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Fund in damaging legal brawl



MASERU-A squabble over the appointment of a service provider has left the Public Officers Defined Contribution Pension Fund (PODCPF) in the throes of a damaging legal battle.

Tensions have been simmering over the past ten months, with the PODCPF’s board divided over the appointment of an administrator for the M7 billion fund whose nearly 40 000 members are government employees.
Matters came to a head on March 26 when the board appointed NBC Lesotho, a company that has held the contract since the Fund’s inception. Five of the nine-member board voted for NBC Lesotho while four backed Akani Retirement Fund Administrators.

The vote, which should have ideally resolved the matter, has triggered a legal fight that might drag on for months.
A day after the vote the Public Officers Defined Contribution Pension Association filed an urgent High Court application to block NBC Lesotho’s appointment.

Now Thabo Thulo, PODCPF’s principal officer, has cautioned that the legal battle could have a serious impact on the Fund’s operations.
Thulo makes the stern warning in his answering affidavit to the application filed by the association in March.

The association argues that NBC Lesotho’s appointment was illegal and illogical because its sister company, NBC Holdings, is embroiled in ‘malpractices’ in South Africa.
Of concern to the association is the NBC Holdings’ on-going legal wrangle with Chemical Industries National Provident Fund (CINPF).

Although the case in South Africa is yet to be finanlised the association insists that it makes NBC Lesotho unfit to manage the PODCPF. The association further points to forensic and due diligence reports that it says paint NBC Holdings in bad light.

Advocate Molefi Ntlhoki, the association’s lawyer, alleges that the board appointed NBC Lesotho “notwithstanding serious risks and concerns identified by the forensic audit reports and due diligence report”.
The association wants the court to block the board from signing a contract with NBC Lesotho pending the finalization of the case. It also seeks an order for the board’s decision to be “reversed, corrected and set aside as irrational and therefore unlawful and without an effect and force in law”.

Molise Chabana, the secretary general of the association, makes the same arguments in his affidavit.
Chabana says the 27 members of the association who have filed the case have a legal right to seek relief because of their interest in the PODCPF.
But Thulo, in his affidavit, tells the court that NBC Lesotho won the contract fair and square.

He argues that the application should be dismissed because only two of the 27 association members named as applicants are members of the pension fund.

The rest, Thulo says, left the pension fund and opted to take annuities with Metropolitan Lesotho.
“They have no interest whatsoever in the application and they are not entitled to any relief,” Thulo says.

“On this basis, the application in respect of those persons stands to be dismissed.”
Thulo says the board followed all procurement procedures before awarding the contract.

Giving a chronology of what transpired during the tender, Thulo says NBC Lesotho and Akani were shortlisted out of four companies after they had scored above the 70 percent threshold.
On the technical proposal NBC Lesotho scored 86.83 percent while Akani had 76.83 percent.

On the financial proposal NBC Lesotho charged M39.75 on each member per month while Akani quoted M35.
Thulo says on 24 November last year the evaluation committee recommended the appointment of NBC Lesotho but referred the pricing issue to the board.
The committee said its recommendation was based on the fact that NBC Lesotho was technically superior and was already familiar with the Fund’s operations.

Documents seen by thepost show that at the November 28 meeting some board members proposed a due diligence on both NBC Lesotho and Akani.
Minutes of that meeting reveal that there was a debate about that proposal, with some board members questioning the motive of having a due diligence when the bids had been evaluated and the preferred bidder had been recommended.

Some board members asked why there should be a due diligence when the issue to be decided was not the technical capacity of the companies but their pricing.

Others queried how the due diligence would affect the outcome of the evaluation and pointed out that such an exercise would amount to a re-evaluation of the bids.
The board however instructed the committee to define the parametres of the due diligence.

In December the committee established the parametres which it later presented to the board in January this year. The committee also appointed a firm to conduct the due diligence.

But Thulo says by that time the board already had all the information from the bidders, including NBC Holding’s issue with the CINPF in South Africa.
The due diligence was conducted over three days in mid-February and the committee discussed the report a few days later but was divided on who to appoint. Three backed NBC Lesotho and two supported Akani.

By that time it was clear that the board too was divided over the issue.
Those factions became clear when the committee asked the board to make the final decision at its extraordinary meeting on February 28.
A day before the meeting the chairperson of the board received a letter from Futho Hoohlo, a trustee, pleading with her to cancel the meeting because he had asked the Minister of Finance to intervene.

Board members Matheakuena Lekhoaba, Monaheng Matlatsi and Mofota Shomari also signed Hoohlo’s letter.
The four then boycotted the February 28 meeting which consequently failed to make a quorum.

Minutes of that meeting show that those who attended were annoyed that Hoohlo had approached the minister before the board received the evaluation committee’s recommendation after the due diligence.
Thulo, who is an ex-officio member of the board and does not vote, tells the court that members felt that the four had moved “prematurely to seek intervention and deprived the board statutory right to deal with the matters within its powers and responsibility”.

Hoohlo and company also boycotted another special meeting called to discuss their concerns.
When they eventually attended a board meeting on March 26, the evaluation committee presented its report but revealed that it was now divided on which company to appoint. Three favoured NBC Lesotho while two wanted Akani.

Thulo says each side presented its reasons for its preference.
NBC Lesotho then won the contract with five votes from the nine board members. Akani received four.

A day later the pensioners association filed the application to block NBC Lesotho’s appointment, arguing that the decision was unlawful.
Thulo also claims that even as the evaluation committee was working on its final report Akani did not have a trader’s licence. He says the company was still in consultation with the Ministry of Trade over the licence.
“NBC was already operational while Akani was not,” he says.

“Akani was still awaiting stakeholders’ consultation with the Central Bank of Lesotho. They were therefore not ready to perform the service.
Thulo also questions why board members who took part in the tender now disown the “democratic process”. Those board members, he adds, know that the process was fair and transparent.

“The board followed a democratic process. It requested the Evaluation Committee to look into the certain aspects of NBC Lesotho.”
He says Mahlatsi, the pensioner association’s representative on the board, “knows how the process was unfolding and there was no untoward conduct”.

Staff Reporter

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Lawyer in trouble



A local lawyer, Advocate Molefi Makase, is in soup after he flew into a rage, insulting his wife and smashing her phone at a police station.

It was not possible to establish why Adv Makase was so mad at his wife. He is now expected to appear before the Tšifa-li-Mali Magistrate’s Court on Tuesday.

Earlier on Tuesday, he was released from custody on free bail on condition that he attends remands.

Magistrate Mpotla Koaesa granted Advocate Makase bail after his lawyer, Advocate Kefuoe Machaile, pleaded that he had to appear for his clients in the Court of Appeal.

Advocate Makase is facing two charges of breaching peace and malicious damage to property.

According to the charge sheet, on October 5, 2023, within the precincts of the Leribe Police Station, Advocate Makase allegedly used obscene, threatening, or insulting language or behaviour, or acted with an intent to incite a breach of the peace.

The prosecution alleges that the lawyer shouted at his wife, ’Mamahao Makase, and damaged her Huawei Y5P cell phone “with an intention to cause harm” right at police station.

During his initial appearance before Magistrate Koaesa, Advocate Makase expressed remorse for his actions and sought the court’s leniency, pleading for bail due to an impending appearance in the Court of Appeal.

His lawyer, Advocate Machaile, informed the court that an arrangement had been made with the police to secure his release the following day, as he had spent a night in detention.

Advocate Machaile recounted his efforts to persuade the police to release him on the day of his arrest.

He noted that the police had assured them of his release the following day, which indeed came to fruition.

Following his release, he was instructed to present himself before the court, which he dutifully complied with.

Advocate Machaile underscored Advocate Makase’s standing as a recognised legal practitioner in the court.

Notably, he was scheduled to appear in the Court of Appeal but had to reschedule his commitment later in the day to accommodate his court appearance.

Advocate Machaile asserted that Advocate Makase presented no flight risk, as he resides in Hlotse with his family and has no motive to evade his legal obligations.

He respectfully petitioned the court for his release on bail, emphasising that he had demonstrated his ability to adhere to the court’s conditions.

The Crown Counsel, Advocate Taelo Sello, expressed no objection to the bail application, acknowledging that the accused had a forthcoming matter in the Court of Appeal.

Consequently, the court granted Advocate Makase bail without any financial conditions, with the stipulation that he must not tamper with state witnesses and must fully participate in the trial process until its conclusion.

’Malimpho Majoro

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Trio in court for killing ‘witches’



THREE elderly women were all stabbed to death with a spear during a deadly night after they were accused of being witches.

Three suspects, all from Ha-Kholoko village in Roma, appeared in the High Court this week facing a charge of murder.
They are Jakobo Mofolo, Oele Poto, and Pakiso Lehoko.

They accused the elderly women of bewitching one of Poto’s relative who had died.

The stunning details of the murder was unravelled in court this week, thanks to Tlhaba Bochabela, 32, who is the crown witness.

Bochabela told High Court judge, Justice ’Mabatšoeneng Hlaele, last week that he had been invited to become part of the murder group but chickened out at the last minute.

Bochabela said in March 2020, he was invited by Rethabile Poto to come to his house in the evening.

He said when he went there, he found Mofolo, Poto, and Lehoko already at the house. There were two other men who he did not identify.

“I was told that the very same night we were going to do some task, we were going to kill some people,” Bochabela told Justice Hlaele.

He said he asked which people were going to be killed and was told that they were ’Malekhooa Maeka, ’Mathlokomelo Poto, ’Mampolokeng Masasa.

They said the three women had successfully bewitched Rethabile Poto’s uncle leading to his death.

Bochabela said after he was told of this plot, he agreed to implement it but requested that he be allowed to go to his house to fetch his weapon.

He said Lehoko was however suspicious that he was withdrawing from the plot and mockingly said “let this woman go and sleep, we can see that he is afraid and is running away”.

Bochabela said the only person he told the truth to, that he was indeed going to his home to sleep instead of going to murder the three elderly women was Mofolo who also told him that he was leaving too.

He said he told Mofolo that he felt uncomfortable with the murder plan.

Bochabela said he left and when he arrived at his place he told his wife all about the meeting and the plot to kill the women.

He said his wife commended him for his decision to pull out.

“I told my wife to lock the door and not respond to anyone that would come knocking looking for me,” Bochabela said.

He said later in the night, Rethabile Poto arrived at his place and called him out but they did not respond until he left.

Bochabela said in the morning they discovered that indeed the men had carried out their mission.

The village chief of Ha-Kholoko, Chief Thabang Lehoko, told Justice Hlaele that it was between 11 pm and 12 midnight when he received a phone call from one Pakiso Maseka who is a neighbour to one of the murdered women.

Chief Lehoko said Maseka told him to rush to ’Mampolokeng Masasa’s place to see what evil had been done to her.

“I rushed to Masasa’s place and on arrival I found Pakiso in the company of Moitheri Masasa,” Chief Lehoko said.

He said he found the old lady on the bed, naked with her legs spread wide.

“I was embarrassed by the sight of the old lady in that state, naked and covered in blood,” the chief said.

He said he went out and asked Maseka what had happened but Maseka referred him to Moitheri Masasa.

Chief Lehoko said Masasa told him that there were people with spears who had threatened to kill him if he came out of the house.

He said Maseka said he knew that Masasa’s neighbour, ’Malekhooa Maeka, was a light sleeper and she could have heard something.

The chief then sent one Patrick Lehoko to Maeka’s house to check if she had heard anything but Patrick came back saying Maeka was not at her house.

“I immediately stood up and went to ’Malekhooa’s place,” Chief Lehoko said.

He said when he arrived, he knocked at her door but there was no response so he kicked the door open, went in and called out ’Malekhooa Maeka by name.

Chief Lehoko said he then lit his phone and saw her lying in bed covered in blankets.

He said he then went closer to her and shook her but she was heavy.

Chief Lehoko said he tried to shake her again one last time while still calling her out but he touched blood.

He said he immediately left and went back to tell others that Maeka seemed to be dead too.

“I decided to go and buy airtime from the nearest shop which I had passed through near ’Matlhokomelo Poto’s home.”

He said on his way he met one Sebata Poto who asked him who he was.

Chief Lehoko said he only replied by telling him that the two women, Masasa and Maeka, had been murdered.

He said Sebata Poto told him that “’Matlhokomelo has been stabbed with a spear too”.

Chief Lehoko said he rushed to ’Matlhokomelo Poto’s house where he found her seated in the middle of the house supported by her children with blood oozing from her chest, gasping for air.

“I stepped out and went to get airtime, but I found her dead when I returned from the shop,” the chief said.

The case continues.

Tholoana Lesenya

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Opposition fights back



THE opposition is launching a nasty fightback after Prime Minister Sam Matekane defanged their no-confidence motion by roping in new partners to firm up his government.

Matekane’s surprise deal with the Basotho Action Party (BAP) has trimmed the opposition’s support in parliament and thrown their motion into doubt.

But the opposition has now filed another motion that seeks to get Matekane and his MPs disqualified from parliament on account that they were elected when they had business interests with the government.

The motion is based on section 59 of the constitution which disqualifies a person from being sworn-in as an MP if they have “any such interest in any such government contract as may be so prescribed”.

Section 59 (6) describes a government contract as “any contract made with the Government of Lesotho or with a department of that Government or with an officer of that Government contracting as such”.

Prime Minister Matekane’s Matekane Group of Companies (MGC) has a history of winning road construction tenders. Other Revolution for Prosperity (RFP) MPs, most of whom were in business, had had business dealings with the government.

It is however not clear if the MPs were still doing business with the government at the time of their swearing-in.
Matekane’s MGC Park is housing the Independent Electoral Commission (IEC), which is a government institution established by the constitution, getting its funds from the consolidated funds.

The motion was brought by the Popular Front for Democracy (PFD) leader Lekhetho Rakuoane who is a key figure in the opposition’s bid to topple Matekane.

The motion appears to be a long shot but should be taken in the context of a political game that has become nasty.
Advocate Rakuoane said the IEC’s tenancy at the MGC is one of their targets.

“The IEC is one of the government departments,” Rakuoane said.

“It is currently unethical that it has hired the prime minister’s building.”

“But after the motion, he will have to cut ties with the IEC or he will be kicked out of parliament.”

The Democratic Congress (DC) leader, Mathibeli Mokhothu, said although the IEC is an independent body, it can still be regarded as part of the government because it gets its funding from the consolidated fund.

The Basotho Covenant Movement (BCM)’s Reverend Tšepo Lipholo, who seconded the motion, said the Matekane-led government “is dominated by tenderpreneurs who have been doing business with the government since a long time ago”.

“Now they have joined politics, they must not do business with the government,” Lipholo said.

He said some of the MPs in the ruling parties are still doing business with the government despite their promises before the election to stop doing that.

“Those who will not abide by the law should be disqualified as MPs,” Lipholo said.

“Basotho’s small businesses are collapsing day-by-day, yet people who are in power continue to take tenders for themselves.”

He applauded the Abia constituency MP Thuso Makhalanyane, who was recently expelled from Matekane’s RFP for rebellion because he withdrew his car from government engagement after he was sworn in as an MP.

“He set a good example by withdrawing his vehicle where it was hired by the government,” Lipholo said.

Rakuoane said during the past 30 years after Lesotho’s return to democratic rule, section 59 of the constitution has not been attended to even when it was clear that some MPs had business dealings with the government.

“This section stops you from entering parliament when doing business with the government. Those who are already members will have to leave,” he said.

Rakuoane said they are waiting for Speaker Tlohang Sekhamane to sign the motion so that the parliament business committee can set a date for its debate.

“The law will also serve to assist ordinary Basotho businesses as they will not compete with the executive,” he said.

“There are many Basotho businesses in business these MPs are in. They must get those tenders instead.”

The new motion comes barely a week after a court application aimed at disqualifying Mokhothu.

The government-sponsored application sought the Constitutional Court to declare Mokhothu unfit to be prime minister because he was convicted of fraud in 2007.

Mokhothu has been suggested as Matekane’s replacement should the motion of no confidence pass in parliament.

Nkheli Liphoto

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