Court blow for Mahao faction

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Mohalenyane Phakela

ALL Basotho Convention (ABC) deputy leader Professor Nqosa Mahao and his faction yesterday suffered a setback after the High Court dismissed their interlocutory application challenging their 17 June 2019 expulsions from the party by its leader and Prime Minister Thomas Thabane.

The application was filed by Prof Mahao and fellow expelled ABC’s national executive committee (NEC) members, Lebohang Hlaele (secretary general), Samuel Rapapa (chairperson), Montoeli Masoetsa (spokesperson) and his deputy Matebatso Doti. Dr Thabane, the ABC and the ABC’s NEC were the first to third respondents in the matter.

In their court papers, the applicants wanted the court to nullify their 17 June 2019 expulsions from the party by Dr Thabane. They also petitioned the court to declare Dr Thabane to be in contempt of court for his refusal to recognise them as the legitimate NEC as per the earlier High Court judgement of 12 June 2019. They even wanted Dr Thabane jailed for the alleged contempt of court.

“The decision of the first respondent (Dr Thabane) taken on 17 June 2019 expelling the applicants as members of the ABC should be set aside as null and void. The first respondent as the leader of the second respondent does not have the power to expel any member of the ABC without ratification by third respondent,” the applicants stated in their court papers.

“The first respondents be interdicted from taking unilateral decisions and interfering with the affairs of the second respondent (ABC) without involvement of the full contingent of the third respondent (NEC).

“The first respondent be found guilty of contempt of an order of court dated 12 June 2019. In the event the court finds the first respondent guilty of contempt, he shall be ordered to purge his contempt, failing which he be committed to jail for period determinable by the court.”

Yesterday, the High Court bench comprising of presiding judge Justice Thamsanqa Nomngcongo and Justices Sakoane Sakoane and Moroke Mokhesi dismissed the application on a technicality, saying it had not been properly filed before the court.

Reading the verdict on behalf of the court bench, Justice Mokhesi said the prayers for the setting aside of their expulsions could not be granted as they had been sought in an interlocutory application to have Dr Thabane held in contempt of court for his alleged failure to abide by a 12 June 2019 High Court judgement declaring that they had been properly elected into the ABC’s NEC at the party’s February 2019 elective conference.

“It will be observed that this application being for committal for contempt of court, is an interlocutory application, and as such this court has to deal with it only that way.

“It will be observed that when the applicants launched this application, they clubbed it together with a panoply of substantive reliefs which are foreign to application number 47 of June 2019 (which confirmed the applicants as the legitimate ABC’s NEC). Some of the reliefs sought were for the review of the party leader’s decision to expel applicants and an interdict against the party leader taking unilateral decisions without the NEC’s involvement.

“This is highly irregular. These substantive reliefs are self-standing and have nothing to do with the (initial) application to annul the election of the NEC. The decision of the applicants to combine this interlocutory application with self-standing reliefs makes a mockery of interlocutory applications…Any relief which is opportunistically included in the interlocutory application should be a matter for another court not this court.”

The High Court also dismissed Prof Mahao and his co-applicants’ application to have Dr Thabane held in contempt of court for allegedly  violating the High Court’s 12 June 2019 judgement declaring that they had been properly elected into the ABC’s NEC at the party’s February 2019 elective conference.

However, the High Court ruled Dr Thabane could not have been in contempt of court because the court had never directed him on how to act in relation to the ABC issues.

“What this court did in the main was merely to declare that certain individuals were winners in the race into the NEC of the ABC. Whether or not the party leader (Dr Thabane) engages in efforts to frustrate the results of the elective conference, it is not a matter to be enforced by means of committal for contempt of court because there was no order directing him to desist from doing what he is being accused of doing. It follows that the application for committal for contempt of court is ill-conceived and falls to be dismissed,” the High Court ruled.

Shortly after the delivery of the verdict, Prof Mahao told his supporters that they would file a fresh application challenging their expulsion from the party.

“We filed this application as an interlocutory one because our fear was that if we filed it as an independent matter, ‘M’e (Acting Chief Justice, ‘Maseforo) Mahase would have allocated herself the case and we know our experiences with her.

“However, since the Court of Appeal has ruled that she should recuse herself from ABC matters, we will file a fresh independent application on similar grounds,” Prof Mahao said.

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