Law Society petitions Court of Appeal over Mahase

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Mohalenyane Phakela

THE Law Society of Lesotho have approached the Court of Appeal to have controversial Acting Chief Justice ‘Maseforo Mahase interdicted from unprocedurally presiding over a case in which she is a respondent along with Prime Minister Thomas Thabane.

In their apex court papers filed on Tuesday, the Law Society argue that contrary to the principle of natural justice, Justice Mahase presided over the society’s Constitutional Court application to have Dr Thabane interdicted from recommending the suspension and impeachment of Court of Appeal president Kananelo Mosito.

The Law Society first brought an urgent constitutional application on the night of 10 July 2019, seeking to have Dr Thabane interdicted from recommending the suspension and impeachment of Justice Mosito. This was after Dr Thabane wrote to Justice Mahase on 5 July 2019, demanding that he “show cause” he should not be suspended and impeached for allegedly interfering with the administrative functions of the acting chief justice.

However, the constitutional application failed to take off before High Court judge Justice Molefi Makara after the latter said the case file needed to first pass through Justice Mahase for allocation. The Law Society argues that cases are normally allocated to judges by the registrar of the High Court and not by the chief justice.

Justice Mahase further incensed Law Society officers Advocate Tekane Maqakachane (president), Lehlohonolo Matee (deputy president) and Adv Katleho Nyabela (member) when on 11 July, she resolved to postpone the case to 18 July (today). She said by today, she would have sought and obtained legal advice from Attorney General Adv Haae Phoofolo as to how to proceed with the case.

However, the Law Society argues that this is a blatant and flagrant violation of the principles of natural justice which state that one cannot preside over a case in which they are a respondent. Even Adv Phoofolo is a respondent in the Law Society’s application to have Dr Thabane barred from instigating the removal of Justice Mosito. Dr Thabane, Justice Mahase, His Majesty King Letsie III and the Attorney General Advocate Haae Phoofolo are cited as first to fourth respondents respectively in the Law Society’s constitutional application.

In their latest apex court appeal papers, the Law Society argues that “Acting Chief Justice Mahase erred and misdirected herself in sitting and presiding over a matter and issuing an order although she is a litigant in the matter, having been cited as the second respondent in the matter”.

“This is contrary to the common law natural justice principle that she may not preside over a matter in which she has an interest as a party thereto. She has effectively become a judge in her own cause. She further frustrated the efforts of the appellant to appear before a panel of three judges on 11 July 2019 and move the court for an interim relief.

“The second respondent (Justice Mahase) stood down the matter to 18 July 2019 and thereby rendering the urgent interim relief by the appellant nugatory illusory and/or with no practical significance. Such an order is a nullity and ought to be set aside on appeal by reason of the second respondent’s objective appearance of bias which disqualified her in law from dealing with the matter,” the Law Society states in its apex court application.

Basing on Justice Mahase’s grievances, Dr Thabane appears to be determined to get rid of Judge Mosito- a development widely seen as destroying the independence of the judiciary.

In his letter dated 5 July 2019, Dr Thabane asked Judge Mosito to “show cause” why he should not be suspended for allegedly interfering with the administrative functions of   Justice Mahase.  This after Judge Mahase had written to Judge Mosito over differences that stem from ongoing litigation by the two factions vying for control of the ruling All Basotho Convention (ABC).  Judge Mahase has apparently been ruling in favour of a faction of the ABC supported by Dr Thabane but her judgments have been overturned on appeal. Critics accuse her of being desperate to be confirmed in her position by appeasing the premier.

In his letter, Dr Thabane alleges that Justice Mosito interfered by entertaining an appeal by the Mahao faction against Justice Mahase’s alleged tardiness in hearing and delivering judgement in a case in which its members’ election into the ABC’s national executive committee (NEC) was challenged by three ABC legislators, Habofanoe Lehana (Khafung constituency), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe).

The trio approached the High Court on 11 February seeking the nullification of the election of Prof Mahao and others, claiming that the 1-2 February 2019 polls were marred by gross irregularities including “massive vote rigging”.

Exasperated by the frequent postponements of the case by Justice Mahase on the grounds that she was ill, the Mahao camp appealed to the apex court which, on 24 May 2019, ordered that it be heard by any other High Court judge (s) besides Justice Mahase.

The Mahao faction went on to win the case after the High Court bench comprising of Justices Thamsanqa Nomngcongo (presiding judge), Moroke Mokhesi and Sakoane Sakoane dismissed Messrs Lehana, Sello and Mohapinyane’s application, ruling that the alleged vote rigging would not have changed the outcome of the elections.

Justice Mahase did not take kindly to the apex court’s decision to have the Lehana, Sello and Mohapinyane application dealt with by other judges and she subsequently wrote a scathing letter to Justice Mosito on 27 May 2019. In that letter she accused Justice Mosito of interfering with her administrative powers at the High Court. She also suggested that Justice Mosito was an interested party in the case that involved Prof Mahao as the latter was his (Justice Mosito’s) boss at the National University of Lesotho (NUL). Prof Mahao was until 31 May this year, the Vice Chancellor at NUL where Justice Mosito is a lecturer.

And on 5 July 2019, Dr Thabane seized on Justice Mahase’s letter of complaint and served Justice Mosito with a letter demanding that he “show cause” why he should not be suspended to pave way for investigations to determine whether or not he is suitable to remain in office as president of the apex court.

In his letter, Dr Thabane said that Justice Mahase “indicated that you (Justice Mosito) issued orders which interfere with the administrative powers of the office of the Chief Justice.”

“You (Justice Mosito) made an order in a recent case of the ABC versus Lehana and others that the matter be heard by a different judge despite the same matter being part heard in the High Court…

“On the basis of the afore-going, I found it imperative as the head of government of the Kingdom of Lesotho to come to the rescue and preserve the reputation of the judiciary… You are hereby directed to ‘show cause’ why I may not recommend that you be suspended from your office…pending investigations to be made on your competency as the president and the justice of the Court of Appeal,” Dr Thabane wrote.

It was against this background that on 10 July, the Law Society filed a constitutional application to stop the looming suspension of Justice Mosito. One of the Law Society’s members, Adv Nyabela states in the application that the premier’s move is without merit and “constitutes a bare and naked interference with the independence of the judiciary”.

“The cause for complaint by the prime minister is entirely the manner in which the Court of Appeal made decisions/rulings in certain appeals that came before the court and/applied rules of that court as well as the enforcement of the rules of the said court. All these matters are within the domain, purview and competence and function of the Court of Appeal and have nothing to do with the inability to perform one’s functions or misconduct.

“The directive of the prime minister constitutes a bare and naked interference with the independence of the judiciary entrenched under section 118 (2) of the constitution as well as the contravention of the hallowed doctrine of separation of powers. Such a directive from the prime minister is a serious threat to the rule of law and constitutionalism and is arbitrary and an abuse of powers,” Adv Nyabela states on behalf of the Law Society.

In terms of the interim relief, the Law Society wants Dr Thabane to be interdicted from recommending to King Letsie III to suspend Justice Mosito.

The Law Society also wants Justice Mahase interdicted from allocating the matter to any judge. It also wants King Letsie III to be “interdicted and restrained from acting on any advice or recommendation” by Dr Thabane to suspend and/or to appoint any tribunal to investigate Justice Mosito.

In terms of the final relief sought, the Law Society wants Dr Thabane’s show cause letter to Justice Mosito declared “unconstitutional, null and void”. They also want Dr Thabane’s intended recommendation to His Majesty for the suspension of Justice Mosito to be declared a “violation of the constitution of Lesotho’s doctrine of the separation of powers”.

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