Mohalenyane Phakela
COURT of Appeal president Kananelo Mosito and fellow judges in the apex court have blasted politicians for turning the courts into arbiters of political disputes which could otherwise be solved through intra-party dialogue.
Justice Mosito said there could only be one winner when political disputes were decided by the courts. He said the politicians were better off negotiating as this allowed them to strike mutually beneficial deals that could save their parties from disastrous splits.
He said this during the first day of the Court of Appeal’s special session that was convened to hear urgent appeals including former army commander, Lieutenant General Tlali Kamoli’s appeal against the recruitment of foreign judges to try his and other cases involving former and serving members of the security agencies.
Four out of the five cases scheduled for this week’s special apex court sitting involve the Thomas Thabane-led strife-torn All Basotho Convention (ABC) party.
“I am worried about the issue of playing politics in court because once the matter is decided by the court, there can only be one winner unlike when politicians solve their problems through negotiations outside the court,” Justice Mosito said during Monday’s roll call.
“Politicians play their games based on their egos, emotions and the numbers that support them. But the court bases its decisions on the law and when judgements are delivered, politicians cry foul over the courts’ decisions.”
Another apex court judge, the Namibian Justice Petrus Damaseb called on lawyers to advise their clients not to rush to the courts at the earliest sign of political disputes. He said they should explore other platforms including rallies to resolve their issues.
“Political protagonists have other platforms to fight and that is why they host rallies as one area where they can fight their battles. I have been in this court for a few years now and I am worried by the growing trend of political matters being brought to court.
“It is further saddening to see lawyers also adopting that style of not taking the courts seriously but turning them into political playgrounds. Counsels, as the officers of this court, it is your duty to protect its integrity. You took oaths when you were admitted to assist the courts in delivering justice and not to turn them into political circuses like you are doing,” Justice Damaseb said.
The Court of Appeal will preside over ABC deputy leader Professor Nqosa Mahao and four others’ application to have Acting Chief Justice ’Maseforo Mahase barred from presiding over their High Court application seeking the nullification of their ‘expulsion’ from the ABC by Dr Thabane.
The quintet also want the apex court to set aside Justice Mahase’s 4 July 2019 interim order which barred them from holding a special ABC conference on 6 July to expel Dr Thabane and other senior officials from the ABC. Prof Mahao and his allies were not only peeved by the adverse judgement but also by the manner in which it was issued. Not only did Justice Mahase turn down their application for her to recuse herself from the case that had been brought against them by Dr Thabane and deputy secretary general Nkaku Kabi, they were also left seething by the judge’s refusal to hear the case in an open court.
In their latest appeal in the Court of Appeal, the five argue that Justice Mahase acted contrary to the provisions of the Judiciary Act and the Court of Appeal orders, including the 24 June 2019 apex court order which directed the High Court registrar to be the one allocating cases not Justice Mahase.
They further argue that Justice Mahase misdirected herself by refusing to recuse herself from the case brought against them by Dr Thabane and Mr Kabi and that she went on to issue orders without affording their lawyers a hearing. Yesterday the Mahao camp withdrew its application to have Dr Thabane interdicted from suspending and impeaching Justice Mosito. This after the two sides reached an out of court settlement where Dr Thabane unconditionally agreed to withdraw his letter demanding that Justice Mosito “show cause” why he should not be suspended for allegedly interfering with the administrative functions of Justice Mahase.
Tomorrow, the Court of Appeal will also preside over an application by the former NEC of the ABC against the apex court’s 1 February 2019 judgement which struck down clause 5 (e) of the ABC constitution which states that any member who sues the party without exhausting all internal processes automatically expels himself from the party. The apex court struck down the clause on the grounds that it deprived ABC members of their constitutional right to seek redress in the courts of law. However, in their appeal, the old NEC argues that the apex should not have struck down the clause as it was not part of the prayers sought by the ABC’s Koro-Koro constituency committee which had filed a case to challenge the party’s decision to bar Prof Mahao from contesting for the deputy leadership position at the party’s February 2019 elective conference.
On Friday, the Court of Appeal is expected to issue judgements for all five cases including Lt-Gen Kamoli and others’ petition against the recruitment of foreign judges to preside over their murder and attempted trials.
