Nat Molomo
THE Law Society of Lesotho’s Constitutional Court application for an order barring Prime Minister Thomas Thabane from ousting Court of Appeal President Kananelo Mosito will be heard today.
The case was to have been heard on Monday but it could not proceed after Justice Thamsanqa Nomngcongo called in sick. High Court Registrar, Advocate Stafford Sharite, confirmed the postponement of the case in an interview with the Lesotho Times this week.
“The case was supposed to be heard on Monday but it was postponed in chambers because one of the judges, Thamsanqa Nomngcongo is ill,” Mr Sharite said adding the case will be heard today by Justices Nomngcongo, Keketso Moahloli and Moroke Mokhesi.
He however, did not reveal the nature of Justice Nomngcongo’s illness. The judge has been ill over the past two months and his illness delayed the finalisation of embattled All Basotho Convention (ABC) deputy leader, Professor Nqosa Mahao, and four others’ application challenging their “expulsion” from the ABC by Dr Thabane.
The application was initially supposed to be heard on 26 June 2019 by the High Court bench comprising of presiding judge Nomngcongo and Justices Sakoane Sakoane and Moroke Mokhesi.
The case did not proceed after Justice Sakoane stated that Justice Nomngcongo had been taken ill.
Again on 29 July 2019, the case failed to proceed as Justice Nomngcongo was still unwell. Justice Nomngcongo made an appearance in court on that day (29 July) and he was visibly unwell with a swollen face.
“I am not feeling well and as you can see, this is not the face that I normally carry,” Justice Nomngcongo said on the day.
It remains to be seen if he will be well enough today to take his place along fellow judges in the Mosito case.
Late last Thursday, the Constitutional Court issued an interim interdict barring Dr Thabane from suspending and recommending the setting up of a tribunal to impeach Justice Mosito pending the finalisation of the Law Society’s application for a final order barring the premier from acting against the top judge.
Dr Thabane has already failed in two previous bids to oust Justice Mosito on the grounds that he had interfered with the administrative functions of Acting Chief Justice ‘Maseforo Mahase.
Last Thursday’s interim interdict, issued by Justice Nomngcongo, is the third such to be issued against Dr Thabane who appears hell-bent on removing the apex court boss who he fought so hard to reinstate throughout 2017 and 2018.
On 7 August 2019 the Court of Appeal issued an interim interdict barring Dr Thabane from suspending Justice Mosito pending the finalisation of the Law Society of Lesotho’s Constitutional Court application. The Law Society argues that Dr Thabane’s move is without merit and “constitutes a bare and naked interference with the independence of the judiciary”.
Before that on 18 July 2019, High Court judge Justice Semapo Peete had issued an interdict barring Dr Thabane from suspending Justice Mosito pending the Court of Appeal’s 25 July 2019 hearing of the Law Society’s application.
But on 19 July 2019, Dr Thabane refused to accept the interim order telling the sheriff of court who had brought it to his office to “take it back to where it came from”.
The premier was later forced to eat a humble pie and agree to an our-of-court settlement with his ABC rivals, including Prof Mahao, to drop his bid to oust Justice Mosito on the grounds that the latter had interfered with the administrative functions of Justice Mahase.
Justice Mahase also agreed to withdraw her 27 May 2019 letter accusing Justice Mosito of interfering with her administrative functions. Justice Mahase’s letter had been seized upon by Dr Thabane and used as the basis for his own 5 July 2019 letter to Justice Mosito demanding that the apex court boss “show cause” why he should not be suspended and impeached for interfering with the functions of the chief justice’s office.
The deed of settlement which was subsequently endorsed by Court of Appeal judges, Petrus Damaseb (presiding judge), Moses Chinhengo and Tafuma Mtshiya states that “the first and second respondents (Dr Thabane and Justice Mahase) hereby unequivocally withdraw letters that they have hitherto written to the President of the Court of Appeal”.
That notwithstanding and also despite the pending Law Society application, Dr Thabane renewed his bid to oust Justice Mosito on 14 August 2019.
This time the premier argued that Justice Mosito’s employment at the National University of Lesotho (NUL) “might compromise your independence, impartiality and competency as a judicial officer”.
In the 14 August 2019 letter to Justice Mosito, Dr Thabane states that the former’s continued employment at the NUL despite his (Dr Thabane’s) order for him to resign from the university is an act of misconduct that compromises the top judge’s independence, integrity and competency as a judge.
Dr Thabane has however, been matched in his relentless bid to oust Justice Mosito by the Law Society who are equally determined to stop this from happening.
Last Thursday the society filed another Constitutional Court application to stop Dr Thabane from suspending Justice Mosito.
Dr Thabane, Acting Chief Justice ‘Maseforo Mahase, His Majesty King Letsie III and Attorney General Haae Phoofolo are first to fourth respondents respectively in the application to be heard today.
“The first respondent (Dr Thabane) be interdicted from recommending to the third respondent (His Majesty) the suspension of the President of the Court of Appeal pending finalisation of the main application (still pending before the Constitutional Court),” the Law Society states in its court papers.
“The first respondent (Dr Thabane) be interdicted and/or restricted from advising His Majesty King Letsie III to establish a tribunal aimed at inquiring into the fitness of the President of the Court of Appeal to hold office on the basis of the first respondent’s letter of 14 August 2019.”
The Law Society also wants an order declaring that Dr Thabane’s 14 August 2019 letter was issued in contravention of the sub judice principle “and hence irregular and in violation of the rule of law”.
The Law Society contends that Dr Thabane violated the sub judice principle by moving to oust Justice Mosito despite knowing fully well that his previous bid to do the same was still under judicial review.
