MASERU — MKM boss Simon Thebe-ea-Khale could find himself in serious trouble following revelations last week that he allegedly “approached” a High Court judge who was dealing with his troubled company’s court case.
Justice Lisebo Chaka-Makhooane recused herself from the MKM case on Saturday — the day she was supposed to hear the case — after alleging that Thebe-ea-Khale had sent a “mutual acquaintance” to her house last week to talk about the MKM case before her.
The judge was due to preside over the case in which the Central Bank of Lesotho is pushing for the liquidation of MKM on account that the company had gone bust.
The central bank argues that MKM is beyond redemption and allowing it to continue operating could destabilise the country’s financial sector as well as erode the remaining value that depositors still have in the troubled company.
It also argues that MKM was illegally operating banking and insurance businesses.
MKM has denied these allegations and argues that instead of pushing for its liquidation the central bank must allow it to pay out its 400 000 depositors.
Justice Chaka-Makhooane said the emissary she only identified as Ncube told her that he had been sent by Thebe-ea-Khale to discuss the case.
It is a criminal offence for anyone to influence a judge’s ruling on a case.
For allegedly approaching Justice Chaka-Makhooane through an emissary, Thebe-ea-Khale could find himself in trouble for trying to defeat the ends of justice or contempt of court.
“Approaching a judge who is dealing with a case in which you have direct or indirect interest is a serious crime,” said one Maseru-based lawyer who preferred not to be named.
He added that even lawyers could not privately approach a judge dealing with their pending cases.
A lawyer can only approach a judge in his chambers but, even then, the opposing lawyer must always be present, he said.
“A judge must be left to deal with a case without undue influence or appearance of undue influence,” he said.
So far no charges have been laid against Thebe-ea-Khale as yet but the lawyer said the High Court could still summon the beleaguered MKM boss to answer charges of contempt of court or trying to defeat the ends of justice.
In an affidavit, Justice Chaka-Makhooane said Ncube had “intimated” to her that he had been sent by Thebe-ea-Khale over the MKM case she was due to deal with last Saturday.
She said the emissary did not say exactly what Thebe-ea-Khale wanted “because I simply lost it”.
“I became so angry with him that I actually threatened the messenger (and Mr Thebe-ea-Khale) with the police and I sent the messenger packing,” she said.
“I thought long and hard about this episode and every time I came to this one conclusion, that in view of this unbecoming behaviour on the part of the respondent (Thebe-ea-Khale) it is incumbent upon me to announce this matter to the parties, in open court,” she added.
She said she felt “strongly” about the approach and decided to recuse herself from the case.
“In doing so I am avoiding even the semblance of suspicion that to a reasonable person there might be a reasonable apprehension that I might not be impartial or that there might be bias on my part,” she said in the affidavit.
“I say this alive to the fact that notwithstanding the strong presumption of impartiality that applies to judges, we are nevertheless held to certain stringent standards regarding bias.”
Justice Chaka-Makhooane said the approach was “not only offensive to me as a presiding judge, it also put me in an awkward position”.
She becomes the second judge to recuse herself from the MKM case in two months.
Justice Tseliso Monapathi, the High Court’s most senior judge after the chief justice, recused himself from the same case in April after indicating that he had borrowed a vehicle belonging to MKM at the time he was already presiding over the matter.
He also used the MKM car when his official vehicle — a Mercedes Benz — had gone for service.
Thebe-ea-Khale this week, however, vehemently denied the allegations that he had sent an emissary to Justice Chaka-Makhooane.
Thebe-ea-Khale told the Lesotho Times in an interview on Tuesday that he does not even know the Ncube who Chaka-Makhooane said Thebe-ea-Khale had sent to her.
“I don’t know what the judge is talking about. I don’t even know that man (Ncube) who she says I sent to her,” Thebe-ea-Khale said.
“However I learnt from the judge’s words that she (the judge) and that man (Ncube) are acquaintances. They are friends.”
“Ncube might be one of the 400 000 MKM members,” he added.
“He might have approached the judge because he has interest in the matter, but I cannot be held liable for whatever he might have said to the judge.
“I also fail to understand why the judge made that decision basing on a mere allegation without verifying whether that man’s allegations about me were true or not.”
Thebe-ea-Khale said the judge should have summoned him to ascertain if he had indeed sent someone to her.
“I can only say that the allegation, which the judge relied upon, is meant to tarnish my reputation,” he said.
MKM cases have since been handed over to Justice John Lyons, an Australian judge temporarily seconded by the Commonwealth to Lesotho to deal with commercial cases.