Appeal Court savages Mahase again

  • says Acting Chief Justice is incompetent, orders her off ABC case

Mohalenyane Phakela

THE Court of Appeal has barred Acting Chief Justice, ‘Maseforo Mahase, from presiding over All Basotho Convention (ABC) leader and Prime Minister Thomas Thabane’s High Court application seeking to interdict ABC deputy leader Professor Nqosa Mahao and others from holding a special conference to expel the premier from the party.

In a hard-hitting judgement delivered yesterday, the apex court bench comprising of Justices Moses Chinhengo, Tafuma Mtshiya (both from Zimbabwe) and Petrus Damaseb (Namibia), nullified the interim order that Justice Mahase issued on 5 July 2019 barring Prof Mahao and his allies from holding the special conference. They also ordered that Dr Thabane and ABC deputy secretary general Nkaku Kabi’s application against Prof Mahao and his allies be heard by any other High Court judge besides Justice Mahase. The appeal court judges said that Justice Mahase “lacked competency to proceed with the case that she first heard on 5 July 2019”.

On that day, the acting chief justice rejected Prof Mahao and his co-respondents’ application for her to recuse herself from the case. She proceeded to issue an interim interdict in Dr Thabane and Mr Kabi’s favour barring Prof Mahao and others from holding a special conference to expel the premier from the party.

Justice Mahase issued the interim order, effectively by default, after Prof Mahao and his allies’ lawyers had refused to proceed in her chambers. Dr Thabane and Mr Kabi had argued in their papers that Prof Mahao and his allies could not proceed with the conference as they had been “expelled” from the party and had no authority to convene one.  They also sought a permanent order confirming these expulsions which had been done despite a separate 12 June 2019 High Court ruling confirming the legitimacy of Prof Mahao and others’ election into the party’s new national executive committee (NEC).

Justice Mahase then set 29 July 2019 as the date for hearing Dr Thabane and Mr Kabi’s application for a final order confirming the expulsions of Prof Mahao,  Samuel Rapapa (chairperson), Lebohang Hlaele (secretary general), Montoeli Masoetsa (spokesperson) and his deputy ‘Matebatso Doti. The matter did not proceed on that day and was again postponed to 5 august 2019. However, Prof Mahao’s faction had already appealed the interim order after it was aggrieved by Justice Mahase’s refusal to both recuse herself and hear the case in an open court. Last week the apex court judges vehemently slammed Justice Mahase while hearing the appeal.

Justices Damaseb and Chinhengo were the first to let rip at Justice Mahase accusing her of “shocking” conduct and violating the High Court Act by refusing to hear the case in an open court.

This after the Mahao faction lawyer, Advocate Mabatṧoeneng Hlaele, told the court that Justice Mahase had flatly refused to entertain their application for her recusal and subsequently issued the interim order barring the applicants from holding the special conference without them participating in the proceedings.

Adv Hlaele said Justice Mahase had effectively refused to afford his clients a hearing because of her refusal to conduct the proceedings in an open court.

And the judges continued with their criticism of Justice Mahase in their verdict which was read out on their behalf by Justice Semapo Peete yesterday.

“The appeal against the recusal of the Acting Chief Justice from presiding over the matter is allowed and it is therefore ordered that the matter be placed before other judge (s) of the High Court for determination,” Justice Peete read on behalf of the appeal court judges who had already left the country.

“Once the issue of recusal is raised by a litigant, or the circumstances of the case require the judge to consider if he or she ought to preside in view of a potential disqualification perception of bias, that issue must be dealt with before any judicial decision in the matter can be taken.

“A judge who presides in a case when he or she should not have, renders the proceedings a nullity every minute he or she continues to sit. In those circumstances, Justice Mahase should have recused herself, now that she did not, the law is clear as to the effect of the refusal on the order that she granted.

“It stands to reason that she lacked competency to proceed with the case before her and accordingly the proceedings are a nullity and must be set aside.”

Prof Mahao and others had demanded Justice Mahase’s recusal fearing that she would display the same “questionable” behaviour and bias that she allegedly displayed during previous ABC cases brought before her.

“The applicants seek to appeal against the presiding judge (Justice Mahase) to recuse herself from the proceedings because the litigants are of the view that the judge’s partiality is compromised. I am of the view and entertaining a serious suspicion that there is a reasonable apprehension for bias on the part of the judge,” Prof Mahao stated in his appeal court papers.

Yesterday’s appeal court ruling was not the first barring Justice Mahase from an ABC case. In May this year, she was also ordered off an application that had been brought by three ABC legislators challenging Prof Mahao and others’ February 2019 election to the party’s national executive committee. The May 2019 order was issued after Prof Mahao and others appealed against Justice Mahase’s lengthy delays in hearing the case that had been brought against their election by ABC legislators, Habofanoe Lehana (Khafung constituency), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe).

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