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Court of Appeal slams “shocking” Justice Mahase conduct

Mohalenyane Phakela

Acting Chief Justice ‘Maseforo Mahase has once again come under heavy criticism from the Court of Appeal over her conduct increasingly seen as severely compromising the integrity of the judiciary.

The Justice Kananelo Mosito led Court of Appeal lambasted Judge Mahase over her “shocking” refusal to hear – in an open court- cases brought before her by the feuding All Basotho Convention (ABC) factions.

One of the apex court judges, Namibian Justice Petrus Damaseb, said Justice Mahase’s refusal to convene an open court contravened Section 11 of the High Court Act which requires that all proceedings be held in an open court.

Justice Damaseb’s sentiments were echoed by fellow appeal court judge, Zimbabwean Justice Moses Chinhengo, who said it was “clear that the Chief Justice was wrong in refusing to go into open court” when she presided over a 5 July 2019 application by ABC deputy leader Professor Nqosa Mahao.

Prof Mahao and his colleagues had in that application asked Justice Mahase to recuse herself from presiding over their petition to stop ABC leader and Prime Minister Thomas Thabane from expelling them from the party.

The judges made their remarks while hearing an appeal from the Prof Mahao faction against Justice Mahase’s ruling interdicting them from proceeding with a special conference slated for 6 July 2019 to discuss and decide on the expulsion of party leader Thomas Thabane.  The application to interdict the conference had been brought by Dr Thabane and ABC deputy secretary general Nkaku Kabi.

Justice Mahase issued the interim order, effectively by default, on 5 July 2019 barring Prof Mahao and his allies from holding the special conference the next day after the latter’s 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 their election into the party’s new 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. The Court of Appeal judges vehemently slammed Justice Mahase while hearing the appeal last week.

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 was 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.

“The Acting Chief Justice asked us, through her clerk, to meet her in her chambers and I remained in open court while my instructing attorneys, Koili Ndebele and Khotso Nthontho, went to the chambers together with the then applicants’ (Dr Thabane and Mr Kabi) lawyers, Advocates (Rethabile) Setlojoane and (Rapapa) Sepiriti,” Adv Hlaele told the court.

“When they got into her chambers, she (Justice Mahase) asked them to address her but Adv Ndebele and Nthontho replied by asking her to come into the open court because they had left their files there and I was the one to argue the matter. I was ready to proceed in the open court.

“Justice Mahase then played an audio clip on her mobile phone which she said was from a WhatsApp group of ABC members. She said they were threatening her in that clip. Adv Ndebele asked her if she did not see that (the threats) as a sign that she should recuse herself but she insisted that they continue addressing her (in her chambers). Adv Ndebele and Nthontho then left her chambers for they were not ready or willing to argue in chambers as per the instructions of their clients. However, Adv Setlojoane and Sepiriti remained (in Justice Mahase’s chambers) and they were granted an order blocking the special conference without us being heard,” Adv Hlaele added.

It was then that Justice Damaseb accused Justice Mahase of contravening Section 11 of the High Court Act by refusing to come to an open court.

“If a High Court judge refuses to entertain litigants in an open court, it is a huge problem. Section 11 of the High Court Act says all proceedings must be in an open court. I am greatly shocked because this is the first time I learn of a judge who refuses to hear a matter in an open court,” Justice Damaseb said.

Adv Sepiriti nonetheless replied to Justice Damaseb’s by arguing that it was a common practice in Lesotho for interim reliefs to be sought in judges’ chambers.  Adv Sepiriti also argued that the issue of recusal was never argued by the applicants since they had “abandoned” proceedings.

“I will not comment on whether it was right or wrong for Justice Mahase to refuse to come to open court but in this jurisdiction, interim reliefs are always argued in chambers and the issue of recusal was not entertained because the applicants abandoned the matter” argued Adv Sepiriti.

Justice Damaseb insisted Justice Mahase should have dealt with the issue of her recusal first before entertaining the main application for an order barring the special conference.

He was supported by Justice Chinhengo who insisted that Justice Mahase was wrong to refuse to come into open court.

“It was impossible for them (the Mahao camp’s lawyers) to move their application for recusal because the judge (Justice Mahase) refused to come to open court. How can we say they were not denied a right to be heard? It is clear that the Chief Justice was wrong in refusing to go into open court,” Justice Chinhengo said.

In a separate case on Friday involving the ABC feuds, Court of Appeal President Justice Mosito also laid into Justice Mahase for her failure to provide written reasons for her judgements.

Justice Mosito said court orders which were not accompanied with the reasons for the decisions presented problems because it was difficult to say what the basis for those judgements were.

“That is the problem we have with judges who do not write reasons,” Justice Mosito said of Justice Mahase’s 31 January 2019 judgement in which she had barred Prof Mahao from contesting for the party’s deputy leader post.

 

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