Mohalenyane Phakela
THE Law Society of Lesotho president, Tekane Maqakachane, and his five-member council are under fire for refusing to step down despite their tenure in office having expired on 1 April 2022.
A law society member, Fusi Sehapi, has now petitioned the High Court to order the association’s Council to call a general elective conference. However, the law society is vigorously opposing his application.
The Law Society of Lesotho and the Law Society Council are the two respondents in his application.
Adv Maqakachane and the other four; Lintle Tuke (deputy president), Nthati Pheku (secretary general), one Adv Shafiq (treasurer) and one Adv Makara (member) were elected as the Law Society Council members in May 2021.
Their one year tenure in office expired in April last year.
Adv Sehapi argues that they remain in office illegally and should therefore be compelled to hold a general meeting for members to elect a new committee.
However, Adv Rethabile Setlojoane appeared on behalf of the Law Society Council on Tuesday before Justice Molefi Makara in the High Court to oppose Adv Sehapi’s application.
Adv Setlojoane said Adv Sehapi had failed to honour the two working days waiting period prescribed by the High Court rules in that he filed his case on Friday and intended to move it on Monday. According to him, the two days would expire on Wednesday (yesterday).
“It is humbly submitted that this application was brought contrary to the mandatory provisions of Rule 8(4) which stipulates that ex parte (without opposition) applications must be filed with the registrar (of High Court) at least two court days before it is moved,” Adv Setlojoane argued.
“The applicant has simply made no case for urgency. He had failed to comply with Rule 8(22) of the High Court Rules 1980. This rule has been interpreted to lay down two requirements to be met in an urgency application. Firstly, one must set forth in detail the circumstances which it avers render the application urgent and secondly, the applicant must give reasons why he claims he cannot be afforded a substantial relief at a hearing in due course if the periods presented by these rules were followed.
“In his founding affidavit, the applicant alleges that the current Law Society Council has failed to convene an annual general meeting of its members between 1 April and 30 June 2022 as required by law. Around September 2022, the applicant was already aware that the second respondent (Law Society Council) had failed and/or neglected to hold a statutory and mandatory annual general meeting of the society and as if that was not enough, the applicant, for reasons best known to him, decided not to take any legal action since September 2022 until 23 March 2023 when he instituted the current application on urgent basis. This application is vigorously opposed and the intention to oppose was filed in this court and served to the applicant,” Adv Setlojoane submitted.
He further argued that Adv Sehapi’s application was self-created urgency because he had waited some 174 days before lodging it.
Advocates Kabelo Letuka and Mpeli Mohlabula represented Adv Sehapi. Adv Letuka argued that all they had to prove was there was continued illegality.
“There was no requirement for us to have given the two court days’ notice. This is not an ex parte application because we served them (law society) on Friday. We rely on Rule 8(22) of the High Court Rules.
“We are challenging the continued illegality. The current president (Maqakachane) taught me while still a student at the National University of Lesotho that the civil law procedure required that we have to prove there is continuing illegality. They failed to hold the elections in April 2022. Section 22 of the Law Society Act says that the tenure ends on 31 March, therefore they have been holding onto the office from 1 April 2022 illegally,” Adv Letuka argued.
Adv Sehapi further states in his court papers that Adv Maqakachane and his team had overstayed their welcome and their continued occupation of their office violates the law.
The Council of the Law Society had refused or failed to call for elections despite several legal demands from its members, he says.
He says the law society had done nothing to regulate the admission, enrolment and practice of local and foreign legal practitioners. As a result, Lesotho lawyers were suffering from lack of work.
“What makes things worse is that South African senior lawyers come with their own junior counsel while there are many competent junior lawyers who could be romped in to assist so that they are able to put some bread on the table.
“This will also promote the legal practice intercourse which the Law Society Act imposes as a legal duty to the law society. A vigilant law society would solicit market for its own members either from the public, parastatals, government and abroad and not simply to milk them of the money they do not have and also illicitly deny them access to court to pursue their trade and occupation via practice of the legal profession. There is no reason in fact, logic and law why the current society is holding on to the law society sits when they do not serve the associational interests of their members,” Adv Sehapi says.
He further accuses the Law Society Council of failing maintain correct books of account in terms section 9(6)(b).
“The council has never kept or made available, for members’ inspection, correct books as required by law. I challenge anyone opposing this matter to produce the books of the society,” Adv Sehapi submits.
Justice Makara reserved his ruling on whether the matter should be treated as an urgent application. “My clerk will notify the parties when it is ready,” he said.
