Sakoane Sakoane and Moroke Mokhesi.
The ABC, the ABC’s new NEC, the Lesotho Council of Non-governmental Organisations (LCN), Prof Mahao and other candidates in the ABC polls are cited as the first to 44th respondents in the lawsuit.
After a barrage of probing questions from the judges, Adv Sepiriti eventually told the court that he would only be suing the LCN in their capacity as the organisation that ran the polls on behalf of the ABC and announced the new NEC line-up.
Adv Sepiriti excused the other 43 respondents after failing to convince the judges that they deserved to be cited in the matter.
Adv Sepiriti argued that his clients wanted the ABC elections nullified because they were marred by vote rigging. He said there was a variance of 70 votes which could have affected the outcome of the polls. He also alleged that some people voted twice and further accused Mr Lebohang of canvasing for votes during the elections. Mr Hlaele, the now-estranged son-in-law to Prime Minister Thomas Thabane, beat the then incumbent Samonyane Ntsekele to land the powerful post of secretary general.
“The total number of voters who were expected were 1537 but the total number of votes for the deputy leader were 1607 which leaves a variance of 70 and there are allegations of councillors (ABC) voting twice,” Adv Sepiriti told the court.
“Another irregularity was that of people who accompanied each other to the voting booth despite not having any physical disabilities. The 17th respondent (Mr Hlaele) was also seen by one of the observers (Mpho Mokheseng) lobbying voters.”
However, the three judges were not satisfied with Adv Sepiriti’s submissions, saying they lacked evidence. They also asked him how the 70 votes’ variance would have changed the fate of Messrs Lehana and Sello who were contestants for the deputy spokesperson and treasurer’s posts.
“This (the votes variance and allegations that Mr Hlalele lobbied voters) is mere speculation and we need evidence. The founding affidavit of Lehana does not say he observed Hlaele (lobbying voters), even Mokheseng says he relies on Lehana’s affidavit and does not say ‘I saw him’.
“First applicant (Lehana) obtained 67 votes while the winner in his category got 460. The second applicant (Sello) got 118 votes. If they both got the 70 variance, would they have won,” Justice Nomngcongo asked.
Justice Sakoane chipped in, “Is there anyone among the respondents saying he would have won if it was not for the 70 votes variance? The LCN attached the full elections report and Seabata Motsamai (LCN Director) in his affidavit says there were 1650 delegates and that they only cancelled out those who voted.”
Adv Sepiriti then argued that there were two voters’ rolls and one of these could have been used for the elections.
“We are not saying that so and so would have won but we are contesting the manner in which the LCN conducted the elections. We are not accepting any part of their report to be correct.”
Adv Sepiriti also wanted the court to expunge Mr Hlaele’s affidavit from the records saying that it was improper for Mr Hlaele to file an affidavit as he was not the party’s secretary general. Adv Sepiriti said his clients recognised Samonyane Ntsekele as the secretary general of ABC.
“There is a supporting affidavit of the party leader, Thomas Thabane, who says the executive committee of ABC has never sat and resolved to engage Nthontho Attorneys (who filed the affidavit on behalf of Mr Hlaele) as the party attorneys. Therefore, Mr Hlaele was not authorised to file an affidavit,” Adv Sepiriti said.
Justice Mokhesi asked Adv Sepiriti whether the removal of Mr Hlaele’s affidavit would have any bearing on the case. Justice Mokhesi then told Adv Sepiriti that he could not shut out Hlaele’s affidavit as it would not strengthen his case.
Justice Nomngcongo then postponed the matter to today when the courts will hear the respondents’ arguments.