Professor Mahao approaches Court of Appeal
…as ABC woes continue
THE Court of Appeal will next week Tuesday hear a matter in which Professor Nqosa Mahao is challenging the Sunday ruling of the High Court which dismissed the All Basotho Convention (ABC) Koro-Koro Constituency Committee’s challenge against the ABC Working Committee and six others.
This comes after Prof Mahao instructed his lawyers to lodge an appeal against the dismissal of the committee’s application to nullify his disqualification from contesting the party’s deputy leader post in the party’s 1 and 2 February elective conference.
The urgent High Court application was tabled on 8 January 2018 in a courtroom packed to the brim by the constituency committee’s chairperson Phohleli Phohleli and secretary Morake Keketsi.
Prof Mahao, Transport Minister Prince Maliehe, outspoken legislator and party chairman Motlohi Maliehe, Finance Minister Moeketsi Majoro, the Executing Working Committee of the ABC, the ABC National Executive Committee (NEC) and the ABC are cited as the first to the seventh respondents respectively.
The matter was heard on the 19th of January before Acting Chief Justice ’Maseforo Mahase who threw out the application on Sunday.
In an extempore ruling, Justice Mahase reserved reasons for judgment but upheld the submissions by the respondents’ counsel, Advocate Ranale Thoahlane.
In their submissions, Advocate Ranale Thoahlane appearing with Advocate Sepiriti, the respondents said the ABC is a private entity or a political party not a public entity which deals with administrative functions.
The lawyers said the ABC is a voluntary organisation, whose members are bound by their contractual relations and not subject to review as it does not perform public administrative powers.
The Koro-Koro committee was seeking an order nullifying both the decision by the ABC’s national executive committee (NEC) to disqualify Prof Mahao from contesting as well as its own suspension by the party after it launched its own spirited fight against the professor’s disqualification.
Koro-Koro wanted the court to “review, correct and/or set aside” the respondents’ decision to disqualify Pro Mahao from the elective conference set for 1 and 2 February 2019.
It wanted the respondents to show cause why: “The decision of the NEC to decline and or cancel the Koro-Koro constituency nomination of Prof Mahao as deputy leader of ABC shall not be declared null and void and of no force or effect”.
The committee also wanted the court to nullify its own suspension by the ABC for indiscipline after it convened a press conference to support Prof Mahao. It further wants the ABC’s directive to bestow the responsibility of running the Koro-Koro women’s and youth league committees to the party’s secretary general’s office reviewed and set aside.
Perhaps even more significantly, the Koro-Koro committee wanted clause 5 (e) of the ABC’s own constitution, which directs that a member of the party shall automatically forfeit their membership the moment they take the party to court, declared null and void because it contravenes the national constitution which guarantees everyone’s right of access to national courts.
Clauses in constitutions of organisations that seek to forbid members from using the national courts to seek redress whenever their rights are infringed have generally not found favour with the courts in many other countries.
Commenting after the ruling, Attorney Khotso Nthontho said: “We will have to appeal, that ruling is very wrong I am instructed to lodge appeal which starts on Monday when the court of appeal session starts”.
Mr Nthontho said they were appealing on the basis that the High Court had failed to dispense justice for the rights of his clients.
And on Tuesday, Prof Mahao represented by Adv Nthontho approached the Appeal Court arguing that the High Court “erred in characterising and formulating issues before it”.
He also said “the court of the first instance ignored the case before it brought by the Applicant instead Her Ladyship dismissed the counter application without adjudicating upon its merits”.
Prof Mahao also argues that the High Court “erred in law in that it was dealing with a single comprehensive application”.
“The court of first instance erred in law for not considering that the main application and counter application consist of separate applications, having a certain overlap and being argued at a combined hearing but separate and independent applications.”
“The court…erred in law for not hearing that the counter-application because the respondents only filed notice of intention to oppose but did not file their answering affidavit.
“The respondents only demonstrated their intention to oppose but the counter application is deemed not to be opposed failure by the respondents to file answering affidavit to counter-application,” the filed document reads.
Prof Mahao also argues that the High Court should have considered the urgency of the counter application and says it also erred for dismissing the counter application mero motu citing irregular procedure and without there being a request from the respondents for the dismissal of the case”.
According to Assistant Registrar of the Court of Appeal, Mositho Rabotsoa’s letter to Nthontho Attorneys, the President of the Court of Appeal understood the grounds of the appeal and “formed a view that your case is urgent”.
“I am therefore directed by the Honourable President to inform you that your case will be heard as an urgent appeal. You are directed to file your record of proceedings on or before 17 January 2019.
“The appellant is directed to file his heads on or before 18 January 2019. The respondents are directed to file their heads on or before 21 January 2019. The case shall be heard on 22 January 2019,” the letter reads.