Justice Mahase comes under fire

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  • condemned as a “disgrace” to the legal profession

Ntsebeng Motsoeli

IT never rains but pours for Acting Chief Justice ‘Maseforo Mahase.

The beleaguered Justice Mahase was once again on the receiving end of a savage attack by Professor Nqosa Mahao who branded her a “disgrace to the legal fraternity” for allegedly allowing herself to be used by politicians to further their selfish agendas.

Prof Mahao made the remarks at an ABC rally in Tele, Quthing. He was not alone in criticising Justice Mahase as prominent lawyer, ‘Mabatšoeneng Hlaele, also blasted the Acting Chief Justice for being a “compromised and biased judge”.

The latest attacks by the Mahao camp completed what has been a torrid month for Justice Mahase who, three weeks ago, was on the receiving end of a public protest by ABC supporters who accused her of bias and dragging her feet in the case in which three ABC legislators want Prof Mahao and others’ election to the party’s national executive committee (NEC) nullified.

It has also been a month in which Justice Mahase’s 8 May order nullifying the ABC’s 1-2 February 2019 elective conference which ushered in Prof Mahao and others was revoked.

Last Friday, the Court of Appeal rescinded Justice Mahase’s 8 May judgement which gave control of the ABC to the old NEC that was ousted at the party’s February elective conference.

The apex court also referred the legal battle for the control of the ABC back to the High Court which began hearing the case on Tuesday and not on the 14th of June as Justice Mahase had initially ruled.

Furthermore, the apex court directed that the case should be heard by a different judge and not Justice Mahase who the Mahao faction accuses of bias against them.

The fractious ABC has not known peace as it was turned into a veritable theatre of war between the two factions which emerged in the run-up to and in the aftermath of the party’s 1-2 February 2019 elective conference.

At that conference and against all odds, including the disapproval of the party leader and Prime Minister Thomas Thabane, Prof Mahao was elected deputy leader of the party.

However, he and his colleagues have not been able to assume control of the party after their election was flatly opposed by the old NEC which rejected Prof Mahao on the grounds that he was a “newcomer” and “upstart” who could not be allowed to deputise Dr Thabane in a party they formed in 2006.

Prof Mahao and the rest of the ‘new’ NEC’s election was subsequently challenged in the High Court by the trio of prominent ABC legislators Habofanoe Lehana (Khafung), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe).

The trio filed a court application on 11 February 2019 seeking an order to nullify the outcome of the ABC’s elective conference on the grounds that the polls were marred by “vote rigging”.

And with everyone expecting her to deal with that much-postponed case, Acting Chief Justice Mahase surprisingly went on to deliver judgement in a separate but similar application brought before her by the little-known trio of ABC members, Motseki Lefera, ’Matumisang Ntiisa and Martha Makhohlisa on 8 May.

Before hearing and passing judgment in the first case, due to her “poor health”, Justice Mahase found time to emerge in her chambers to nullify the ABC’s entire 1-2 February 2019 elective conference as per the prayers of the trio of Lefera, Ntiisa and Makhohlisa.

She ruled the old NEC should remain in office in an interim capacity for a year and use the time to amend the ABC constitution to provide for the holding of NEC elections.

Dissatisfied with what he condemned  as a “fake judgement”, Prof Mahao and his faction lodged an appeal with the apex court for the rescission of Justice Mahase’ 8 May 2019 default judgement nullifying  their election.

Prof Mahao’s camp argued that “page 24 of the ABC constitution states that after every five years, the ABC shall elect a national executive committee”.

The applicants in the Mahao faction’s lawsuit were members of the ABC’s NEC which was elected in February, Lebohang Hlaele, Matebatso Doti, Montoeli Masoetsa and Samuel Rapapa.

The respondents were Messrs Lehana, Sello and Mohapinyane as well as Mr Lefera, Ms Ntiisa and Ms Makhohlisa.

The Mahao faction also wanted, among other things, that the Court of Appeal overturns another Justice Mahase ruling that Mr Hlaele lacked the legal standing to depose an affidavit on behalf of the ABC’s NEC.

Mr Hlaele, who was elected ABC secretary general at the party’s February conference, deposed the affidavit in the initial case in which the outcome of the February conference was challenged by Messrs Lehana, Sello and Mohapinyane.

And in a major victory for the Mahao faction last Friday, the apex court reversed Justice Mahase’s 8 May judgement which nullified the ABC’s February elective conference which ushered in Prof Mahao and others into the party’s NEC.

The apex court ruled that the battle for control of the ABC should be decided by the High Court and it should be decided on the basis of the court application that was filed on 11 February by the trio of Messrs Lehana, Sello and Mohapinyane.

The apex court also ruled that the case must be heard in the High Court not later than the 28th of May by any other judge and not Justice Mahase who had resolved to hear the case on 14 June.

And although the High Court is yet to pronounce its verdict, the Mahao camp celebrated the rescission of Justice Mahase’s 8 May judgement at the Tele rally as though they had already won the power struggle.

Outspoken ABC activist Thato Ponya led about 400 ABC supporters in singing the popular hymn, ‘Le Satane re mohlotse matla’ (loosely translated to mean, ‘We have triumphed over Satan’).

One of the Mahao faction’s lawyers, Adv Hlaele said, while it was not yet over, the removal of Justice Mahase from presiding over the case was a huge victory for them.

“The removal of Justice Mahase is a very big win for us.  She (Justice Mahase) was found to have a very colourful mind. In simpler terms, she is compromised.

She is a biased judge. Do not despair because on the 28th (of May), we will be given a neutral judge without any bias,” Ms Hlaele told cheering supporters.

Adv Hlaele is Prime Minister Thabane’s daughter and she is married to Lebohang Hlaele who was fired from cabinet in February in a move party and government sources said was his punishment for siding with Prof Mahao in the ABC power struggle.

On his part, Prof Mahao ridiculed Justice Mahase and lawyer, Adv Thulo Hoeane, saying the duo were a disgrace to the legal fraternity for allegedly allowing themselves to be used by politicians.

“We were not bluffing when we accused one of the judges (Justice Mahase) of maladministration. Five (Court of Appeal) judges have already said that she went beyond her legal territory by overturning the February apex court ruling which pronounced itself on the ABC constitution.

“She (Justice Mahase) has been misused. Now she has lost her dignity. The fact that she has been excused from the (Lehana, Sello and Mohapinyane) court case is the biggest humiliation she could ever suffer.

She and the young man (Adv Hoeane who represented the trio of ABC members (Lefera, Ntiisa and Makhohlisa) have disgraced us as the university that trained them.

They are a disgrace to their trainers and to the law profession. I therefore appeal to all civil servants to handle public issues with care so as to win trust,” Prof Mahao said.

The February 2019 apex court ruling that Prof Mahao was referring to is the one that allowed him to contest the elections, overturning Justice Mahase’s ruling which had disqualified him from contesting.

He said they were confident that the new judge (s) would be impartial in deciding on their case.

“We expect that those judges who will be appointed to this case will be diligent. We are not asking for favours from anyone. The fact is that we won the elections fairly.

ABC supporters elected us freely without any guns pointing at them. All we want is for the other side to clearly understand that the elections were not rigged and the elected committee has to assume office,” Prof Mahao said.

He said they were willing to reconcile with those who had resisted their election, adding it was time the party re-united.

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