BONGIWE ZIHLANGU and RELEBOHILE TSOAMOTSE
MASERU – Embattled ruling All Basotho Convention (ABC) deputy leader Professor Nqosa Mahao, whose election was nullified on Wednesday, has accused Acting Chief Justice (ACJ) ’Maseforo Mahase of bias and branded her judgment fraudulent, Public Eye can report today.
On Wednesday ACJ Mahase agreed with Motseki Lefela and two others that the elective conference at which Mahao was elected was a nullity at law because the ABC constitution did not provide for it.
The triumvirate’s case closely mirrors one instituted by the ABC’s Habofanoe Lehana, Mohapi Mohapinyane and Keketso Sello, in February which has been repeatedly postponed for one reason or another.
The conference elected Mahao deputy leader while party leader Thomas Thabane’s son-in-law Lebohang Hlaele was elected secretary-general.
Montoeli Masoetsa became public relations officer but they were all rejected by Thabane, with insiders saying the ABC leader was not comfortable working with Hlaele and Mahao.
In an interview with this paper yesterday, Mahao lashed out at the judge for issuing a “fraudulent and politically motivated” default judgment, without cross-checking whether interested parties in the matter had been served.
The outgoing National University of Lesotho (NUL) Vice-Chancellor said he had nothing to say about “a fraudulent judgment”.
According to Mahao, the fact that Justice Mahase had issued a “fraudulent” judgment when Lesotho was in a throes of a political and economic crisis meant that writers of history should include her on the list of people who had created chaos in Lesotho.
“What do you want me to say about a fraudulent judgment? It has been concocted. It is a conspiracy between unethical politicians, lawyers and a judge,” Mahao said.
Mahao blasted Mahase for putting the first case on ice only to issue a judgment on a newer but more or less similar case “without first confirming whether interested parties in the matter had been served”.
“It raises fundamental questions about this particular judge being a judge. This judge is sitting on a case and deliberately drags her feet instead of dealing with it,” Mahao said.
“But 24 hours later she rushes to make an ex-parte judgment knowing pretty well that there are interested parties in the matter who have not been served. It’s unethical and has never happened since Lesotho’s independence.”
Mahao’s woes began just weeks ahead of the ABC elective conference when Thabane called him a rag that did not deserve to become his deputy, with the party further moving to block him from contesting the elections.
He was only bailed out by an Court of Appeal judgment ordering that he be allowed to participate as a candidate.
Mahao added that it was tragic that Lesotho’s judiciary had sunk to its lowest level “since before independence” by becoming “stooges of a desperate politician in office”.
“As a country we have sunk to the lowest level since before independence, of being stooges of desperate politicians in office who have been rejected by their party as the majority no longer want them,” Mahao said.
“They have now resorted to Machiavellian methods of taking control by hook or crook, tainting the judiciary in the process.”
Mahao again lashed out at Mahase, urging writers of history not to omit her name from the list of people who have created chaos in Lesotho “at the time when this country has sunk politically, economically and otherwise”.
“They should not forget to mention her name because this country has been plunged into a crisis in her time,” Mahao said.
Mahao said he felt embarrassed, humiliated and deeply disappointed as a Mosotho, when a friend of his from Botswana “called me to ask what is going on”.
“Someone from Botswana called me yesterday to ask what’s going on. What could I say except to feel embarrassed? Once again as a nation we have been plunged into yet another crisis,” Mahao said.
While Mahao did not say what his game plan was, Attorney Khotso Nthontho told this publication that he was working on papers to appeal Justice Mahase’s judgment.
Nthontho said he had not been aware of the case which eventually nullified the ABC NEC elections.
This was also confirmed by the new NEC’s spokesperson Masoetsa who said their committee had resolved to fight the judgment.
He said they are going to act on the judgment even though they were never served with the papers.
“Our lawyers met today and they were preparing our papers, we agreed to appeal Justice Mahase’s judgment because it has basically nullified our election,” he said.
Advocate Thulo Hoeane told Public Eye yesterday that he served the old NEC with the papers because there is an interim court order that they should continue to hold office until the case brought by two cabinet ministers and a legislator have been finalised.
“I obtained a default judgment after filing the application on Monday and appearing before Justice Mahase on Wednesday. There was no objection from the old NEC which had been served with the papers,” he said.
Hoeane said as a result of the order, the other application which challenged elections outcome would fall away.
“Everything falls away because the February elections have been declared null and void,” he said.
Human rights group, Voice of the Voiceless (VOVA), has meanwhile threatened another protest against Justice Mahase if she fails to respond to their petition today (Friday).
President of the association, Phakiso Motaung, told Public Eye in an interview yesterday that they would picket at the Palace of Justice if judge Mahase does not respond to the concerns raised by concerned Basotho who petitioned her last Friday.
Motaung said this in the wake of Justice Mahase’s announcement she was seeking legal advice on the petition.
She labelled the letter an “insult” and said its authors had crossed the line.
Motaung also said it is within Justice Mahase’s right to sue if she intends to but that his association would continue to speak for Basotho.
“She can go ahead and sue. I don’t know how she is going to sue Basotho who petitioned her but it’s really up to her.”
Motaung said he signed the letter which informed ACJ some Basotho would march to the High Court, adding the letter which was delivered on Friday was from Basotho and so did not bear VOVA’s logo.
Justice Mahase announced in court on Wednesday that she had written to the Law Society and the Attorney General (AG), Haae Phoofolo over the matter.
“This letter runs short of insulting me. I don’t know who are the writers but they have belittled me so much; I cannot let people insult me like this,” she said.
“This is not how you address a judge. If anybody complains about the courts’ processes, he or she has to write to the registrar of the court not the judge. I have always thought that Basotho are educated,” she added.
Justice Mahase’s announcement was made in the courtroom where she had been scheduled to hear the initial ABC leadership case.
She said she was not in a position to hear the case under any circumstances. Apart from the fact that she had a terrible flue, Justice Mahase said the letter she was complaining about talks about the very same case she was about to hear.
Justice Mahase had instead decided to seek legal advice before proceeding with the matter.
She postponed the case to June 14, to which she extended the rule that the old ABC NEC would remain in control of the party.
Mahase said she was made to believe that people who were to petition her were complaining about the administration of justice at different courts but was shocked when the letter addressed to her talks specifically about the ABC case that was currently pending before her.
“Unfortunately what they have done is unlawful as per the Penal Code Act Sections 88 and 90.”
Section 88 of the Penal Code Act states that “a person who, within the premises in which judicial proceedings or an officially constituted public enquiry is being conducted within the precincts of the same, shows disrespect in speech or conduct to or with reference to such proceedings or any person before whom such proceedings are being conducted, commits an offence”.
Also, section 90 states that: “A person who makes or publishes any statement which he or she knows or has reasonable grounds to suspect is untrue and is calculated to bring any judicial officer or court into disrepute, commits an offence.”
AG Phoofolo said there has not been any communication between him and the ACJ in regards to the VOVA letter when contacted for comment by Public Eye.
Phoofolo also said he has not seen a copy of the letter.
“Unfortunately, I haven’t met with the ACJ nor have I had communication with her about the matter you mention, nor have I seen VOVA’s letter.”
In the letter, VOVA asked Justice Mahase to explain why some court cases, including the ABC case, were not being finalised.
“Please prove us wrong in our assumptions by finalising the ABC case before you as soon as you can.
“Prime Minister Thomas Thabane put you in charge of the judiciary out of pity but based on your performance so far, we ask the Prime Minister to look elsewhere. We also believe he is aware of how much you have let the public down,”
“What kind of person are you? When are you opening the Court of Appeal? We want to see the appeal court operating in the first week of May after false reports that parliament had not given you money. If you do not open the court, we will petition the government”
“We will not let the courts and the rulers oppress people in this manner. We want a response by Friday 10th or else we will take the next step.
“We believe that that this march will ensure that you make things right,” protesters said in their letter.
The petition was received by the Acting Registrar of the High Court and Appeal Court, Advocate Ponts`o Phafoli because Justice Mahase was not available.
Justice Mahase said she won’t remain silent when she is being insulted as the judge adding that the insults mean that the whole judiciary was being insulted.
Earlier on Wednesday, Justice Mahase delivered judgment which nullified ABC NEC elections February as per the application moved by Advocate Thulo Hoeane.
Hoeane was representing Motseki Lefera, ’Matumisang Ntiisa and Martha Makhochisa who had asked the court to declare ABC February NEC elections as null and void.
The trio argued in their papers that the holding of the elective conference was inconsistent with the ABC constitution which they said does not cater for the elective conference.
Justice Mahase delivered a default judgment after none of the cited parties opposed the application.
Justice Mahase subsequently declared the elections null and void and ordered ABC Executive Committee (Old NEC) to continue executing the functions of the NEC in line with the constitution of the party for a period not exceeding 12 months.
Justice Mahase also ordered the committee to make amendments to the constitution.
“The interim National Executive Committee (INEC) should make all the necessary preparations with the relevant structures of the All Basotho Convention party (ABC) to effect the requisite amendments to the Constitution of the ABC to make provision for the election of all members of the NEC which are not currently provided in the constitution of the ABC,” read part of her order.