- says Court of Appeal boss should have recused himself in Mahao cases
Mohalenyane Phakela
The age-old battle for supremacy between the offices of the chief justice and the president of the Court of Appeal has been re-ignited with full fury. This after the under-fire Acting Chief Justice ’Maseforo Mahase attacked Court of Appeal President Justice Kananelo Mosito, accusing him of undermining her and usurping the powers of the office of the chief justice.
The beleaguered Justice Mahase was recently on the receiving end of virulent criticism by the full Court of Appeal bench which overturned her controversial order nullifying the All Basotho Convention (ABC)’s 1-2 February 2019 elective conference which ushered in Professor Nqosa Mahao and others into the party’s national executive committee (NEC).
Last Friday, the apex court not only nullified her controversial order but also referred another case dealing with the ABC power struggle back to the High Court and directed that it be heard by any other judge not Justice Mahase.
Justice Mahase is nonetheless having none of it. She has penned an explosive letter to Justice Mosito accusing him of gross interference with the functions of her office. She also sensationally insists that Justice Mosito should have recused himself from the cases involving Prof Mahao because the latter was “his boss” at the National University of Lesotho (NUL). Prof Mahao is the outgoing Vice Chancellor of NUL and is set to retire on 31 May 2019. Judge Mosito lectures at NUL.
The Lesotho Times is in possession of a copy of the letter that Justice Mahase wrote to Justice Mosito on 27 May 2019. Both did not respond to requests for comment with Judge Mahase saying she was busy writing judgments.
However, lawyer Advocate Thulo Hoeane, who also came in for withering criticism from the apex court for his role in Justice Mahase’s 8 May 2019 default order nullifying the ABC elective conference, confirmed the authenticity of the letter.
Adv Hoeane went on to concur with Justice Mahase’s views that the apex court had “overstepped its mark and acted unprocedurally” regarding to the case concerning the ABC power struggle.
In the letter, Justice Mahase alleges that the Court of Appeal has been contravening procedural rules by entertaining appeals without seeking leave of the High Court “where such leave is necessary in terms of section 16 (b) of the Court of Appeal Act”.
Justice Mahase was particularly miffed that the Court of Appeal entertained Prof Mahao’s appeal against her 8 May order and barred her from presiding over the court challenge filed by the trio of prominent ABC legislators Habofanoe Lehana (Khafung), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe).
The trio filed their application on 11 February 2019 seeking an order to nullify the outcome of the ABC’s elective conference because of “massive vote rigging”.
But instead of passing judgment on that much-postponed case, Justice Mahase surprised everyone on 8 May 2019 when she 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.
Justice Mahase then granted the default order which nullified the ABC’s February conference on the grounds that the ABC constitution did not provide for the holding of NEC elections. She ruled that 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.
What made Justice Mahase’s default judgement questionable in the eyes of the apex court and her critics was that it was issued while the similar application by the trio of Messrs Lehana, Sello and Mohapinyane was still pending before her. She issued the default order the very same day she was supposed to hear the Lehana, Sello and Mohapinyane application. She did not hear that application claiming illness yet she at the same time got fit to convene her court for the default judgment.
Last Friday the apex court overturned her judgement after an appeal by the Mahao camp which had angrily dismissed it as a “fake judgement”. The Mahao faction had not been cited as a respondent despite its rights being directly affected by the order. This was the second time a Mahase judgment had been overturned by the Court of Appeal after it had earlier dismissed another one in which the Acting Chief Justice had barred Prof Mahao from contesting the ABC elections.
The Court of Appeal bench comprised of the court’s President Kananelo Mosito, Justices Philip Musonda (from Zambia), Petrus Damaseb (Namibia) and the Zimbabwean pair of Moses Chinhengo and Tafuma Mtshiya.
It has not all gone well with Justice Mahase who now accuses Justice Mosito of being an interested party. She insists that he should have recused himself from cases involving Prof Mahao.
“Your lordship, I am particularly shocked and greatly disturbed by the escalating instances where rules of court, including those of the highest court of the land, are being flaunted with impunity by some legal practitioners and the Court of Appeal turns a blind eye to such impunity, much to the detriment and disrepute of the smooth running of the administration of justice in this country,” Justice Mahase states in the letter to Justice Mosito.
“The Court of Appeal is issuing orders which interfere with the administrative powers of the office of the Chief Justice contrary to section 12 of the High Court Act No. 5 of 1978. In the recent appeal of the ABC versus Lehana and others, the Court of Appeal has remitted the matter to the High Court and further ordered that the matter be heard by a different judge. The Court of Appeal has ordered that despite the fact that this application is partly heard before the High Court and also despite the fact that there is an interlocutory order issued.
“The effect of this (apex court) order is to recuse me from the matter without the benefit of having had such a request placed before me by any of the parties; this is highly unprocedural and unheard of in this jurisdiction. The order of remittal (recusal) was granted despite the fact that it was never prayed for by any of the parties and therefore never a subject of appeal. The High Court was never served with any notice of appeal and the accompanying grounds of appeal.”
Justice Mahase also said that Justice Mosito should have recused himself from the ABC case involving Prof Mahao because the judge was employed at NUL along with Prof Mahao and Advocates Mabatṧoeneng Hlaele and Lehlohonolo Matee. The latter are lawyers for the Mahao camp.
“You (Justice Mosito) presided over the ABC matter despite the notoriously well-known fact that you are compromised.
“You (Justice Mosito), Prof Mahao, Adv Nkoea Thabane (Adv Hlaele) and Adv Matee are all employees of the National University of Lesotho, and that in fact, Prof Mahao who is one of the litigants in the Koro-koro and ABC matters respectively, is your “boss” or your employer for want of a better word. Do you not feel compromised or somewhat conflicted in presiding over matters in which they are all directly involved?
“As per the Court of Appeal roll of 2019, all judgements are due to be delivered on 31 May 2019. Is it therefore ironic that in the ABC matter, it was heard by five judges of appeal on 24 May 2019 and a judgement/order was delivered on that same day in the evening.
“The other worrying issue is the issuing of the timeframes by the Court of Appeal within which the High Court should have disposed of a matter remitted to it on appeal. What then would be the consequences should the presiding judge and for the reasons beyond one’s control, not complete that matter within the stipulated time by an order of the Court of Appeal? Are we going to see the Court of Appeal issuing contempt of court proceedings against High Court judges,” Justice Mahase further states.
Justice Mahase, would not comment yesterday saying she was “busy writing judgements” due for delivery tomorrow and she should be only contacted thereafter.
Justice Mosito did not respond to messages to his mobile phone last night.
The public relations officer of the judiciary, ‘Mabohlokoa Mapikitla, said Acting Registrar of the High Court, Pontšo Phafoli, and Court of Appeal Assistant Registrar, Mosito Rabotsoa, had professed ignorance of the letter.
Nevertheless, Adv Thulo Hoeane, insisted he had it on good authority that the letter had indeed been written and sent to Judge Mosito.
“I saw the letter on social media but I am familiar with its contents and I can assure you it is authentic as I have learned that from good authority.
“In the light of what has happened in this Court of Appeal session, my own assessment is that a lot of irregularities have taken place. A case in point is the Mahao issue which was heard by the Court of Appeal before obtaining leave from the High Court.
“One wonders on what basis the Court of Appeal heard the matter. If anything, the Court of Appeal is now micro-managing the High Court in that when it remitted the matter back to High Court, it gave a directive to the Acting Chief Justice that the case should be heard on a particular date, thus, interfering with the powers of the Chief Justice to determine how the business of the High Court is conducted. I think what is happening is more than just a power struggle because the president of the Court of Appeal is undermining the Chief Justice. This is now a debate about who is senior between the two but I think by right the Chief Justice is the boss of the president of the Court of Appeal,” Adv Hoeane said.
Justice Mosito was also criticised by a group calling itself ‘Concerned Basotho’. Three people purporting to represent the group of ‘Concerned Basotho” convened a press conference yesterday at which they attacked the apex court. They refused to divulge their names but issued a statement in which they implored the government to act against the apex court.
“The Court of Appeal went on to entertain and hear the matter of Lehana and others challenging the propriety of the ABC conference held on 1 and 2 February 2019, notwithstanding the fact that no leave to appeal had been sought from the High Court in terms of Section 16 of the Court of Appeal Act, the statement read.
“This is a flagrant departure from the way this court has been functioning over the years and the least that can be said about this is that this is regrettable conduct from a court that is supposed to be the last custodian of justice in this country.
“The Court of Appeal, having heard this matter under these bizarre and questionable circumstances, then hurriedly went on to issue orders, the net effect of which is to micro–manage the High Court. The forced recusal – for want of a better expression – of the Acting Chief Justice from this matter was undertaken notwithstanding that such prayer was never put before the Court of Appeal.
“The Court of Appeal saw it fit to fast track this matter and bring it forward to 28 May thus imposing time frames on the High Court and usurping powers of the Acting Chief Justice.
“Under the circumstances that Prof Mahao, Adv Hlaele and Adv Matee are inextricably linked to the NUL, the right and proper thing that Justice Mosito ought to have done was to have recused himself from any matter involving Prof Mahao and the others. We humbly implore the government to take a second look at the Court of Appeal which we believe has gone off the rails.”
Justice Mahase’s fight with Justice Mosito is reminiscent of other battles for supremacy that have occurred between chief justices and presidents of the apex court. One such battle was between disgraced Court of Appeal President Michael Ramodibedi and then Chief Justice Mahapela Lehohla. Their fight for superiority once assumed lunatic proportions when they once caused a scene trying to overtake each other for pride of place in arriving first at one of King Letsie’s birthday in an embarrassing bit to enforce seniority.
A committee set up by the suspended Chief Justice Nthomeng Majara proposed to settle the struggle for supremacy between the two offices by abolishing the Court of Appeal and replacing it with a Supreme Court of Appeal that is headed by the chief justice.
