THE 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) was yesterday postponed to 4 June 2019.
The case was postponed to allow the applicants, Habofanoe Lehana (Khafung constituency), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe) to file a notice informing the court of the return of their lawyer, Advocate Rapapa Sepiriti, who had abandoned them.
The case was initially before Acting Chief Justice ‘Maseforo Mahase but it is now before Justices Sakoane Sakoane, Thamsanqa Nomngcongo and Moroke Mokhesi.
Before postponing the case, Justices Sakoane and Nomngcongo yesterday questioned why the Court of Appeal entertained the Mahao faction’s appeal in connection with the ABC legislators’ application challenging Prof Mahao and others’ election to the ABC’s NEC in February.
Justices Sakoane and Nomngcongo yesterday said they did not understand why the apex court heard the Mahao faction’s appeal when the case was still pending before the High Court.
They also said the Court of Appeal did not rule on the interim orders that were issued by Justice Mahase when she presided over the application that was first brought before her on 11 February by Messrs Lehana, Sello and Mohapinyane.
Justice Mahase issued an order barring Prof Mahao and the rest of the new NEC from assuming office and stated that the old NEC should remain in charge until after the case had been finalised.
She also ruled that Mr Lebohang Hlaele, who was elected secretary general, had no right to deposit an affidavit on behalf of the ABC’s NEC in the case that was filed by Messrs Lehana, Sello and Mohapinyane.
The trio filed a case on 11 February 2019 seeking nullification of the ABC February elections on the grounds that they were allegedly marred by massive vote rigging.
Justices Sakoane, Nomngcongo and Moroke Mokhesi who are now presiding over the case after it was refereed back to the High Court by the apex court last Friday, yesterday said the apex court’s failure to pronounce itself on the fate of Justice Mahase’s orders implied the orders still held.
Initially, Justice Mokhesi had been assigned to preside over the case by the Acting Registrar of the High Court, Pontšo Phafoli who acted on the instructions of the apex court.
However, Justice Mahase refused to be sidelined from the process and ordered that Justices Sakoane and Nomngcongo should join Justice Mokhesi in the case.
“While the five judges (of the Court of Appeal) ordered the Registrar of the High Court to have the matter enrolled before another judge, they have given an order which is in direct conflict of the Provisions of Section 12 of the High Court Act No. 5 of 1978 which provides that ‘the Chief Justice shall regulate the distribution of the business in the court,” Justice Mahase stated in her order on Monday.
She added: “Obviously, the distribution of business in the High Court is the prerogative of the Chief Justice only.
“Why the lordships overlooked this section 12 of the High Court rules is only known to them.
“For the Chief Justice to ensure that this is achieved, I in an addition order that Justice Mokhesi who the registrar had irregularly enrolled on the case, should sit together with Justices Sakoane and Nomngcongo who are judges of the High Court.”
Upon receiving Justice Mahase’s order on Monday, Justice Mokhesi then postponed the matter to yesterday to allow Justices Sakoane and Nomngcongo to join him on the bench.
Yesterday, the case was then postponed to 4 June by which date the applicants would have filed a notice informing the court of the return of their lawyer, Adv Sepiriti, who had abandoned them.
In the meantime, the judges ruled that the old NEC should remain in charge of the party as per Justice Mahase’s order.
“We are at a loss as to what took the matter to Court of Appeal when it was still pending in this court.
“The order (Court of Appeal) does not say anything about orders which were granted by the Acting Chief Justice,” Justice Nomngcongo said.
Justice Sakoane added: “If merits of this matter were not entertained in the Court of Appeal, it should follow that orders (of Justice Mahase) were not set aside.”
One of the defendants’ lawyers, Advocate Mabatšoeneng Hlaele, explained that the merits of the case were not argued because the applicants and defendants agreed that the matter should be referred back to the High Court where it would be heard by a different judge.
Adv Hlaele also argued that Justice Mahase’s order for the old NEC to remain at the helm of the party until the finalisation of the application should be set aside.
“The only issue which was discussed in the Court of Appeal was whether Mr Hlaele’s affidavit should be expunged from the records or be allowed to stand.
“The applicants’ lawyer admitted that he received Mr Hlaele’s affidavit before Justice Mahase issued an order interdicting the new committee therefore the consensus which was reached was that he (Mr Hlaele) still had the jurisdiction to submit the affidavit and therefore it should stand.
“Both parties also agreed that the matter should be heard by a different judge in the High Court.
“Justice Mahase had extended the interdicting order to 14 June when she had said she would continue with the case. However, it falls away because the Court of Appeal ruled against that date she had set and therefore her order falls away,” Adv Hlaele argued.
But after adjourning proceedings, the three judges postponed the case to 4 June and ruled that the old NEC should remain in charge of the ABC until the finalisation of the case as per Justice Mahase’s order.
“This matter is postponed to 4 June 2019 and the applicants should file proper return notice of their attorney. No order of Justice Mahase is set aside,” Justice Nomngcongo ruled.