Blow for promoted cops

Blow for promoted cops

MASERU – COURT of Appeal President Justice Kananelo Mosito has dealt a blow to police officers who were controversially promoted a day after election last year.
Dismissing their appeal on Friday last week, Justice Mosito said they denied themselves an opportunity to be heard.
He also ordered that the officers must pay costs on attorney client scale to the Lesotho Police Staff Association (LEPOSA), Commissioner of Police and the Attorney General.
The 36 officers were controversially promoted by the then Police Commissioner, Molahlehi Letsoepa, a day after the snap election which ushered in Prime Minister Thomas Thabane’s coalition government.

LEPOSA lodged a court application seeking 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 a panel made up of Justices Mosito, Phillip Musonda and November Tafuma Mtshiya, Advocate Letuka Molati who represented the 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.
“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 of 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 the officers a chance 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).
Justice Mosito ruled that the Attorney General “may for a triad of reasons which may be ethical, legal and public policy withdraw if in his deliberate judgment, his participation may offend” these values.

He said the officers sought to validate their promotions “which could result in a budget over-run, which was inimical to the treasury” which is the Attorney General’s client.
“Government is his client and cannot prosecute any litigation which conflicts with the interests of his client,” Justice Mosito said.

He however quickly added that he did not mean to say the Attorney General should not defend or prosecute individual interests when such litigation is in furtherance of liberty and justice.
The top judge ruled that Justice Hlajoane could not have restrained LEPOSA, the Commissioner of Police and the Attorney General against their will not to withdraw their opposition to the officers’ application.

He said it is clear that the Attorney General and the Commissioner of Police “did not initiate or set in motion these proceedings in the (High Court) for them to be under legal compulsion to apply for leave or consent from the court and parties respectively”.
He said the police officers who sued had put the Attorney General, the Commissioner of Police and LEPOSA to expense and if it was them who wanted to withdraw they were bound by the law to apply for leave of court or consent of the other party to do so.

Drawing a distinction between withdrawing “pleadings” and “proceedings” Justice Mosito said affidavits were pleadings and withdrawing them cannot be equated to withdrawing a motion, which originates the process.

“There is no provision, which obligates a party from withdrawing an affidavit or requirement that such withdrawal should be accompanied by a prior application for leave of the court or consent of the other party,” he said.

Coming to the need to hear the other side, Justice Mosito said these officers “had notice of the withdrawal of the opposition”.
“They never filed opposing papers,” he said.

He said their allegation that they were denied a chance to be heard “bears no intellectual justification”.
“The appellants failed to invoke the procedure laid down in the Rules, this was self-denial of the right to be heard.”

Senate Sekotlo

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