Moorosi Tsiane
THE directors and officers of multi-national financial services company, Platcorp Holdings Limited, will have to wait until Friday 14 February, 2025, to know if Court of Appeal President, Kananelo Mosito, will recuse himself from a case in which they are seeking to retrieve their M280 million invested in Lesotho.
Judge Moroke Mokhesi had on 17 September 2024 ruled that Platcorp could have its money, which it had invested in micro landing company, Platinum Credit, back. But the process was sabotaged by the Directorate on Corruption and Economic Offences just as the money had landed into the trust account of Platcorp’s lawyers, Webber Newdigate.
The DCEO alleged the money had been “laundered”. While that new criminal leg of the case plays out, the directors of Platinum Credit, Motena Lishea and Nthabiseng Nthako, on 24 December 2024 went to Justice Mosito to appeal Judge Mokhesi’s ruling.
Lishea and Nthako are fighting to have access to the money despite that it is alleged to be “proceeds of crime” and must of necessity be forfeited to the State.
High Court Judge ‘Maseforo Mahase had issued another order preserving the funds pending the finalization of all litigation. Platcorp had invested the money in Platinum Credit on the basis of deferred share sale agreements with Lishea before the latter reneged on those agreements and refused to hand-over the company to Platcorp.
Justice Mosito partially heard the appeal case on 27 December 2024.
However, before the matter resumed on 13 January 2025, Premium Credit SA and Platcorp Holdings filed an interlocutory application seeking his recusal and requested a panel of three judges to preside over the case. They accused Justice Mosito of having had private meetings with Lishea’s lawyer, Advocate Rethabile Setlojoane, without notifying or including Platcorp’s legal representatives, prior to the hearing of 27 December 2024.
PlatCorp and Premier submitted several undisputed facts in support of their application:
- Advocate Setlojoane did not request interim protection of the funds in open court.
- The suggestion to grant interim relief did not arise in open proceedings.
- The President exercised discretion in granting interim relief, which was acknowledged as appropriate by Advocate Setlojoane for Platinum Credit Ltd and Motena Lishea.
- Advocate Setlojoane did not challenge the evidence regarding the undertaking and preservation order preventing dealings with the funds.
Before proceeding yesterday, Justice Mosito asked both parties if they preferred to argue the case in segments or holistically, as Lishea and Nthako had raised a point of law regarding Platcorp’s Business Development Manager, David De La Harpe, whom they alleged to be a “fugitive”.
Both parties agreed to argue the matter holistically, with Platcorp’s lawyer, Advocate Jaco Roux SC, taking the first bite.
He started by first arguing to the court that his clients, Platcorp Holdings and Premium SA, who were seeking Justice Mosito’s recusal, were never served with warrants of arrest and, therefore, cannot be called fugitives.
“…The recusal application is not filed by the individuals but by the companies, and there are no arrest warrants issued to such companies. It cannot be right to call them fugitives. The applicants (Platcorp) in this matter have a locus standi.”
On the recusal application, Adv Roux submitted that his clients have a reasonable apprehension that Justice Mosito will not be impartial in the matter, based on the 27 December 2024 events during the virtual hearing of the case.
“…The events that unfolded at the hearing call into question the impartiality of the President of the Court of Appeal, respectfully. Suffice to state that the abovementioned, together with the historic events that have transpired in the Court of Appeal regarding ‘urgent’ interlocutory applications between the above parties, leading up to the hearing set down on 27 December 2024, have created a reasonable apprehension of bias that the Honourable President of the Court of Appeal is not impartial, which negatively affects our right to a fair hearing.
“On 7 February 2023, representatives of Platcorp addressed a letter to the Minister of Justice and the Secretary of the Chief Justice, highlighting procedural anomalies and alleged irregularities in the Court of Appeal’s handling of disputes involving our clients and Platinum Credit Limited, particularly relating to the manner in which the Honourable President of the Court of Appeal exercised his discretion in respect of Rule 18 interlocutory applications… The content of the letter came to the Honourable President’s attention, and he was aggrieved by its contents and the fact that the same was not canvassed with him or transmitted to him directly,” submitted Adv Roux.
On his part, Advocate Griffith Lejakane, representing Lishea and Nthako, counter-argued that the deponent (De La Harpe) in the recusal application wa a “fugitive”.
“My Lord, the deponent in the matter is exiling in relation to the charge laid against him at the magistrate’s court. The person (De La Harpe) who deposed the affidavit in this matter has been declared a fugitive, and a fugitive cannot be a competent witness before the court,” argued Adv Lejakane.
Adv Lejakane further argued that the warrants of arrest against Platcorp Holdings directors were not issued under common law and, therefore, it cannot be said that they have been stayed by their pending appeal at the High Court.
“The warrants were not issued under common law, and for them to say their appeal has stayed those warrants cannot be the truthful.”
On the recusal application, Adv Lejakane accused Platcorp of attacking the judiciary, arguing that their application was based on assumptions, not facts.
“This application is just a mere way of trying to attack the judiciary because there are no facts to say the judge is going to be impartial.
“They are saying you (Mosito) made a speech in 2023 during the opening of the Court of Appeal and are coming up with assumptions that, because of that speech, you will not be fair to them. But the issue of recusal talks about the correct facts, and that speech has nothing to do with this case.
“We have to respect this court; we cannot take the 2023 issue and bring it before this court. Also, these assumptions that you held talks with Adv Setlojoane are not even supported. This is just a mere way of trying to attack the judiciary, as there are no facts to back their assumptions that the court is going to be partial. It is our humble submission that this matter be dismissed with costs,” said Adv Lejakane.
Adv Roux in closing arguments emphasized the fact that the legal principle that corporations facing criminal charges must have warrants served on a natural person in a representative capacity, that no warrants of arrest had been issued against Platcorp or Premier as corporate entities, that the context of the case should be considered holistically rather than in isolation, particularly in light of past litigation and ongoing proceedings and that a case was made out as prayed.
After hearing both parties, Justice Mosito reserved the judgment on the matter to 14 February 2025.
