This is according to Judges Thamsanqa Nomcqongo, Sakoane Sakoane and Moroke Mokhesi on Wednesday when dealing with the ABC case following last week Friday court order by the Court of Appeal that the court deals with the case. Addressing respondents Lawyers after hearing and learning that applicants and their Lawyers were not before court and have since filed a letter before court informing and asking the court to postpone the hearing of the case to Monday next week, Judge Sakoane Sakoane said although the court is ready to hear the case, it is however not sure where to start with the case as the Court of Appeal order does not say what should happen with the orders the Acting Chief Justice (ACJ) ‘Maseforo Mahase already made in the case.

Judge Nomcqongo echoed Judge Sakoane and explained that the order only states that the matter is remitted to the High Court for hearing by another Judge on or before May 28, 2019 and does not say anything concerning the orders already made by the court. Judge Sakoane also explained that the court cannot only rely on the Lawyer’s interpretation of the court order but needs to be in possession
of an order that is very clear on what has been decided and not what Lawyers think it has been ordered.

The two Judges also agreed that under the circumstances, this means that ACJ Mahase’s orders still stand especially if the Court of
Appeal did not deal with the merits of the main case. The court then adjourned for some minutes after which when it resumed with its business, Judge Nomcqongo explained the court has decided that the case be postponed to Tuesday next week (June 4) and that the court will only proceed on the basis of orders already made by the ACJ as the Court of Appeal did not say anything about them.

Judge Nomcqongo explained that the court is also aware that ABC is represented by two conflicting Lawyers and ordered that the Lawyers should sort themselves out as to who represents who. In the meantime, Judge Nomcqongo indicated that the court is
aware of rumour doing the rounds over social media concerning the Judges and this case and commented that such rumours are shameless and scandalous and cannot derail the court from doing its work. He further commented that the court will forever continue to
administer justice without prejudice, fear or favour to all persons alike.

In this case which the applicants are Habofanoe Lehana, Keketso Sello and Mohapi Mohapinyane, they are asking the court to ask the 44
respondents to show cause if any, why the first respondents being ABC shall not be interdicted from confirming its purported new national executive committee elected during its recent conference pending finalisation of this case. The applicants also want the party’s NEC to show cause, why it shall not be interdicted from handing over the properties of the party to the purported newly elected committee pending the final determination of this application. Applicants also want the respondents to show reasons why the purported newly elected members of the party’s NEC shall not be interdicted from assuming the administration of the party pending finalisation of this case.

They again want the same respondents to say why the NEC election results announced by the Lesotho Council of Non-Governmental
Organisation (LCN) shall not be declared null and void. The three applicants further want the party and its NEC to show cause why they cannot be ordered to prepare for and hold a fresh election within a period of three months of finalisation of this case. Alternative to the above two prayers, the applicants want the respondents to tell the court why it cannot direct that the complaints be directed to the dispute resolution committee in terms of the party’s constitution.

In her letter to Justice Mosito, ACJ Mahase explains that the apex court 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. She also explained that in the most recent appeal of the ABC vs 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 and further that this, the Court of Appeal has ordered despite the fact that this application is partly heard before the High Court and also despite the fact that there is an interlocutory order issued.

The ACJ indicates that the effect of this order to recuse her 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” and also that the order of remittal was granted despite the fact that it was never prayed for by any of the parties and therefore never a subject of appeal. ACJ Mahase also explains that all of the above happened in circumstances where the High Court was never ever served with any notice or notices of appeal and the accompanying grounds of appeal and therefore she wonders how, in the absence of service of the notice of appeal as indicated above, the basis of the Court of Appeal in assuming jurisdiction over these appeals is and what actually is the foundational basis of this appeal to the Court of Appeal.

She further states that as per the Court of Appeal roll of 2019, all judgements are due to be delivered on May 31, 2019 (Friday) and it is
therefore ironic that in the ABC matter, the matter was heard by five Judges of the Appeal on May 24, 2019 and judgment or order was delivered same day in the evening. She also reveals that she is greatly concerned in 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 reasons beyond one’s control, not complete that matter within stipulated time by an order of the Court of Appeal, are we going to see the Court of Appeal issuing contempt of court proceedings against High Court Judges?”...ACJ Mahase asks.

The ACJ further tells Dr. Mosito in his capacity as the President of the Court of Appeal that he is 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. In the ABC Korokoro matter, the ACJ tells Dr. Mosito that he presided over these matter despite the notoriously well-known fact that he is compromised in that he, Professor Nqosa Mahao, Advocate Nkoea Thabane and Advocate Matee are all employees at the National University of Lesotho and that in fact, Professor Mahao who is one of the litigants in the Korokoro and ABC matters respectively is Dr. Mosito’s boss or his employer for want of a better word.

The ACJ again states that she is sure Dr. Mosito and the Judges who presided with him over the recent ABC matter are aware of the
provisions of section 12 of the High Court Act no. 5 of 1978 which provides that “the Chief Justice shall regulate the distribution of business in the court, and all actions and proceedings before the court shall be heard and determined by a single Judge, unless the Chief Justice otherwise direct”. Put differently, ACJ Mahase indicates that it is the Chief Justice who has the ultimate authority for determining the distribution of the workload.

The Court of Appeal Assistant Registrar Advocate Mosito Rabotsoa confirmed that his office has received the letter. As the letter was being processed, a group of ‘Concerned Basotho Citizens’ held a press conference on Wednesday on what they called ‘unwelcome
conduct of the Appeal Court’. On behalf of the group, Advocate Thulo Hoeane said in the last two court of appeal sessions - April and May 2019 - they have regrettably witnessed a litany of procedural and substantive derogations from accepted norms that govern the administrative and judicial functions of the court. Meanwhile the case referred to the High Court shall be heard on Tuesday June 4.