This matter in the High Court is between the ABC’s Koro-Koro Constituency and two others against the party, its National Executive Committee (NEC) and five others including Professor Nqosa Mahao. The Koro-Koro committee filed papers after it was suspended by the NEC and its preferred candidate for the position of deputy leader, Mahao, was barred from contesting. The committee wants the High Court to set aside its suspension and restore its power over the running of the constituency women and youth committees as per the letter from the party’s secretary general.

It also wants the court to declare as null and void a clause in the party constitution which decrees that a member of ABC who institutes legal proceedings against the party without exhausting internal remedies forfeits membership on the ground that the provision violates the rights guaranteed under the constitution of the land. The constituency contends that the matter should not have been adjudicated before the elective conference set for February 1, urging the court to suspend the conference until the case has been finalised.

The NEC rejected Mahao’s nomination as a prospective candidate for leadership position and the executive working committee suspended Koro-Koro constituency committee without a hearing. The NEC also ruled that henceforth both its women and youth committee would be run under the auspices of the secretary general. However, The ABC respondents raised the objections to the application including that the appellants should not have approached court but should have taken their grievance to the annual general conference and that the challenge to the constitutional validity of the ABC constitution’s clause presuming forfeiture of membership of those taking the party to court was not competent in the high court exercising its ordinary jurisdiction and should have been brought in the constitutional court.

However, the request for postponement of the proceedings by the judge came after the lawyers seemed not to be in agreement to focus only on what was ordered by judgement of appeal court. The three foreign judges of court of appeal Acting Judges of Appeal Dr Phillip Musonda of Zambia, Petrus Damaseb of Namibia and Moses Chinhengo of Zimbabwe on their judgement on Monday, ordered the matter to be remitted to high court for determination of the merits. Advocate Ranale Thoahlane, who was appearing for respondents, addressed the high court on the question of introduction of absent proof of the actual text of the constitution of ABC. The issue of production of a document by applicant’s counsel purporting to be constitution of ABC is one of the directed by court of appeal to high court for determination.

In his argument Thoahlane referred court to rule 34(1) of the judgement of court of appeal. Although that rule was not directed by that court, Thoahlane said he used it because it is relevant. He said no rule can be read in vacuum as rules are intertwined, hence he had to start with this rule until he got to the directed rule. “When I make a point, I decide what to use,” Thoahlane said. Advocate Khotso Nthontho representing the applicants, stood up saying that court of appeal has directed them to rule 34(14). He then asked Thoahlane to focus on what is in judgement for the purpose of time. He even reminded Thoahlane that he promised to talk what he (Thoahlane) termed ‘house-keeping issues’. “But he goes on and on addressing the court,” Nthontho said.

The ongoing arguments let the judge to adjourn the proceedings. This week the secretary general of ABC Samonyane Ntsekele wrote a letter asking Mahao to give explanation why he could not be considered to have lost his membership in of the ABC. In his letter dated January 29, Ntsekele said in its sitting, the NEC discussed his action of instituting legal proceedings against the party and found that by so doing he had forfeited membership according section 5(B) of party constitution. He, therefore requested him to submit written reasons to the office of secretary general before 12 pm on January 31. The case has been revert to the high court after the appeal court established that Justice Mahase had looked only at the points of law, and that he conclusion to dismiss the application of Koro Koro Constituency Committee was wrong in law. 

According to the order of Court of Appeal, Justice Mahase made an order without reasons in the terms including that “the counter application of appellants is struck off for failure to file the notice of intention to oppose in the main application, the points of law are uphold and the application is dismissed with costs.” The three foreign acting judges of appeal court who wrote judgement in two disagreeing parts concluded that the high court dealt only with the points of law and made mistake in not hearing the merits of the case. Judge Moses Chinhengo in his dissenting judgement proposed not to remit the matter to high court as he would dismiss all points raised by the respondents on appeal while acting judges Phillip Damaseb and Petrus Musonda in agreement dismissed certain points of both appellants and respondents.

However, at the end an order was that the matter be remitted to high court. Attorney Khotso Nthontho represented Korokoko constituency had submitted in his head of arguments, that ABC has got a structure called Disciplinary Committee which deals with disciplinary issues, which has power to suspend and disband Korokoro’s constituency. Nthontho further argued that decisions made by ABC’s working committee which does not have power to do that should be null and void. On the other hand, Advocate Ranale Thoahlane representing ABC NEC objected the fact that clause 5e of ABC constitution should be null and void contrary to section 26 of Constitution of Lesotho. Thoahlane further argued that if appellant lawyers wanted to attack the constitutionality of clause 5e of ABC constitution, they should have gone to Constitutional Court. The ABC issued a circular on October 2018 calling for the nomination of prospective candidates for leadership positions to be contested at the elective conference scheduled for February 1 - 2.