Acting Chief Justice ‘Maseforo Mahase has labelled Professor Nqosa Mahao “Boss” of the Court of Appeal President Justice Kananelo Mosito and indicated that she was shocked by Mosito’s decision to preside over matters involving Mahao “despite the notoriously well-known fact that you are compromised”.
In a damning letter to the Court of Appeal President on Monday, Mahase said Mosito, Professor Mahao, advocate Nkoya Thabane and advocate Matee are all employees at the National University of Lesotho (NUL), and that in fact, Mahao who is one of the litigants in the Korokoro and ABC matters respectively, “is your ‘Boss’ or your employer for want of a better word.
Mahao is the outgoing Vice Chancellor of NUL while Mosito is reportedly Dean of the Faculty of Law of the same university.
She asked Mosito if he did not feel “compromised or somewhat conflicted” in presiding over matters in which they (Mahao, Thabane and Matee) are all directly involved.
Titled: Concerns About the Non-Compliance with the Rules of the Court, Mahase’s letter also includes a stinking rebuke of the latest court of appeal judgments.
She started her letter by emphasizing that: “I am writing this letter in my official capacity as the Acting Chief Justice.”
She said she was “particularly concerned” about the practice of the Court of Appeal in the past two sessions (April and May 2019) to entertain appeals without leave of the High Court where such leave is necessary in terms of section 16 (b) of the Court of Appeal Act.
“The Court of Appeal is issuing orders which interfere with the administrative powers of the office of the Chief Justice contrary to section 12 of the High Court Act No. 5 of 1978.
“In the most recent appeal of the ABC v. Lehana and Others, the Court of Appeal has remitted the matter to the High Court and ordered further that the matter be heard by a different Judge.
“This, the Court of Appeal has ordered despite the fact this application is partly-heard before the High Court and also despite the fact that there is an interlocutory order issued. Furthermore, the matter has been allocated a date for further hearing or prosecution,” reads part of the letter.
She said the effect of the order to recuse her (the Acting Chief Justice) from the matter without the benefit of having had such a request placed before her by any of the parties; “is highly unprocedural and unheard of in this jurisdiction”.
“Further on”, she added, “the order of remittal (recusal) was granted despite the fact that it was never prayed for by any of the parties and therefore never a subject of appeal”.
The seemingly infuriated Acting Chief Justice said “all of the above” happened in circumstances where the High Court was never ever served with any notice(s) of appeal and the accompanying grounds of appeal.
“I wonder how, in the absence of service of the service of the notice of appeal as indicated above, the basis of the Court of Appeal in assuming jurisdiction over these appeals is? What actually is the foundational basis of this appeal to the Court of Appeal?
“My Lord as per the Court of Appeal roll of 2019, all judgments are due to be delivered on May 31 2019. It is therefore ironic that in the ABC matter, the matter was heard by five Lordships Judges of Appeal on May 24 2019 and judgment/order was delivered on that same day in the evening.”
Mahase said the other issue about which she was greatly concerned was the setting or issuing of the time frames which the Court of Appeal set out or imposes upon the High Court within which the High Court should have disposed of a matter remitted to it on Appeal.
“What then would be the consequences should the presiding Judge and for masons beyond one’s control, not complete that matter within the stipulated time by an order of the Court of Appeal,” she said.
She further queried: “Are we going to see the Court of Appeal issuing contempt of court proceedings against High Court Judges?
“Your Lordship, I am particularly shocked and greatly disturbed by the escalating instances where Rules of Court, including those of the Highest Court of the Land are being flaunted with impunity by some legal practitioners, and the Court of Appeal turns a blind eye to such impunity; much to the detriment and disrepute of the smooth running of the administration of Justice in this country.”