Thabane has no powers to fire ABC members: Judge
In an ominous sign for Prime Minister Thomas Thabane, a judge of the High Court has declared that the All Basotho Convention (ABC) leader has no right to expel members of his party without ratification by the party’s national executive committee (NEC). But the judge said the NEC was itself vested with powers to suspend or expel the leader and questioned why it had not deployed such powers against Dr Thabane already if it felt he was being a nuisance.
High Court judge Sakoane Sakoane made his remarks as pressure to oust Dr Thabane from office mounted with Movement for Economic Change (MEC) leader Selibe Mochoboroane vowing this week to never lend his party’s six seats to save Dr Thabane from a parliamentary no confidence vote (see story on page 6).
The judge made the remarks during a hearing of an urgent court application to, among other things, nullify Dr Thabane’s purported expulsion of several high ranking members of the party’s new NEC elected at its February 2019 elective conference.
The fight for the control of the ABC scaled new heights when Dr Thabane convened an open air press conference on 17 June 2019 to announce the expulsion from the party of deputy leader Professor Nqosa Mahao, secretary general Lebohang Hlaele, chairperson Samuel Rapapa, and deputy spokesman ‘Matebatso Doti.
This was despite the Mahao group having won an earlier court case in which the High Court upheld their election after it had been challenged by three ABC legislators who bizarrely alleged rigging at the elective conference.
The Mahao group was back in court yesterday with an urgent application seeking to, among other things, have Dr Thabane held in contempt of court for purporting to expel them despite the High Court order which found they had been properly elected. The group also sought to have the purported expulsions revoked as well as have Dr Thabane barred from making unilateral decisions and interfering with the work of the new NEC.
There was no full judgment issued and the reliefs sought were not immediately granted. But judge Sakoane issued the ominous remarks during proceedings. The remarks can only complicate the premier’s political life unless he finds a formula to make peace with his rivals.
Judge Sakoane said he did not see any need to grant one of the reliefs sought to revoke the purported expulsions since the new NEC had already correctly resolved that Dr Thabane did not have powers to suspend or expel party members without ratification by the NEC.
The judge also said the ABC constitution provided for the NEC to discipline its leader through the same processes used to rein in former secretary general Samonyane Ntsekele and another member Motseki Lefera. The new NEC has already suspended Messrs Lefara and Ntsekele, who is also the minister of water affairs, from the ABC citing insubordination.
Judge Sakoane asked rhetorically why the new NEC was not taking similar action against Dr Thabane.
He asked the applicants why they had not reported Dr Thabane to the police or even recalled him if he was destabilising the party. The judge said the NEC had powers to rein in the leader if they believed he was no longer acting in the interests of the party.
“You (applicants) have submitted that there will be bloodshed if the leader is not arrested or interdicted from confusing party members by insinuating violence. Was any crime reported to the commissioner of police and why is the commissioner of police not cited in this matter if the leader needs to be arrested for he is not above the law?
“…If recalling him can be the solution why has the NEC not done so? Internal remedies have not been exhausted because the NEC has not exercised its power in reining the leader.
“The constitution (of ABC) says the NEC can discipline and even expel members. Why can’t they do to the leader what they did to (Samonyane) Ntsekele and Lefera?
“…. Asking us to interdict him from insinuating violence is like asking us to make an order barring a thief from breaking into a shop,” Justice Sakoane said with a tinge of sarcasm.
Justice Sakoane was part of the three judge panel that on June 12 2019 dismissed the bid by the three ABC legislators — Habofanoe Lehana (Khafung), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe) — to have the new NEC’s election nullified.
The other two judges were Thamsanqa Nomngcongo and Moroke Mokhesi. However, Justice Nomngcongo was not in court for the latest urgent application yesterday as he was reported ill.
The applicants in the latest case are Prof Mahao, Messrs Hlaele, Rapapa, Montoeli Masoetsa (the spokesperson ) and his deputy ‘Matebatso Doti. The respondents are Dr Thabane, the ABC and its NEC.
Judge Sakoane’s obiter remarks essentially mean that Dr Thabane’s decision to expel the new NEC members is null and void, a development that can only add more pressure on the embattled premier.
In a week of heightened drama, Dr Thabane had convened the open air 17 June 2019 press conference to announce their “expulsions” from the ABC for alleged insubordination for holding parallel rallies despite his express orders not to do so.
But the new NEC officials immediately hit back with a press conference of their own where they vehemently and unequivocally rejected the “expulsions”.
Dr Thabane had addressed the open air press conference after being locked out of the party’s offices by the Mahao group, which had seized the premises shortly after being legitimised by the High Court. A gunfight nearly ensued at the offices as security details of both parties staked their claims over party assets.
The urgent court action seeking to have Dr Thabane declared in contempt was initially launched last Wednesday but withdrawn the next day as the Mahao group sought to tighten it. It was then refiled this week on Monday and heard yesterday.
“The decision of the first respondent (Dr Thabane) taken on 17 June 2019 expelling the applicants as members of the ABC (must) be set aside as null and void. The first respondent (Dr Thabane) as the leader of the second respondent (ABC) does not have the powers to expel any member of the ABC without ratification by third respondent (NEC),” part of the urgent application read.
“The first respondent (Dr Thabane must) be interdicted from taking unilateral decisions and interfering with the affairs of the second respondent (ABC) without involvement of the full contingent of the third respondent (NEC).
“The first respondent (Dr Thabane must) be found guilty of contempt of an order of court dated 12 June 2019. In the event the court finds the first respondent guilty of contempt, he shall be ordered to purge his contempt, failing which he be committed to jail for period determinable by the court.”
In his founding affidavit Mr Hlaele, who is ironically the premier’s son in law, declared that it was unconstitutional for Dr Thabane to fire party members as the ABC constitution did not empower him to do so.
Mr Hlaele’s wife, Advocate Mabatṧoeneng Hlaele, Dr Thabane’s daughter, told the court yesterday his father’s utterances and actions were likely to cause bloodshed among party members.
“The confrontation between armed supporters of both factions (the old and new NECs) on 18 June 2019 at the party’s offices nearly resulted in bloodshed but was fortunately halted by the police.
“The continued utterances and actions of the leader are likely to result in bloodshed hence the applicants seek the court’s intervention as he will continue if he is not interdicted. Had he not interfered with the business of the NEC and not fired the applicants, there would be peace within the ABC.
“We ask the court to issue a court order which will block him from instructing his followers to break the law. We ask that he be reined in by the court so that he knows there will be consequences for contempt of court should he continue to be the source of unlawful acts.”
The applicants had submitted that the matter be heard urgently to avoid the possibility of bloodshed arising from Dr Thabane’s “continued lawless actions”. They sought an interim interdict pending the finalisation of their application.
However, Justice Mokhesi said that the court could not micro manage the party saying the “court cannot order litigants to have peace and police it”.
“If we were to give such an order, we would be guilty of micro-managing the party. The court does not police the law but administers justice,” Justice Mokhesi said.
One of Dr Thabane’s lawyers, Advocate Rethabile Setlojoane, had argued that the application was not urgent and insisted that it be treated as a normal application.
A consensus was eventually reached by both parties to have the matter heard on 22 July 2019.
“As the presiding judge is not here (Justice Nomngcongo) today but hopefully he will be well soon, the matter is provisionally postponed to 22 July for hearing.
“Heads of argument should be filed before that date and parties will be given the opportunity to file supplementary heads post that date if need be,” Justice Sakoane said.