Thabane disowns fake gazette

Thabane disowns fake gazette

MASERU – KING Letsie III never issued a gazette appointing South Africa’s Justice Yvonne Mokgoro as Lesotho’s acting President of the Court of Appeal. This was revealed in a constitutional case in which Attorney Qhalehang Letsika, Advocate Motiea Teele KC and Advocate Karabo Mohau KC are challenging the removal of Justice Mokgoro.

The lawyers filed the case after the government last week appointed Justice ’Maseshophe Hlajoane as acting president of the Court of Appeal.
The three lawyers rushed to the Constitutional Court seeking an order to block Justice Hlajoane’s appointment saying Justice Mokgoro’s removal was unconstitutional.

Prime Minister Thomas Thabane, Attorney General Advocate Haae Phoofolo KC and senior staff from the Government Printers this week filed affidavits saying there was no gazette that was issued appointing Justice Mokgoro.
Justice Mokgoro herself conceded in a letter to Phoofolo that her appointment was never effected.

The three lawyers’ case relies heavily on what they say was the wrongful and unlawful manner in which Justice Mokgoro was removed from office to pave way for Justice Hlajoane.
In her letter, Justice Mokgoro said although she had proactively proceeded with the process of operationalising the Court of Appeal due to the urgency impressed upon her to hear the urgent matter when she was approached, she “certainly appreciates that the acting appointment had then and has now not been effected”.

“That was indeed my understanding,” she said in her letter. Justice Mokgoro further said “under the circumstances. . . I withdraw my availability to serve as Acting President of the Appeal Court”. “I have already halted any further proactive work to convene a bench to hear the urgent matter and further operationalise the Appeal Court for the April session,” the letter partly reads.

In his affidavit, Thabane said the plan to appoint Justice Mokgoro “did not morph into a valid and operative government gazette”.
“The suggestion that she was appointed to that position is incorrect in all fronts,” Thabane said. Thabane told Justice Tšeliso Monaphathi that the three lawyers’ application “constitutes an abuse of this Honourable Court’s process”. The three lawyers’ application relied on a gazette leaked from the Government Printers appointing Justice Mokgoro as the acting President of the Court of Appeal.

Thabane said they relied on “an unauthentic document”. “The mainstay of their case is based on the document in issue (and they say) I did not exercise my constitutional powers properly and by reason of the alleged arbitrary removal of Justice Mokgoro,” he said.
“The error in the edifice which (the three lawyers) sought to construct is in its own foundation which is the unauthentic Legal Notice No. 13 of 2018,” he said.

Thabane said after Justice Mokgoro said she was no longer available, he thought it “desirable in the interest of justice that her contemplated appointment . . . be discontinued, and it was effectively discontinued internally after proper consultation with her, and she does not cry foul”.
Thabane said there is nothing that can prevent him from recommending Justice Hlajoane to the King for appointment as the acting president of the Court of Appeal.

In an affidavit, the Parliamentary Counsel Ntebaleng Morojele said before the gazette the three lawyers are relying on could be released, she received an instruction from Phoofolo halting its publication. Morojele said she immediately instructed the publications officers, Ntolo Mohale and ’Mamoshoeshoe Nkuebe, to halt any process of publishing the gazette.

Mohale and Nkuebe also deposed to affidavits saying they stopped the publication of the gazette, although it had already been printed.
The gazette was kept at a safe place until further notice from Phoofolo. Morojele suggested that any person who leaked the unpublished gazette must be dealt with. Advocate Motiea Teele argued before the court that the swearing-in of Justice Hlajaoane should be interdicted.
Teele told the court that they are not against Justice Hlajaoane as a person but they are concerned about the circumstances under which her appointment was made.

He said if this is not done it would soil the dignity of Justice Hlajaoane. Teele argued that Justice Mokgoro could not just be removed from office with a slap of a finger. He argued that the applicants are not hooligans but lawyers. He said they are afraid that the reputation of Justice Hlajoane would be mired in these controversies.

“Without proper removal of Justice Mokgoro, we could not have a subsequent candidate,” Teele argued. “Her appointment was constitutional hence the necessity for her to be removed constitutionally,” he said. He argued that the gazette is just a piece of paper that shows what has already been constituted. Advocate Monaheng Rasekoai who appeared for the respondents argued that Justice Mokgoro had already written a letter indicating that she was no longer interested in the job.

“The information pertaining to Justice Mokgoro’s appointment was the apex court document which is not easily accessible hence a person who disseminated such document has to be interrogated,” he said.  He said the people who leaked that information to the public should face the full might of the law. He said the gazette for the appointment of Mokgoro was not a legal instrument at all.

Meanwhile, Adv Christopher Lephuting who also appeared for the respondents argued that there is no way the court could deal with a document that had been acquired illegally. Judge Monaphathi ruled that the case has to be treated as an urgent matter.
Heads of arguments are expected to be filed early next week.

Majara Molupe & Senate Sekotlo

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