Mahao faction turns to Court of Appeal

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Mohalenyane Phakela

THE Court of Appeal has set the 24th of this month as the date that it will hear an application by the Professor Nqosa Mahao faction of the All Basotho Convention (ABC) for the rescission of last week’s verdict by the Acting Chief Justice, ‘Maseforo Mahase, which nullified their election as the national executive committee (NEC) of the ruling party.

The Mahao faction also wants the Court of Appeal to overturn another Justice Mahase ruling that Mr Lebohang 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 1 and 2 February 2019 elective conference, deposed the affidavit in the case in which the outcome of the February conference was challenged by three ABC legislators, Habofanoe Lehana (Khafung), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe).

The court application by Messrs Lehana, Sello and Mohapinyane has been pending before Justice Mahase since it was filed on 11 February. However, the Acting Chief Justice stunned the Mahao faction last Wednesday when she on to deliver judgement in a separate but similar application that was brought before her by the unheralded trio of ABC members, Motseki Lefera, ’Matumisang Ntiisa and Martha Makhohlisa.

Justice Mahao nullified the ABC’s February conference and ruled that the old NEC should remain in office as the interim NEC for a year and during that time they should work on amending the ABC constitution to provide for the holding of NEC elections which it currently does not provide for.

However, the Mahao faction which was not cited in the last week’s case, are not taking the verdict lying down and they want the Court of Appeal to overturn Justice Mahase’s ruling. They also want her earlier ruling that Mr Hlaele does not have the legal standing to act on behalf of the ABC’s NEC to be overturned.

The applicants are the ABC’s NEC which was elected in February, Lebohang Hlaele, Matebatso Doti, Montoeli Masoetsa and Samuel Rapapa.

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

“We humbly request that the matters filed before the Court of Appeal be consolidated,” one of the applicants’ lawyers, Advocate Patsa Mohapi told the court.

“The matter which nullified the February elections of ABC came before Justice Mahase on 8 May who was fully aware that there was a similar case which was before her still targeting the same elections. She further made an adverse decision against members of the ABC committee democratically elected without them being cited in the matter. Since they are affected, they demand to be joined to the appeal as intersected parties.

“Justice Mahase further misdirected herself in deciding that Mr Hlaele was not properly authorised to depose an affidavit on behalf of the ABC’s NEC. She made that ruling before we argued the issue of whether Mr Hlaele had the authority to do so.”

Another lawyer for the applicants, Advocate Mabatṧoeneng Hlaele, appealed to the court to hear the matter on urgent basis because it was of public interest and had the potential to paralyse the government as ABC was the major party in the coalition government. The ABC joined forces with the Alliance of Democrats, Basotho National Party and the Reformed Congress of Lesotho to form the governing coalition in June 2017.

“The fact that the ABC is the main coalition partner with the highest numbers and that the governance of ABC rests entirely on the NEC, means that the fighting directly affects government because the collapse of the ABC will lead to collapse of the coalition government.

“We pray that the apex court hears the matter on an urgent basis to determine who has the right to run the ABC to avoid a collapse of the government.

“We further ask for the consolidation of the two matters because if the one which nullifies elections is dealt with on its own, we are afraid that we will be before the same court again in future regarding the same matter which is still pending in the High Court,” Adv Hlaele said.

However, Messrs Lehana, Sello and Mohapinyane’s lawyer, Advocate Rapapa Sepiriti, argued that the Court of Appeal did not have the jurisdiction to hear the matter involving his clients because it was still pending in the High Court.

“The Court of Appeal rules are clear that this court can only review orders which have been decided on by the High Court and in this instance, our matter is still pending before the High Court therefore they cannot appeal a case which has not been finalised. There are other remedies they can pursue before the High Court.

“Furthermore, they (applicants) speak of unsubstantiated reasons that the government may collapse. My clients’ case has not been concluded therefore it cannot be consolidated with a matter which has been finalised” Adv Sepiriti said.

The presiding judge, Justice Philip Musonda, adjourned the court for a few minutes in order to prepare a ruling. He heard the Mahao application together with Justices Moses Chinhengo and M. Mtyia.

Justice Musonda subsequently ordered that “the appeal will be heard on 24 may 2019 as an urgent matter” and that “both parties should file written submissions on joinder and consolidation by 20 May 2019”.

 

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