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ABC case frustrates judges

Lerato Matheka

The remitted court battle of Habofanoe Lehana had tempers flaring at the High Court this week.

The case is being heard by Justices Thamsanqa Nomngcongo, Moroke Mokhesi and Sakoane Sakoane

Judges appeared irate that Advocate Rapapa Sepiriti had not filed a Notice of return following his withdrawal from the representing lawyer to Lehana.

Sepiriti who is representing the applicants, Habofanoe Lehana , Keketso Sello and Mohapi Mohapinyane in a case where they are challenging the ABC elective conference held on February 1 and 2 at Lehakoe in Maseru.

The judges were ruled that Sepiriti was not present in court to make it known, on record that he has retaken the case which he withdrew from on Tuesday.

Justice Sakoane stressed the need for professionalism requesting that all parties play within the bounds of the rules.

“We need to play from within the bounds of the rules. Mr Sepiriti is not here to make known on the record that he has retaken this case. We are not expecting him to turn around and withdraw when it is time for the case to be heard,” the judge said.

Sakoane requested to know if the applicants were present in court, but they were not.

“They are not presented then in this court thus they are not represented,” he said.

An advocate D Makhalanyane appeared for Sepiriti and forced advocate Kuili Ndebele to rise on point concern saying there was no reason Makhalanyane was being given audience by the court.

“The problem is that there is no notice filed to put this on record, nor is the court aware of who the advocate is representing when he is appearing before court. Clearly no instructions have been given.”

The lawyer stressed that the applicants’ lawyers knew that the case was proceeding, but they decided not to appear before court and have failed to file the notice.

In addition, Advocate ‘Mabatšoeneng Hlaele noted that the matter was brought before court as an urgent matter thus it should be treated as such by the people who brought the matter.

She lashed that the applicants have bridged the rules of the court.

“We want to put in on record that the applicants cannot have their cake and eat it. With their actions, it is clear they have disregarded this court and its rules. I should also make it known that his Lordship Mokhesi yesterday when interrogating the applicants made known that this matter needed to be heard today, and we on the part of the respondents are ready for the matter to be heard.”

She added, “I am also putting it on record that we on the respondents’ side, have respected all rules of the house.”

Justice Nomngcongo shared Hlaele’s concerns noting they were valid.

“…but none of the applicants are here. This will be addressed in due course. But despite your readiness, it is prudent to note that my brother Sakoane and I were assigned to this case yesterday and looking at the files, a postponement is inevitable anyway because we have to go back and learn the filings,” the judge said.

He added that they have a problem with regards to their expectation given orders were issued by the ACJ Mahase.

“We have another problem here with regards to the order of the Appeal Court by the ‘concerted’ order to remit the matter to the High Court to be rolled before a different judge. The Appeal Court Order is as brief as that and it doesn’t decent to the information. We are at a loss of what had happened and we don’t know what you parties at the appeal were concerted to.

“It would have seemed that the ACJ Mahase had advanced with a number of orders being made, and some judgements, one regarding the affidavit of a Mr Hlaele granted and signed by ACJ Mahase. But this order isn’t saying anything on the orders issued and signed by ACJ Mahase, thus it makes it difficult to deal with this matter. We want you to tell us what you concerted to and what you were saying about the judgement awarded regarding the evidence,” Nomngcongo inquired, adding, “Are we expected to start from a clean slate as if this were fresh matter?”

“Lastly there is an interim court order, what are we supposed to do? Judge Sakoana added.

Hlaele rose in respond, explaining the matter went to the Appeal Court while still at a stage of determining who should start with their arguments in the proceedings, but cited that had always been postponed.

“The matter was still before court, and yes I do appreciate that the order doesn’t set aside any proceedings because there were not proceedings. We had not touched on the point of merits. We went to appeal because we thought the findings were erroneous. The ACJ on May 6 paragraph 14 noted that Hlaele’s affidavit should be expunged and that is what we took to the appeal because Hlaele had not been heard when her Lordship ACJ Mahase made her ruling.”

“The matter to have been judged on was who should begin. The judgement was not in relation with what was argued before,” she said adding that the filing date of the affidavit of Hlaele shouldn’t have been ruled on and all parties concerted on that matter hence the matter remitted back to the high court.

Judge Sakoane however asked in the absence of the judgement and finding, “What should we make of the order? The concerted order is mum about reasons. We are in the dark about how the order was concealed by concern. None of you have said you abandoned all orders.”

Hlaele noted made it known that all judgements of the Appeal Court are scheduled to be issued today, however stressed that she wasn’t making any submissions.

Another issued that seemed to have bothered Judges Sakoane and Nomngcongo, despite the introductions that the ABC case has two different lawyers representing the party and the National Executive Committees, was who needed to be heard for the ABC and the NEC.

Advocate Khotso Nthontho said he was appearing for the February elected NEC and the ABC while Advocate Rethabile Setlojane appeared for the ‘old’ NEC and the ABC.

“This is confusing. It is seen that the ABC is represented by two conflicting counsels, and that needs to be resolved, and perhaps maybe those orders (signed by the ACJ) have resolved it and thus we will be working in line with those orders,” Judge Nomngcongo said.

“We order that since the court orders have not been repealed, we will proceed with them on record and the matter will be heard next Tuesday June 4. We have noticed that the respondents have filed their heads of arguments, we advise the applicants to shake their feet,” the judge said.

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