PROFESSOR Nqosa Mahao and his faction have won the long-drawn out battle for the control of the ruling All Basotho Convention (ABC). This after the High Court dismissed an application by three ABC legislators seeking to nullify the Mahao group's election into the party's national executive committee (NEC) at its February 2019 elective conference.
Prominent ABC legislators, Habofanoe Lehana (Khafung constituency), Keketso Sello (Hlotse) and Mohapi Mohapinyane (Rothe) had filed the application seeking the nullification of the election of Prof Mahao and others, claiming the polls were marred by gross irregularities including "massive vote rigging".
However, the High Court bench comprising of Justices Thamsanqa Nomngcongo (presiding judge), Moroke Mokhesi and Sakoane Sakoane yesterday dismissed the trio's application, ruling that the alleged vote rigging would not have changed the outcome of the elections.
The ABC, the ABC's new NEC, the Lesotho Council of Non-governmental Organisations (LCN), Prof Mahao and other elected candidates in the ABC polls had been cited as the first to 44th respondents in the lawsuit.
Delivering the judgement before a packed courtroom, Justice Sakoane said the trio's case "lacked merit" and the court could not have allowed the applicants to submit new evidence, not initially included in the papers they submitted to court.
"We are not satisfied with the submissions that the applicants have provided alleging that the irregularities affected the outcome of the elections," Justice Sakoane said.
"We decline to accept the oral evidence which the applicants presented to court yet it was not part of their founding papers. The application does not have merit and therefore should be dismissed. The persons who were announced by Lesotho Council of NGOs (the independent elections conductor) as the winners of the elections are declared as the NEC of the ABC. The interim interdict (barring the elected NEC from assuming office) is discharged. The applicants should pay the LCN the costs of the suit while the rest of the respondents should pay their own costs."
The court judgement was immediately welcomed by Prof Mahao who told the Lesotho Times the victory gave them the legitimacy they deserved as the authentic NEC of the ABC.
He was nevertheless magnanimous in victory saying the immediate and more important task was to engage the old NEC in talks to reconcile the feuding ABC factions.
"The court judgement gives us the legitimacy we have always known we deserve and we can start to operate as the official NEC as the court has transferred the instruments of power to us. We shall be able to interact with the rest of the world as the authentic NEC of the ABC because until now the instruments of power had been vested in the other (old NEC) group.
"Our next move is to reach out to our comrades on the other side to try to rebuild the unity of the party.
"Just this morning we met with the ABC's partners in government (the Basotho National Party and the Alliance of Democrats) and discussed the need for reconciliation in the ABC. We asked them to be mediators on that course. The indefinite closure of parliament has also provided us with an opportunity to sort out our internal affairs and hopefully in a week or thereafter, we will be able to sort our differences," Prof Mahao said.
His sentiments were echoed by the new party spokesperson, Montoeli Masoetsa, the only executive member who attended the court session.
"It was a five month battle but eventually the truth prevailed. However, we are not in a hurry to get into office. We will have to hold a meeting, probably on Friday, to map the way forward.
"We don't have a problem working with the old NEC but I think they will be ashamed to face us after all the insults they hurled at us while the case was still in court. The party office has to be moved from that complex (in the downtown Maseru) because ours is a big party which should not be in dingy surroundings among (hair) salons," Mr Masoetsa said.
At the court, the judgement was greeted with loud cheers by the Mahao supporters who celebrated under the eagle eyes of several police officers who had been deployed to the court to prevent any outbreak of violence.
Once outside the courtroom the Mahao supporters broke into song and dance. Chants of "Satane re mo Hlotse" (loosely translated to mean, 'we have triumphed over the devil') filled the air.
Overzealous supporters even marched from the court to the party's Metcash Building offices in the central business district with the aim of evicting the old NEC. They eventually gave up the attempt.
On his part, the outgoing spokesperson, Tefo Mapesela, said he had "always conceded defeat," adding that the outgoing secretary general (Mr Samonyane Ntsekele) should hand over the keys of the party offices to the new NEC.
He however, could not resist throwing a jab at Prof Mahao, saying the former National University of Lesotho (NUL) vice chancellor lacked the credentials to be deputy leader of the ABC.
"I have always accepted defeat but the problem I have always had is with Mahao as he does not qualify to be deputy leader. As for the boy (Mr Ntsekele) who has been refusing with the keys to the party office, he should just hand them over," Mr Mapesela said.
Mr Ntsekele's mobile phone rang unanswered when this publication contacted him for comment.
ABC leader and Prime Minister Thomas Thabane could not be reached for comment.
Prof Mahao was elected into the ABC's NEC against the wishes of Dr Thabane who said they were far more senior party members deserving the plum post to deputize him. He claimed Prof Mahao had only recently joined the ABC.
Among others who were elected into the new NEC are Dr Thabane's son-in-law, Lebohang Hlaele (secretary general), Samuel Rapapa (chairperson), Chalane Phori (deputy chairperson), Nkaku Kabi (deputy secretary general), Tlali Mohapi (treasurer), Likhapha Masupha (secretary) and 'Matebatso Doti (deputy spokesperson).
The victory of the Mahao faction brings to an end the long-drawn out court battle, first filed before Acting Chief Justice 'Maseforo Mahase on 11 February 2019.
The case was postponed several times with Justice Mahase claiming illness until a 24 May 2019 Court of Appeal order for it to be heard by any other High Court judge (s).
The apex court issued the order after the Mahao faction appealed Justice Mahase's judgement in a related case in which three ABC members, Motseki Lefera, 'Matumisang Ntiisa and Martha Makhohlisa successfully filed an ex parte (one sided) application for the nullification of the ABC's elective conference on the basis that the party's constitution does not provide for it.
The judgement sparked controversy especially as the trio did not cite the Mahao camp in their application. Justice Mahase granted the order despite her repeated failure to preside over the initial application brought before her by Messrs Lehana, Sello and Mohapinyane. Her entire conduct earned her sharp rebuke from the Court of Appeal.
When the Lehana and others' case finally got underway on 4 June 2019 before the different judges, the applicants' lawyer, Advocate Rapapa Sepiriti, endured a torrid time at the hands of Justices Nomngcongo, Mokhesi and Sakoane who poked holes into his clients' case.
After a barrage of probing questions from the judges, Adv Sepiriti eventually told the court that he would only be suing the LCN in their capacity as the organisation that ran the polls on behalf of the ABC and subsequently announced the new NEC line-up.
Adv Sepiriti excused the other 43 respondents after failing to convince the judges that they deserved to be cited in the matter.
Adv Sepiriti argued for the nullification of the elections, claiming they had been marred by vote rigging. He said there was a variance of 70 votes which could have affected the outcome of the polls. He also alleged that some delegates had voted twice and further accused Mr Hlaele of canvasing for votes during the elections. Mr Hlaele beat the then incumbent Mr Ntsekele to land the powerful post of secretary general.
However, the three judges were not satisfied with Adv Sepiriti's submissions, saying they lacked merit. They quizzed him on how the 70 votes' variance would have changed the fate of Messrs Lehana and Sello who were contestants for the deputy spokesperson and treasurer's posts and lost by wide margins.
The old NEC's lawyer, Advocate Rethabile Setlojoane, begged the court to order fresh elections, claiming those which ushered Prof Mahao and others were tainted by irregularities caused by last minute changes to the voting delegations of 30 of the ABC's constituencies.
The judges also queried Adv Setlojoane's submissions asking why they raised their objections to the voters' roll with Mr Ntsekele who was a contestant instead of the party's Dispute Resolutions Committee.
"Where was the Disputes Resolution Committee? What business did Mr Ntsekele have (entertaining the objections to the voters' roll) when he was a player (contestant) in the said election?" Justice Sakoane asked.
The new NEC's lawyer, Adv Khotso Nthontho, said Mr Ntsekele was no longer a member of the NEC at the time of the elections. He should thus not have entertained any objections pertaining to the elections. Adv Nthontho told the court his clients became the NEC as soon as the results were announced.
"The old NEC symbolically stepped down from the high table before the elections to allow the LCN to conduct elections freely and fairly. Mr Hlaele says in his affidavit that he served as the old NEC's deputy secretary general and they (old NEC) stepped down before the elections. The only people who had power during elections were the LCN and the credentials committee.
"When provisional results had already been announced, which I suspect was the time that Mr Ntsekele was now aware that he had lost the position of secretary general to Mr Hlaele, he (Mr Ntsekele) further wrote to LCN ordering them to stop the counting, trying to save his position. He could not be a player holding a whistle.
"The conference is the highest decision making body of the party and this means that my clients became the NEC the minute they were announced winners," argued Adv Nthontho.
On his part, the LCN's lawyer, Adv Patsa Mohapi, told the court that the LCN used a voters' roll given to them by the party's credentials committee. He also presented a letter of appointment to disprove Mr Setlojoane's submissions that the LCN had only been verbally appointed to conduct the elections on behalf of the ABC. Adv Mohapi also told the court that the old NEC only raised its objections when the results were being announced, suggesting that they only opposed the process when it became apparent that they had lost.
"The LCN conducted elections on 1 and 2 February and the next two days were dedicated to counting while on 5 February we announced the results. Objections were only raised on the results announcement day and those should have been directed to the ABC's Disputes Resolution Committee and not to us.
"Mr Ntsekele's letter ordering us to stop the elections was also written on 5 February. Besides that, he had no powers to direct us to stop elections. We submit that there were no irregularities and that this hopeless and helpless application must be dismissed with costs," Adv Mohapi said.
The judges had reserved judgement after lawyers completed their submissions on 6 June 2019. They announced their verdict yesterday to the joy of Prof Mahao's faction.
While the court verdict settles the power struggle, it remains to be seen if the factions will close ranks and save the party from a split which would inevitably bring down the current coalition government. The Mahao group has already filed a no confidence motion against Dr Thabane in protest at being disallowed to assume office.