Moorosi Tsiane
THE leadership battle at the National University of Lesotho (NUL) has taken a fresh turn, with the university Council seeking to overturn a decision that reinstated Labour Court Deputy President, Motlatsi Monoko, to continue presiding over a case involving suspended NUL Pro-Vice Chancellor, Professor Kananelo Mosito.
The latest court fight unfolds against the backdrop of a separate legal battle that could determine who leads the university after the expiry of Vice Chancellor, Prof Olusola Isaac Fajana’s term on 31 July 2026.
A fortnight ago, Acting Court of Appeal Judge, Phillip Musonda, ordered the immediate suspension of the recruitment process aimed at appointing Prof Fajana’s successor.
The ruling effectively preserves the possibility of Prof Mosito assuming office as acting Vice Chancellor once Prof Fajana’s term ends — a development that would require the Council to reverse the suspension it imposed on him on 22 April 2026.
Although Justice Musonda’s order was granted as an interim interdict, it dealt a major setback to the Council by freezing all proceedings in the substantive matter and directing that the Council’s appeals be heard during the Court of Appeal’s next ordinary session in October 2026.
That case originates from proceedings before the High Court in which Prof Mosito is challenging the Council’s decision to initiate recruitment for a new Vice Chancellor before the office becomes vacant.
Prof Mosito argues that Section 16 of the National University of Lesotho Act only permits the establishment of a joint Council and Senate selection committee once a vacancy in the office of Vice Chancellor has actually arisen.
Seeking to halt the recruitment exercise, he approached the High Court on an urgent basis.
The Council initially attempted to have the matter dismissed, arguing that the High Court lacked jurisdiction because the dispute amounted to a labour matter.
However, Justice Molefi Makara rejected that argument.
Following that setback, the Council launched an interlocutory application seeking the recusal of all High Court judges from hearing the matter.
The Council argued that Prof Mosito’s position as President of the Court of Appeal could create a perception of bias and undermine public confidence in the administration of justice.
Representing the Council, Advocate Mamello Makau submitted that even in the absence of evidence of actual bias, the circumstances justified recusal.
Justice Makara dismissed the application, prompting the Council to appeal and seek an expedited hearing before the Court of Appeal.
Justice Musonda, however, rejected the urgency application and ordered that the appeals be heard during the court’s next ordinary session in October.
Against that background, Prof Mosito separately launched an urgent Labour Court challenge against his suspension by the Council and Prof Fajana.
It is this suspension case that has now sparked fresh controversy.
The matter had initially been allocated to Mr Monoko, who heard arguments on a preliminary issue concerning urgency before later disclosing that he had a close personal relationship with Prof Mosito.
According to court papers filed by Council chairperson Dr Khabele Matlosa, Mr Monoko formally recused himself after determining that the relationship created a potential conflict of interest.
“The second respondent (Monoko) disclosed that he had a close personal relationship with the applicant (Mosito) and on that basis formally recused himself from the proceedings,” Dr Matlosa states in his founding affidavit.
However, the Council alleges that the position later changed following consultations involving legal representatives and Labour Court leadership concerning the extent of proceedings already completed.
The university claims Labour Court President, Teboho Thoso, subsequently directed that Mr Monoko resume handling the matter because he had already heard argument on the preliminary issue of urgency.
Mr Monoko thereafter invited the parties back and set the matter down for ruling.
“The first respondent (Thoso) directed that the matter be returned to the second respondent on the basis that he had already heard the preliminary objection and should therefore continue with the matter,” Dr Matlosa states.
The Council argues that such intervention raises serious constitutional and administrative concerns.
“The decision raises fundamental constitutional and administrative law concerns touching on judicial independence directly linked to impartiality and fair trial rights, procedural fairness, legality and public confidence in the administration of justice.”
Dr Matlosa argues that a judicial recusal cannot be reversed through administrative instruction.
“A judicial recusal is not an administrative arrangement capable of reversal through managerial instruction.”
He further contends that Mr Thoso acted outside his legal powers.
“There is no provision in the Labour Act, the Labour Court Rules or any other law authorising the President of the Labour Court to overturn a recusal decision or any judicial decision made by a judicial officer.”
The Council further relies on the legal principle of functus officio, arguing that once Mr Monoko recused himself, his authority over the matter ended.
“Once the second respondent determined that his relationship with the applicant required his recusal, a judicial determination had effectively been rendered concerning his competence to continue sitting in the matter.
“The first respondent had no authority to administratively reverse or nullify that judicial determination.”
The affidavit argues that any challenge to such a recusal decision could only lawfully proceed through review or appeal proceedings.
Dr Matlosa also warns that compelling a judicial officer to resume a matter after recusal creates an impermissible form of administrative influence over judicial functions.
“Judicial independence requires that judicial officers decide matters free from interference, pressure or direction.”
He further submits that allowing a judicial officer to return to a matter after acknowledging a conflict of interest undermines public confidence in the justice system.
“Any reasonable litigant, informed of the relevant facts, would reasonably question the propriety of requiring a judicial officer to adjudicate a matter after he has already declared himself disqualified because of a personal relationship.”
Dr Matlosa dismisses arguments based on convenience or expediency.
“Convenience and efficiency cannot cure a disqualifying conflict of interest already expressed.”
The matter is expected to be heard in the High Court tomorrow (Monday).
Mr Thoso, Mr Monoko, the Registrar of the Labour Court, the Judicial Service Commission, the Attorney General and Prof Mosito are cited as respondents in the labour appeal.
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