- nullifies Mahao and others’ election to ABC’s NEC
- default judgement shocks Mahao faction
Mohalenyane Phakela
THE battle for the heart and soul of the ruling All Basotho Convention (ABC) yesterday took a dramatic twist after the Acting Chief Justice, ‘Maseforo Mahase, nullified the party’s 1 and 2 February 2019 elective conference which ushered in Professor Nqosa Mahao and others to the ABC’s national executive committee (NEC).
Justice Mahase delivered the default judgement in an ex parte (one sided) application that was filed in the High Court on Tuesday and moved yesterday by Advocate Thulo Hoeane on behalf of his clients, Motseki Lefera, ’Matumisang Ntiisa and Martha Makhohlisa.
The old ABC’s NEC and the ABC, who were cited as the first and second respondents respectively, did not oppose the trio’s application, leaving Justice Mahase to issue a default judgement which is certain to escalate the tensions in the fractious ruling party.
It was a court application and verdict which caught the Mahao faction by surprise. Yesterday, the spokesperson of the pro-Mahao faction, Montoeli Masoetsa, dismissed the default judgement by Justice Mahase and vowed to pursue a political solution to ensure they were allowed to assume office.
All party posts except that of Dr Thabane were up for grabs at the February conference. The biggest winner was the outgoing National University of Lesotho (NUL) Vice Chancellor Prof Mahao who was elected deputy leader. He clinched the coveted post ahead of Finance Minister Moeketsi Majoro, Public Works and Transport Minister Prince Maliehe and former party chairperson, Motlohi Maliehe. As deputy leader, Prof Mahao became the frontrunner to succeed Dr Thabane in both party and government when the veteran leader eventually calls it a day.
Others who were elected into the new NEC are Dr Thabane’s son-in-law, Lebohang Hlaele (secretary general), Samuel Rapapa (chairperson), Chalane Phori (deputy chairperson), Nkaku Kabi (deputy secretary general), Tlali Mohapi (treasurer), Likhapha Masupha (secretary), Montoeli Masoetsa (spokesperson) and ‘Matebatso Doti (deputy spokesperson).
However, Prof Mahao and his colleagues have not been able to assume power due to fierce resistance from the old NEC as well as the 11 February 2019 court challenge by three ABC legislators, Habofanoe Lehana (Khafung), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe). The old NEC, which is said to enjoy Dr Thabane’s backing, has declared that it is only prepared to compromise and allow the new NEC into office if Prof Mahao steps down as deputy leader. It says that Prof Mahao, who joined the ABC in 2015, is a “relative newcomer” who should not be allowed to succeed Dr Thabane ahead of more seasoned ABC politicians who formed the party almost 13 years ago in 2006.
While all eyes had been on the much delayed court application that was filed before Justice Mahase in February by Messrs Lehana, Sello and Mohapinyane, the struggle for control of the ABC could have been decided by the case that was quietly filed by the unheralded trio of Lefera, Ntiisa and Makhohlisa.
Unlike Messrs Lehana, Sello and Mohapinyane who argued that the February elective conference results should be nullified on the grounds that it was marred by vote rigging, the trio of Lefera, Ntiisa and Makhohlisa argued that the elective conference should not have been held at all because the ABC constitution does not provide for it. They argued that the new NEC’s election should be nullified and the old NEC be allowed to remain in charge on an interim basis while superintending over processes that should culminate in the amendments to the ABC constitution to provide for NEC elections.
In her brief judgement delivered yesterday, Justice Mahase, states that having heard Adv Hoeane for the petitioners…it is hereby ordered that the proceedings of the ABC held on the 1st and 2nd days of February 2019 be declared null and void”.
“It is also ordered that the respondents should continue to execute the functions of the national executive committee in line with the constitution of the ABC for a period not exceeding 12 months from the 8th of May 2019 as an interim NEC.
“The interim NEC should make all the necessary preparations with the relevant structures of the ABC to effect the requisite amendments to the constitution of the ABC to make provision for the election of all members of the NEC which are not currently provided for in the constitution of the ABC.”
In a subsequent interview with the Lesotho Times yesterday, Adv Hoeane said his clients were justified in seeking the nullification of the February 2019 elective conference on the grounds that it was not provided for in the ABC constitution.
“The first petitioner (Lefera) was a voting delegate at the February conference from the Mechachane constituency while the other two petitioners were voting delegates from the Mabote constituency. We had to serve the papers on the old NEC because there is an interim order that they should continue in office until the dispute over the elective conference (that was filed by Messrs Lehana, Sello and Mohapinyane) is sorted out by the court.
“I served them (old NEC) with the court papers on Monday and this morning (yesterday) I appeared before Justice Mahase and moved the application. There was no objection from the old NEC who had been served with the papers so this is a default judgement.
“The petitioners are saying those February elections should be declared null and void because they are not provided for in the ABC constitution.”
When it was pointed out to him that the ABC has previously held NEC elections including those that ushered in the old NEC, Adv Hoeane said the elections were only held as a convention in the ABC but they did not necessarily have any legal basis.
“Strictly speaking there is no clause that provides for NEC elections. So after declaring them null and void, Justice Mahase’s order comes up with a roadmap that the old NEC should continue to execute the functions of the NEC for 12 months from 8 May 2019. During this period the interim NEC should make all the necessary preparations to effect the necessary amendments to the constitution of the ABC to provide for the election of all members of the NEC which are not currently provided for in the constitution of the ABC,” Adv Hoeane said.
He further said that as a result of yesterday’s order by Justice Mahase, the other application by Messrs Lehana, Sello and Mohapinyane should fall away.
“Everything falls away because the February elections have been declared null and void. The Lehana, Sello and Mohapinyane application is now just of academic interest. Most probably when they come before her, she will show them this order which she granted this morning (yesterday).”
The latest judgement by Justice Mahase will likely set the stage for another bruising legal contest. Prof Mahao has previously said that they will appeal to the Court of Appeal should they lose the case for their election. It is however, not clear when they will lodge their appeal as the apex court was suspended allegedly because there is no money to fund its operations. The Mahao camp however, believes the suspension of the Court of Appeal is a politically motivated decision designed to ensure that they do not take their appeal to the apex court.
Yesterday, the spokesperson of the pro-Mahao faction, Montoeli Masoetsa, dismissed the default judgement by Justice Mahase and said they would pursue a political solution to ensure they were allowed to assume office.
“We are going to take a political approach to solve this matter and very soon it will be dog eat dog. Just watch this space,” Mr Masoetsa said.
Meanwhile, Justice Mahase made no reference to her earlier default judgement when she later presided over the Lehana, Sello and Mohapinyane application. Rather, she reserved her stinging criticism for the inter-party protestors who marched against her on Friday. She said the protestors who coalesced under the banner of the Voice of the Voiceless Association (VOVA), had insulted her and the entire judiciary and she would soon seek advice as to what course of action to take against them.
She also postponed the Lehana, Sello and Mohapinyane application to 14 June because she was “not physically fit to hear the case”. (See separate story on page 4).
Meanwhile, the lawyers for the applicants and respondents in the Lehana, Sello and Mohapinyane case said they were shocked by Justice Mahase’s order which nullified the outcome of the February elections.
They said the decision was likely to render their own case irrelevant because the same judge had already declared the ABC elections results null and void.
“We only learned of the other case and its judgement through social media just before coming to court this afternoon. Before that, we did not know that there was another court challenge to the outcome of the February elections,” said Advocate Khotso Nthontho who is one of the lawyers for the respondents.
One of the applicants’ lawyers, Adv Rapapa Sepiriti said that the two applications should have been merged because they were filed against a similar issue of the February elections.
“Although the two cases were filed at different times, they should have been consolidated and be deliberated on as one case. But then again, it has to be at the discretion of the judge.
“The case seems to have been filed later than ours but I cannot say why the judge found it fit to address it and rule over it before ours. The judgement renders our case academic but I will have to first study its papers because I only learned about it when I was about to enter the court for our own case. I must also consult with my clients who will advise on the way forward,” Adv Sepiriti said.
