The beleaguered Acting Chief Justice ‘Maseforo Mahase finds herself trapped in a death spiral, tearing her integrity apart as she apparently tries to help sore losers in the ABC block Professor Nqosa Mahao’s ascension to the position of deputy leader of that party. She is marching towards extinction, the only question is whether she manages to take ABC down with her. The Appeal Court on Wednesday stated that it cannot be an exaggeration to say that ABC is riven by political factionalism.
By Staff Writers
The “expelled” five members of the ruling All Basotho Convention’s National Executive Committee (NEC) have won an interdict preventing “biased” Acting Chief Justice ‘Maseforo Mahase from presiding over a case in which they challenge their expulsion from ABC by the party leader Thomas Thabane.
This Appeal Court ruling is a blow for Mahase, whose conduct was found wanting. Her impartiality and understanding of her role and responsibilities as judge of the High Court was found lacking in her chairing of cases involving ABC.
Her interim court order interdicting Professor Nqosa Mahao, Sam Rapapa, Lebohang Hlaele, Montoeli Masoetsa and ‘Matebatso Doti from holding themselves as members of the ABC was also declared “wrong and incompetent”.
“I cannot go so far as to say that she may have issued the interim order to show favour to the faction that stands against the appellants, but in these circumstances, her decision tends to bolster the perception of bias entertained by the appellants,” said Acting Justice of Appeal NT Mtshiya, in a judgement that probably adds ammunition for those calling for Mahase to be removed.
When Prime Minister Thabane’s unceremoniously suspended Chief Justice Nthomeng Majara last year and replaced her with Mahase, opposition parties came out with all guns blazing accusing Thabane of being determined and forthright about destroying institutions that are strong enough to thwart his shenanigans.
But government hit back saying it was giving obligatory succour to the judiciary to enable it to protect its independence, dignity and effectiveness following exit from power of Pakalitha Mosisili’s administration which saw the rise of public outcry about moral decay within the ranks of the judiciary.
Upon learning of Majara’s suspension, her lawyer Qalehang Letsika wrote to Thabane advising him of the illegality of the process that resulted in the suspension of Majara.
Letsika also indicated that he would advise Majara, who was out of the country then, to ignore the “illegality”.
The Attorney General (AG) Haae Phoofolo (KC) then moved swiftly to seek an order that, among other things, prohibited Majara from accessing her office at the high court.
The order was granted by Mahase, without giving reasons. And the chickens are coming home to roost.
In a scathing judgement on Wednesday, the Appeal Court indicated that in other jurisdictions, the failure by a judge to give reasons for judgement, especially where that becomes a pattern of how the judge concerned operates, leads to disciplinary action against such a judge.
“The judiciary in this country should take a leaf from other jurisdiction on this salutary practice. The time has surely arrived to impose disciplinary sanctions on errant judicial officers who refuse or neglect to give written reasons for the decisions they make, especially in important matters that come before them,” the court said.
Mahase has previously been described by opposition parties as a protégé of Prime Minister Thabane put at the helm of high court to do a job on behalf of Thabane.
Her decisions in the court later attracted a hostile response a group of government cheerleaders who support Mahao. This group said Mahase was used by Thabane to block Mahao’s ascension to the position of deputy leader of ABC.
Mahao was elected ABC deputy leader against Thabane’s wishes at the party’s elective conference held in February. Rapapa and Hlaele were elected chairperson and secretary general respectively while Masoetsa was elected spokesperson and Doti deputy spokesperson.
Their election was challenged in the courts, the first of which was on February 13 2019, when a challenge was mounted in the High Court before Mahase on an urgent basis against the election alleging certain irregularities.
The application was postponed several times by Mahase but finally set it down for hearing on June 14 despite the urgency alleged at inception.
On June 12, the High Court confirmed the election of Mahao and his colleagues as members of the NEC.
This was after the Appeal Court removed the case from Mahase with a direction that it be heard by a different judge. She agreed to recuse herself albeit reluctantly.
On June 13, Thabane wrote letters to Mahao, Rapapa, Hlaele, Masoetsa and Doti calling upon them to show cause, within three days, why they should not be expelled from the party for alleged insubordination.
The five members, in their capacity as New NEC members, met on June 14 and resolved not to ratify the action of Thabane but on June 17, he expelled them nonetheless.
They lodged their application in the High Court on June 24 challenging their expulsion but two High Court Justices Sakoane and Mokhesi refused to grant any interim relief and gave directions for the matter to be heard on July 22.
On June 26, members of the NEC remaining in office after expulsion of the five met as ABC NEC and ratified Thabane’s action of the expelling Mahao and Co.
The NEC also applied to the High Court for interdictory relief and this case found its way to Mahase and she granted the relief that the purportedly expelled five members should not hold themselves as members of the ABC NEC or hold political rallies in the name of the party.
This is the case from which the appeal arose.
The contention of Mahao’s appeal for recusal against Mahase was that in light of her conduct in related matters in the ABC, she had shown bias in favour of Thabane’s faction and created a reasonable suspicion that she could not be impartial.
“The appeal against the refusal of the learned Acting Chief Justice to recuse herself is allowed,” Appeal Court ruled and directed that the case in which Mahao and his colleagues are challenging their expulsion be placed before another judge or judges of the High Court for determination.
Wednesday’s court ruling is a significant victory for Mahao, Rapapa, Hlaele, Masoetsa and Doti.
The Appeal Court stated that it cannot be an exaggeration to say that ABC is riven by political factionalism.
The factional political contestation, which started at the beginning of this year, has been over which faction is the dominant one. On faction, it seems, is aligned to and has support of the Prime Minister Thomas Thabane, who is the leader of the party. The other faction is aligned to and supports Professor Nqosa Mahao who is the deputy leader of the party. NW