As appeal court turns Koro-Koro to lower court
The Court of Appeal today gave the All Basotho Convention (ABC) Koro-Koro constituency a second chance to fight for inclusion of Professor Nqosa Mahao’s name in the party ballot.
Koro-Koro constituency is backing the nomination of Mahao for party deputy leadership position in the election race set for February 1-2.
The legal battle started after decision made by the ABC leadership was taken by the unyielding Koro-Koro constituency to the High Court which in turn dismissed their petition resulting in the appeal which was today decided by Acting Justices of Appeal P. Musonda, P.T Damaseb and M. Chinhengo.
In their judgement Damaseb and Musonda agreed and gave an order that: “The matter is remitted to the high court exercising its ordinary jurisdiction, to be heard and determined by Mahase ACJ (and in the event she is not available) by any other available judge of the High Court.
“The matter shall be called before Mahase ACJ or judge designated for that purpose by her, to preside in the matter no later than 14h00 p.m. on Tuesday 29 January 2019 and for the matter to be dealt with according to law”.
The Koro-Koro constituency committee members, Phohleli Phohleli and Morake Keketsi are cited as the first to third appellants respectively.
While the respondents cited as Executive Working Committee of ABC, ABC National Executive Committee, ABC, Professor Mahao, Prince Maliehe, Motlohi Maliehe and Dr Moeketsi Majoro from the first to the seventh respondents.
Mahao’s nomination to contest in the ABC’s highly contested elective conference was nullified over claims by the party Executive Working Committee that he does not meet the requisite constitutional requirement to contest for the position to deputise Prime Minister Thomas Thabane in the party.
The Executive Working Committee’s decision was then endorsed by the National Executive Committee earlier this month thereby sealing the fate of Mahao’s bid to assume the position of Deputy Leader in the ABC.
But the relentless Koro-Koro constituency committee which also found itself suspended by the party outgoing leadership ahead of the elective conference petitioned the high court in an urgent application, but which Acting Chief Justice Maseforo Mahase dismissed.
Also as part of the battle to enter the fray for party leadership, Mahao had filed a counter application in an attempt to persuade the High Court to understand his rights have been infringed upon by the ABC leadership when it dismissed his nomination, however it was the first to be not only dismissed but also struck off the roll by Justice Mahase.
Part of the judgement by their justices Damaseb and Musonda on Mahao’s quest for appeal reads:
“The first preliminary issue that we were called upon to resolve was whether to allow the appellants to argue the merits of the case in view of the urgency of the matter.
“The urgency arising from the fact of the impending elective National Conference scheduled for 1-2 February 2019.
“The appellants too the view that their arguing the merits occasioned no prejudice to the respondents and that this court had in the past considered the merits of the matter in the interest of justice although the court below had not and confined itself to the preliminary legal objections”.
Justices Damaseb and Musonda further point in their judgment that Advocate Thoahlane representing the ABC as respondents’ objected in the strongest terms to such a course on two grounds.
“The first being the common cause fact that the High Court did not deal with the merits at all and the second being the fact that the grounds of appeal do not address the merits at all.
“Mr Thoahlane argued that the course proposed by the appellants would prejudice them because, based on the case the grounds of appeal asked them to meet on appeal, he did not address the merits in their heads and did not come prepared to argue the merits.
“That is, of course, not supported by the record.
“As I already pointed out, the appellants stated as a ground of Appeal that the court misdirected itself in not hearing the merits of a ‘single comprehensive application’.
“The clear implication is that if this court agreed, it had to determine the merits; it could not be otherwise,” said their justices Damaseb and Musonda.
Their Justices in judgement further pointed that the posture adopted by the respondents ‘counsel, with great drama “I must add, even threatening to withdraw from the appeal if the court entertained the appeal on the merits, and summoning the judges to chambers to be castigated by his instructing counsel Mr Mosotho for taking so-called unprecedented steps in hearing an appeal on the merits”, was potentially prejudicial to the respondents.
The justices said after oral argument, they considered the matter and decided not to entertain the merits for the reasons that they set out below.
“But had we chosen to entertain the merits it would per force have been without the benefit of legal argument on behalf of the respondents- much to the prejudice of the respondents.
“We view that conduct as most reprehensible and unbecoming of officers of this court whose duty it is to be helpful to the court and not to be obstructionist, however attractive a client might find that.
“Lawyers have the duty to act dispassionately and not to become a mouthpiece for clients.”
The Justices Damaseb and Musonda said It would be most desirable for the Apex court to determine the merits of a matter if, for example, there was the potential for monumental disputes of fact arising.
“The possibility of disputes of fact arising was foreseen by the appellants as I already demonstrated.
“A cursory glance at the replying affidavit shows that almost every factual averment made by the applicants is placed in dispute and such matters as the membership of the professor in the party is denied and alleged to have been obtained fraudulently.
“Absence of proof of the actual text of the constitution of ABC from which the court itself draws its own inferences through interpreting it, it would be most undesirable for this court to determine the merits of the matter.
“After all, interpretation of legal documents and instruments is a matter of law and not of fact and therefore evidence seeking to assign meaning to clauses in a document is not permissible.
“Since the court is to interpret the document in its entirety, its absence in the record renders any interpretation of the various provisions only referred to on affidavit very undesirable and unsafe.
“The constitution could be produced through discovery at the request of the parties or at the instance of the Court.
That can only be done in the High Court”.
The Justices Damaseb and Musonda further concluded that the proper course is to “remit the matter to the high court to determine the merits”.
“Altogether we had allowed the appellants to place on record that they wished the court to consider the merits if, after due consideration, it considered that course warranted, we have come to the conclusion that the present is not an appropriate case to do so,” said the justices Damaseb and Musonda.
Moreover they continue that it must be mentioned that part of the relief sought is halting of the elective conference pending the finalisation of the case.
“If the High Court, which has a discretion in the matter, feels that such an order is appropriate in the light of the progress or lack of it in the finalisation of the hearing, it could grant such relief if the circumstances justify it.
“This court cannot assume the role of the High Court.
“Upon remittal of the matter, the danger inherent in possible frustration of the Court proceedings to gain advantage in view of the impending elective national conference is not lost on this court.
“That danger cuts both ways.
“Those who want it to be halted might think it is an opportune moment to drag their feet to strengthen the case for the halting of the conference; while those who want the conference to proceed without the case being finalised might similarly drag their feet.
“The high Court should be alive to that danger both in its conduct of the hearing and in the exercise of its discretion relative to prayer 2 (g) of the notice of motion,” said the justices Damaseb and Musonda.