Lawyers tussle over  legality of promotions

Lawyers tussle over legality of promotions

MASERU – THE Court of Appeal yesterday heard arguments in a case in which 36 police officers who were controversially promoted a day after snap elections last year are fighting for new salaries. The officers were controversially promoted by the then Police Commissioner Molahlehi Letsoepa.
The new government led by Prime Minister Thomas Thabane accused the previous government led by Pakalitha Mosisili of attempting to retain control of the police even after it had lost the election.

The Lesotho Police Staff Association (LEPOSA) then lodged a court application to nullify the promotions.
LEPOSA also sought a temporary order to freeze the newly promoted police officers’ salaries until the case had been finalised.
High Court judge, Justice ’Maseshophe Hlajoane, ordered that the new promotions should remain in force until the application had been finalised.
Later the High Court granted LEPOSA’s application for the nullification of the promotions after the new Commissioner Holomo Molibeli replaced Letsoepa and the new Attorney General Advocate Haae Phoofolo replaced Advocate Tšokolo Makhethe.

Commissioner Molibeli and Phoofolo withdrew their defence and this did not sit well with the promoted officers who were also cited as respondents in the case.
Their case heavily relied on Letsoepa’s affidavit, which Molibeli withdrew.
Arguing before Court of Appeal President Justice Kananelo Mosito and Justices Musonda and November, Advocate Letuka Molati for the promoted officers said Justice Hlajoane erred in accepting the withdrawal.

Molati reasoned that these officers did not authorise the withdrawal of the defence by Molibeli and Phoofolo as it “was filed and tendered on their behalf”.
“They stood and fell by it,” Molati argued.
At the time of the withdrawal of Letsoepa’s affidavit, which he made in his official capacity, Letsoepa was on leave and Molibeli was acting in his absence.
Molati argued that Letsoepa should have authorised it because at the time he was the substantive commissioner.

“The withdrawal of the affidavit did not satisfy the legal requirements for withdrawal of affidavits per the past judicial precedents,” Molati said.
He said the withdrawal of the affidavit and the opposition of the case against LEPOSA’s application “was not accompanied by a substantive application for withdrawal of the admissions made by the substantive commissioner of police that the promotions were properly done”.
The former Attorney General Makhethe had filed an intention to oppose and an answering affidavit for all the promoted officers, court papers which the incoming Attorney General Phoofolo withdrew.

The withdrawals led to the High Court granting LEPOSA’s application for lack of opposition.
Justice Hlajoane also denied these officers to make submissions against the granting of LEPOSA’s application.
Molati argued that Justice Hlajoane failed to observe the principle of audi alterum partem (hear the other side).
On behalf of LEPOSA, Advocate Makhetha Motšoari, argued that Justice Hlajoane’s decision “is analogous to the granting a default judgment which is contrary to settled principle and law in Lesotho”.

Motšoari said it is misleading that the promoted officers seek to state that LEPOSA was not allocated a date of hearing and that the procedure was not followed.
“We humbly submit that the (promoted officers) must not come and mislead this Honourable Court by stating procedural analogy in the hope of stating that the court a quo unilaterally took a decision without taking all the factors into consideration,” Motšoari argued.

He said their insistence that they neither consented to the withdrawal of the opposition nor were their views taken into consideration when a decision to allow the withdrawal of already tendered evidence was made holds no water.
“This contention is without any force and effect in law,” he argued.

Citing Rule 43 of the High Court Rules, Motšoari said: “A person instituting any proceedings may at any time before the matter has been set down and thereafter by consent of the parties or by leave of court, withdraw such proceedings.”

Advocate Chris Lephuthing, on behalf of the Attorney General and the Commissioner Molibeli, said the withdrawn affidavit of Letsoepa “contains matters of opinions and conclusions on alleged meeting of the Promotions Board, which did not proceed in the presence of (the promoted officers).”

Senate Sekotlo

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