The Court of Appeal has issued an interim interdict barring Prime Minister Thomas Thabane from suspending Court of Appeal president Kananelo Mosito pending the finalisation of the Law Society of Lesotho's Constitutional Court application on the same case.
The appeal court issued the interim order after the Law Society approached to stop Dr Thabane from acting against Justice Mosito until the Constitutional Court has ruled on its application to stop the premier from ever suspending the apex court boss on the basis the premier's 5 July 2019 "show cause" letter which he subsequently withdrew on 24 July.
Dr Thabane had written to Justice Mosito demanding that the latter "show cause" why he should not be why he should not be suspended and impeached for allegedly interfering with the administrative functions of Acting Chief Justice 'Maseforo Mahase.
This after Judge Mahase had written to Justice Mosito over differences that stem from ongoing litigation by the old and new ABC's national executive committee (NEC) factions that are vying for control of the ABC. Judge Mahase has apparently been ruling in favour of a faction of the ABC supported by Dr Thabane but her judgments have been overturned on appeal. Critics accuse her of being desperate to be confirmed in her position by appeasing the premier.
Dr Thabane eventually agreed last week to abandon his plans to suspend and impeach the top judge in an out of court settlement with the Professor Nqosa Mahao-led faction of the ABC. The Mahao faction had initially approached the apex court seeking an order barring Dr Thabane from suspending Justice Mosito.
Despite the endorsement of the out of court settlement by Court of Appeal judges, Petrus Damaseb (presiding judge), Moses Chinhengo and Tafuma Mtshiya, the Law Society pursued its own application or interim order interdicting Dr Thabane from suspending Justice Mosito.
And yesterday, the apex court granted the Law Society's application. The judgement was prepared by Justice Mtshiya and read out by Justice Semapo Peete.
"It is ordered that pending the hearing of the constitutional case (against Dr Thabane and others), the first respondent (Dr Thabane) is interdicted from advising or recommending to His Majesty the King (Letsie III), the suspension of the president of the Court of Appeal, Dr Kananelo Mosito, pursuant to the first respondent's letter dated 5 July 2019," Justice Peete said yesterday.
Addressing the apex court on 26 July 2019, the Law Society's lawyer, Advocate Monaheng Rasekoai, said despite the out of court settlement with the Mahao camp, there was nothing blocking Dr Thabane from writing Justice Mosito another letter based on similar contents therefore he (Dr Thabane) should be interdicted to ensure he does not do it in future.
However, the defendants' lawyer, Advocate Ranale Thoahlane, argued that the withdrawal of the "show cause" letter rendered the Law Society' s application irrelevant as there was no longer any suspension being challenged.
"The suspension is no longer alive but academic because the ("show cause") letter has been withdrawn and that was done through a court order which is binding. All issues that are being challenged through this application collapsed when the letter was withdrawn.
"The tribunal or inquiry into the suspension cannot be held without the letter therefore there will be no basis for an investigation of the Court of Appeal president. Withdrawing the letter automatically withdraws its contents," Adv Thoahlane told the apex court.
While delivering the judgement yesterday, Justice Peete said the defendants' argument lacked merit and was therefore dismissed.
"The respondents seem to be clutching at straws by throwing poorly formulated defences without any real consideration of the facts and this was indeed shown in their heads of arguments which were poorly drafted and hardly formulated a cohesive argument.
"The host of points of law raised by the respondents all fall away for lack of merit and are thus dismissed accordingly," Justice Peete said on behalf of Justice Mtshiya.