…as Platcorp wants Justice Mosito off case
…accuses him of bias and usurping CJ Sakoane’s powers
Staff Reporters
PLATCORP Holdings Limited has asked Court of Appeal President, Justice Kananelo Mosito, to recuse himself from adjudicating its dispute with directors of its subsidiary Platinum Credit.
The recusal application comes in the wake of justice Mosito’s bizarre behaviour on Boxing Day 2024 in which he corralled his court to sit on a day that courts have never been known to convene.
Platcorp lists in its papers a number of instances in which Justice Mosito is alleged to have shown bias against the company. Platcorp has been fighting a multi-year legal battle to get its more than M280 million investment into Platinum Credit. It had invested the money into the micro lending business during the Covid-19 pandemic around 2020 before its directors fell out with the woman they had entrusted to manage their significant investment in Platinum Credit, Motena Lishea.
The dispute appeared to have been finally settled when Justice Moroke Mokhesi ruled on 17 September 2024 that Platcorp should get its money back. The money was moved by Standard Bank into the trust account of Platcorp lawyers’ Webber Newdigate for onward transfer to Platcorp.
But the Directorate on Corruption and Economic Offences (DCEO), whose now under fire Director General Knorx Molelle had ignored Platcorp’s fraud complaints against Lishea suddenly sprang into action and alleged the M280 million had been “laundered” in the first place. The DCEO then got orders halting the transfer of the money to Platcorp on the spurious allegations that it represented proceeds of crime”.
In an almost unprecedented change, Platcorp transmogrified overnight from being a winner of a major suit into a criminal suspect before the same Lesotho courts.
Lishea subsequently sought on 24 December 2024 to appeal Judge Mokhesi’s ruling to hand over the investment back to Platcorp. Despite that there are several preservation orders on the money, Platcorp was stunned when Judge Mosito went into overdrive over the Christmas break to hear Lishea’s appeal despite that it was never urgent. Justice Mokhesi’s ruling had been known for almost three months.
As reported in the Lesotho Times last week, the Court of Appeal was subsequently opened on Boxing Day to sneak the appeal. Platcorp believes the plan was to catch it off guard and grant Lishea’s appeal as this was peak holiday season when its representatives were all on holiday.
However, Platcorp’s lawyers were vigilant. They ensured their presence to oppose whatever arguments were being raised. And when Lishea could not file all her responding papers, the case was bizarrely postponed to Monday 15 January 2024, presumably to give her more time. The same had not been done for Platcorp.
The whole episode of Boxing Day stinks to the high heavens and Platcorp believes that it – and many other instances before it – prove that it cannot get a fair hearing before Justice Mosito.
Platcorp’s lawyers had fought tooth nail and claw to keep with the pace of events of Boxing Day. Despite being ambushed and not getting clear timelines to file their responses, they were there at the appeal court to ensure no default judgment was issued. Through their diligence, they worked overnight to forestall all the machinations to circumvent their client and argue their case.
They are vigorously opposing Lishea’s attempt to get Judge Mokhesi’s ruling overturned. The gist of their case – according to their court papers is that there was no urgency. The application was delayed for three months before the request on Boxing Day to be set down for hearing a day later on 27 December 2024, during the peak festive season. The DCEO’s preservation order issued on 10 October 2024 secured the funds in question, rendering the urgency moot. Simply put, there was no urgency, Platcorp argues.
PlatCorp’s lawyers also argue on procedural issues. They say the appellants failed to serve adequate notice of the hearing on 27 December 2024, breached Rule 18 of the Court of Appeal Rules, which requires two days’ notice for the filing of answering affidavits, attempted to obtain relief during the festive period without proper adherence to procedural fairness, thereby showing bad faith.
PlatCorp further argues that Lishea as appellant seeks relief from the Court of Appeal that is ultra vires because Rule 13(2) of the Court of Appeal Rules limits the Court’s jurisdiction to staying executions of criminal orders, not civil orders. The High Court, not the Court of Appeal, is the proper forum for such applications and any interpretation of Rule 13(2) that grants broader powers to the Court of Appeal would be unconstitutional.
By stampeding to hear the case, Justice Mosito was thus usurping the powers of Chief Justice Sakoane Sakoane, who is the right person to hear or allocate such civil matters. As appeal court judge, Justice Mosito cannot be both a court of first instance and an appeal court at the same time.
Platcorp lists many other instances in which it alleges bias by Justice Mosito as the history of the litigation has unfolded.
According to an affidavit filed by Platcorp Business Development Manager, David De La Harpe, the company believes Justice Mosito will not be fair to them. He refers to a 2023 letter in which Platcorp’s lawyers’ Webber Newdigate addressed procedural anomalies and irregularities in the Court of Appeal’s handling of disputes involving Platcorp and Platinum Credit Limited to the Justice and Law ministry. Judge Mosito had not taken kindly to the letter and subsequently issued remarks criticizing Platcorp’s lawyers.
He also expressed deep concerns over the events of Boxing Day 2024 in which a hearing was convened absent notice to Platcorp.
Most damning of the allegations by Platcorp is Mr Harpe’s accusation that Justice Mosito has had private meetings with Lishea’s lawyer, Advocate Rethabile Setlojoane, without notifying or including Platcorp’s legal representatives, prior to the hearing of 27 November 2024.
“The events that unfolded at the hearing (of 27 Dec 2024) call into question the impartiality of the President of the Court of Appeal, respectfully,” Mr Harpe states.
He argues that such conduct was highly irregular in opposed applications and created the impression that Justice Mosito had already formed a view on the matter.
“In the circumstances, we have a perception of bias that the President of the Court of Appeal was not impartial, acted irregularly by having a (perceived) conversation with Advocate Setlojoane, and already exercised his discretion in respect of the merits when he granted an interim order pending finalisation of the application,” Mr Harpe claims.
He argues that the cumulative effect of these factors created a reasonable apprehension of bias and warranted Justice Mosito’s recusal.
“The fundamental principle is that justice must not only be done but must also be seen to be done. The President of the Court of Appeal’s continued involvement in these matters creates subjective doubt in our minds that the fairness and integrity of the proceedings will not be maintained. We are of the view that an objective and informed person will come to the same conclusion.”
Platcorp also raised concerns about statements made by Justice Mosito during the opening address of the April 2023 appeal session. These remarks allegedly suggested a preconceived stance on jurisdictional issues.
The matter will be heard on 5 February 2025.
