Appeal Court judges warn, advise SR party


. . . as party pushes for gender parity in parly


MASERU – Court of Appeal judges yesterday warned the Socialist Revolutionaries (SR) the party that a favourable outcome would not result in the disqualification of Chabaseile Mabusela, who was appointed under the Movement for Economic Change (MEC) banner. This clarification during yesterday’s appeal hearing stems from the fact that the Speaker of the National Assembly (NA), Tlohelang Sekhamane, acted within lawful bounds when he administered the oath to swear in Mabusela as a Member of Parliament (MP) on October 25, 2023.

Instead, the judges suggested that an alternative approach, possibly entailing a review of the Speaker’s decision, would be the most suitable course of action. Mabusela assumed office following the resignation of SR’s former deputy leader, ’Mamarame Matela, on October 20, 2023. Matela stepped down amidst a motion of no confidence against Prime Minister Ntsokoane Mtekane and was rumored to have reached an agreement with the ruling RFP to vacate a seat for an MEC MP who would lend support to the government.

SR unsuccessfully petitioned the court to block Mabusela’s appointment, as High Court Justice Molefi Makara declined jurisdiction over the matter. The judge ruled that the complainants were not properly before him but ought to have first petitioned the Electoral Commission within the prescribed election timetable.

“It is mandatory for the aggrieved party to first note their objection with the commission within the prescribed election timetable period. Then, if such a party is not satisfied with the decision, they may approach the High Court as an appellate body.

“The High Court does not have original jurisdiction over the matter. It is therefore important to underscore that such objections are made in line with the election timetable. In the present application, such time has lapsed,” read Justice Makara’s judgement in part. During the appeal hearing yesterday, the judges hearing the case made it clear that they do not agree with Justice Makara’s rulings that he does not have jurisdiction and that the complainant ought to have petitioned the Electoral Commission.

However, the three panel judges warn that even if they rule on behalf of SR, the success of their appeal will not result in the disqualification of Mabusela, but a fresh application with a different course of action before a different court challenging the Speaker’s decision may be appropriate. “I am not your attorney, nor am I advising you, but you may need to seek a review of the Speaker’s decision,” Justice Johann van der Westhuizen said.

Judge Moses Chinhengo remarked: “So there was an interdict preventing the Speaker from swearing in the next MP, but later jurisdiction was refused; was the issuance of the interim order not an admission that the court had jurisdiction?” Justice Chinhengo added: “If someone has already been sworn in, why is or was that decision not reviewed?”

The judges insist that Justice Makara’s finding that SR ought to have approached the election commission cannot be correct because the commission can only get involved before the election not after the election when results have been established. Advocate Fusi Sehapi of the appellants said the effect of Justice Makara’s judgment is that his clients are unable to approach the electoral commission and the High Court as the judge declined jurisdiction and stated that the election timetable has since lapsed for SR to petition the commission.

In response to Justice Chinhengo’s question as to the position of the law in regard to a vacancy that occurs under Proportional Representative, Sehapi said the Speaker is empowered to appoint the next person on the PR list, as Sekhamane has done, but that it should be done in line with the zebra model, considering the gender of the person being appointed.

In their court papers, Chairperson of the SR’s National Executive Committee (NEC),’Mapali Molula, said the appointment of Chabaseile Mabusela as SR MP instead of her discriminates against her on the basis of gender or sex and is in violation of a zebra model. Molula claims that the position was supposed to be assumed by her as a female.

“The installation of a male, namely, the 2nd Respondent, in place of a female violates and discriminates against female gender and violates equal representation of men, and women in parliament contemplated by the Zebra Model.” According to Molula, there is a zebra model that underpins gender parity inside Parliament, and it is unconstitutional to act against it.

She argues that the Speaker of the National Assembly acted against the model when he swore in Mabusela as an MP. “The SR already has a male in Parliament, namely Honourable Teboho Mojapela, who represents the male gender; the female gender has resigned, namely ’Mamarame Matela; she must be replaced by the third respondent, who is a female, since Matela’s resignation created the gender gap and disparity in Parliament.”

Justice Chinhengo further asked: “So much so that if we agree that Makara J was wrong and remit the matter back to the High Court, will he be called to determine the zebra model?” The Speaker of the National Assembly and the Attorney General have not filed papers opposing the case and have said they will abide by the court’s decision. For his part, Advocate Letuka Molati, on behalf of Mabusela and his party, MEC, said SR’s appeal should be dismissed on the grounds that they appealed the reasoning but not the order.

Molati also said that while the High Court erred in saying the complainants must have petitioned the electoral commission first, their petition must have been instituted before the court of disputed returns. The submission prompted Justice Westhuizen to ask: “What provision mandates them to approach the court of disputed returns?”

The judge inquired about that court and its establishment, asking what would prevent the ordinary high court from determining the case if judges were so minded to remit it back to the high court. “Does the court of disputed returns exist? How do the judges who sit there know their job? I just want to understand because, speaking for myself, I have nothing about that court before me.” The judgement has been reserved for May 2, 2023.

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