Court dismisses application on Prof Mahao candidature

  • 14 January, 2019

By Nkoate Thamae

… But unsatisfied constituency members take appeal. A day after the high court in Maseru dismissed application by All Basotho Convention (ABC) Korokoro Constituency committee members where they challenged suspension by the party’s national executive committee and challenging the rejection of Professor Nqosa Mhao as candidate for the position of deputy leader, unsatisfied constituency members said they have lodged appeal.

A case was on Sunday January 13 dismissed by the Acting Chief Justice 'Maseforo Mahase.
Korokoro constituency committee’s trouble started after ABC NEC rejected its nominee Professor Nqosa Mahao to contest for deputy leader of ABC in the upcoming national executive committee elections to be held early February. The spokesperson for the disgruntled ABC Korokoro constituency Makalo Motsapi said earlier that they did all efforts to table their concerns before ABC NEC and they dismally hit the rock until they had no option but to seek for high court intervention.

In this case, the first heads of arguments, apart from main case, were about amicus curiae application where Advocate Letuka Molati wanted to be a friend of the court to provide additional information without taking side on both applicant and defense lawyers so that he could help the court make informed decision when delivering final verdict.

However, defense lawyers objected the application citing that Molati’s input was not necessary. As a result, the court dismissed amicus curiae application.

In the main case, the constituency's prayers among others were that the decision of the Executive Working Committee to suspend its committee indefinitely be reviewed, corrected and set aside.
The second prayer, was to vest and or bestow the responsibility of the constituency's Women's Committee and Youth Committee to the office of the Secretary General be reviewed, corrected and set aside.
They also wanted the decision of the to decline and or cancel the constituency's nomination of Prof Mahao for the position of Deputy Leader in the NEC elections, to be be reviewed, corrected and set aside as irregular.

Advocate Ranale Thoahlane representing ABC NEC, argued that the application involves a political party and Common Law does not allow political party’s constitution to be reviewed. “Only ABC NEC has rightful legal jurisdiction to either review or amend party constitution,” he said.

A political party constitution according to Adv Thoahlane is different from a public entity. “A public entity is characterized by administration action according to Common Law rule 51A which clearly stipulate that political party decisions can’t be reviewed as it does not perform administrative act.”

Thoahlane said Prof Mahao had no logo standi to challenge ABC NEC decisions whereas he failed to meet satisfactory party requirements to compete for ABC deputy leader position.

He said both applicant Korokoro’s Constituency Prof Mahao failed to exhaust local remedies to seek for tailor-made solutions within a party structures whenever there is conflict of interest, instead they ran to the court with premature case.

“Only ABC NEC has mandate to review its constitutional decisions and the court has no power to deal with constitutional challenge,” he submitted and urged the court to dismiss this case citing Legal No 194 of 2000 section 22 of Lesotho Constitution of 1993.

On the part of the applicants, Advocate Khotso Nthontho pointed out that anyone has democratic right to approach the court for review of any organizational constitution including that of political parties.

“ABC is a voluntary political party which is registered under Lesotho societies act therefore its NEC decisions are reviewable and the court has a right to intervene in its affairs,” argued Adv. Nthontho.

He argued that the ABC as a party is not above the law, citing a clause which states that any member who can take ABC to the court is presumed to have expelled herself or himself, should be declared null and void.

Adv Nthontho argued that ABC NEC acted ultra vires (beyond its power) by violating the rules of its constitution when barring Prof Mahao from competing for the position of deputy leader on ambiguous reasons.

When delivering judgment, Chief Justice Mahase indicated that court only considered the review of private entity point and the rest are upheld. She then dismissed the case without supporting points.

Commenting after the court ruling, Prof Nqosa Mahao said he was shocked that the court agreed it has power to deal with the case but at the same time dismissed it. He said the judge wrongly interpreted the law. He said he was also amazed that the judge would inform them about her supporting arguments at later stage after the court of appeal hearing session which might come to the end after ABC NEC elections.
In February, ABC is scheduled to elect its executive committee and in this race Motlohi Maliehe will be contesting against Prince Maliehe, Member of Parliament (MP) for Berea and Dr. Moeketsi Majoro, MP for Thetsane, for Deputy Leader seat while Mr. Tsoinyane Rapapa, Lehlohonolo Moramotse, Mpalipali Molefe, Kemiso Mosenene and Tefo Mapesela will be running for Chairperson and for Deputy Chairperson Tsoeu Molise, Chalane Phori, Senoamali Phakisi are going to be the competitors.
Sello Maphalla, Samonyane Ntsekele, Futho Hoohlo and Lebohang Hlaele will be running for Secretary General and on the deputy seat competitors will be the embattled Nyapane Kaya, Habofanoe Lehana, Mrs. Makeabetsoe Letseka, Nkaku Kabi, Makhetha Motsoari, Temeki Tsolo and Maoshoa Mpeoa.
On the treasurer position, the party members are eyeing Nto Moakhi, Keketso Sello, Likopo Mahase, Mokherane Tsasanyane, 'Matsepo Ramakoae, Tlali Mohapi and Pinki Manamolela.

Arnold Schwarzenegger

“Strength does not come from winning. Your struggles develop your strengths. When you go through hardships and decide not to surrender, that is strength.” – Arnold Schwarzenegger