The Constitutional Court (ConCourt) has, for the second time, dismissed with costs, former Independent Electoral Commission (IEC) chairperson Mahapela Lehohla's bid to stay in office pending the finalisation of a highly contested process to appoint his successor.
Acting Chief Justice 'Maseforo Mahase, Justices Lebohang Molete and Keketso Moahloli this week dismissed Justice Lehohla's application to stay the court's 16 October 2019 ruling that dismissed his application to remain at IEC.
Lehohla had wanted a stay of that ruling pending an appeal he has lodged against it at the Court of Appeal. That court would only have had the case at its earliest next sitting in April 2020.
Justice Lehohla had made his latest application under the IEC banner. However, the three judges did not only dismiss his application, they further ordered him to personally pay legal costs of the 66 respondents cited notwithstanding his attempt to try and cloth his application with the electoral body's name.
He had wanted to remain in office because of a July 2019 Constitutional Court application by the Transformation Resource Center (TRC) and two others for the nullification of the appointment of Workplace Solutions as the human resources consultant in the recruitment of new IEC commissioners.
TRC's co-applicants are IEC hopeful, Maieane Khaketla, and the African Ark (one of the political parties involved in the processes to recruit and appoint new commissioners).
The TRC wants the court to order the recruitment exercise of the new commissioners to be re-done with the active participation of civic groups through a public interviewing process. TRC also wants a final order for the nullification of the appointment of Workplace Solutions in the whole exercise. The civic group contends that Workplace Solutions was awarded the tender without following proper bidding processes in contravention of the Public Procurement Regulations of 2007. It has even been alleged that the firm did not have a tax clearance certificate to qualify for bidding.
While all these court processes are being fought, Justice Lehohla wants to remain in office alongside fellow commissioners 'Mamosebi Pholo and Makase Nyaphisi's. Their contracts expired in January 2019 and the government refused to renew them.
Their application to remain in office was originally dismissed on 16 October 2019 because it had no constitutional basis.
In their latest judgement, Justices Mahase, Molete and Moahloli again dismisses the Justice Lehohla's bid to cling to office for a number of reasons including that it lacked merit, was frivolous and unsustainable in terms of the law and rules of court. The judges then slapped the former IEC chairman with a punitive costs order that should see him pay the legal costs of all the 66 respondents cited.
The court noted it was not easy to establish "with any degree of certainty" whether the other two former commissioners (Adv Pholo and Dr Nyapisi) had agreed to be involved in Justice Lehohla's application as no such evidence had been furnished.
"In the circumstances of this case, it is appropriate to award costs against the unsuccessful party because not only is the application frivolous and unsustainable, it is also totally lacking in merit. The costs cannot be awarded against IEC but must be awarded against Justice Lehohla and be paid by the judge personally. The application is dismissed."
The 66 respondents whose legal fees have to be paid include TRC, Rev Khaketla, African Ark, Council of State, His Majesty and the Directorate of Corruption and Economic Offences.
The IEC is currently operating without commissioners and the delay in appointing new commissioners has plunged the country's electoral management system into serious jeopardy at a time when fresh elections appear inevitable in light of the infighting in the All Basotho Convention (ABC) and the vote of no confidence contemplated against Prime Minister Thomas Thabane.