AG appeals High Court ruling

AG appeals High Court ruling

Staff Reporter

MASERU – ATTORNEY General Tšokolo Makhethe’s appeal against a High Court ruling that former Prime Minister Thomas Thabane was right to send him on forced leave is set to be heard today.

The Attorney General was ousted in 2014 and when he asked for the High Court’s intervention, there was an arrangement for a settlement between him and the government.

Makhethe was reinstated to his position but the government in a fresh twist to the case ordered him to go on leave, which he challenged in the High Court. He however lost that case.

High Court judge Justice Thamsanqa Nomncongo in March last year ruled that Makhethe was not deprived of his legal right when Thabane ordered him to go on leave with full benefits.

Makhethe had in June 2014 asked Justice Nomncongo to order Thabane and the government not to interfere or prevent him from continuing to discharge his duties.

He had also asked the judge to order Thabane and the government not to deprive him of his salary and all benefits and entitlements and privileges that he had as the Attorney General.

He also asked the judge to restrain and interdict Thabane and the government from advising King Letsie III to appoint any person as the Attorney General pending the outcome of the case.

Makhethe lost the case in March last year.

He had also asked Justice Nomncongo to charge Thabane, the then Government Secretary Moahloli Mphaka and the police for contempt of court after he was removed from office by force contrary to an earlier order of court.

The earlier order had said he would “continue to function as such and to obtain his benefits. The keys and car are to be returned to him”.

It was after the ruling that there would be an arrangement for a settlement between Makhethe and Thabane and “if the matter does not come back to court the status quo shall be maintained until the matter is finalised”.

Makhethe resumed duties and this was followed by correspondences between him and the government in an attempt to come to some settlement.

The exercise did not appear to make much headway.

Among the correspondences was one dated August 7, 2014 in which Makhethe’s lawyers indicated that they would await the outcome of a judgement in the Directorate of Public Prosecution’s matter, which was similar to Makhethe’s.

That court essentially dismissed the DPP’s application.

Following that, Mphaka wrote to Makhethe directing him to proceed on special leave because in the view of the Prime Minister the outcome of the judgement was definitive of the law until otherwise ruled by the Court of Appeal as to when the DPP and by extension the Attorney General must retire.

Mphaka went to Makhethe’s office in the company of five police officers, one of whom Makhethe identified as Senior Inspector Chechile, who told him to vacate office immediately under pain of physical force should he resist.

He vacated office to avoid being physically man-handled out of his office.

Senior Inspector Chechile took away his office keys from his secretary and subsequently a new set of locks were installed in his office.

It was under these circumstances that he approached court on an urgent basis and he wanted Justice Nomncongo to sentence Thabane and some members of the government for contempt of court.

However, his lawyers showed that they had little interest in pursuing the prayer for contempt but concentrated on the prayer for spoliation.

In this, Justice Nomncongo found that the extraordinary remedy is available to a person who has wrongfully been deprived his right of possession of property whether movable or immovable or of a legal right.

The judge said the requirement for the remedy is proof that Makhethe possessed the spoliated thing, and secondly that he was wrongfully deprived of such possession.

“It is however, not all legal rights that are amenable to remedy,” Justice Nomncongo said.

“For instance repudiation of contractual obligations have (sic) been held not to constitute spoliation,” he said.

Justice Nomncongo said the “crisp issue to decide here is whether a person in the position of [Makhethe] who is the substantive holder of the office of Attorney General can avail himself of this remedy”.

He said the office of Attorney General is an office in the public service.

“The incumbent of the office for the time being is, as such merely a servant. He enjoys certain benefit s as such incumbent. He does not hold the office on his own behalf but on behalf of the public that he serves, which in turn is represented by government,” the judge said.

He found that in the letter requiring Makhethe to proceed on leave “whether special or not it was specifically said that he retained all his benefits pertaining to his office pending the outcome of an appeal pending in the Appeal Court”.

“The case was identical to his and the Constitutional Court had ruled adversely against the DPP.”

The judge said Makhethe, “instead of doing the honourable thing and going on leave in the face of a judgement by the Constitutional Court” chose to approach the court for a remedy that is not available to him.

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