Leisa Leisanyane
MASERU – LIEUTENANT Colonel Tefo Hashatsi has lost a case in which he wanted the Court of Appeal to set aside the SADC Commission of Inquiry and declare all its findings null and void.
Hashatsi’s bone of contention was that the commission’s chairman, Botswana judge Justice Mphaphi Phumaphi, had made statements which suggested he was guilty over the killing of former army boss Maaparankoe Mahao in June last year.
Justice Phumaphi found that there was no mutiny by Lesotho Defence Force (LDF) soldiers and that it was unnecessary to shoot Mahao as there was no evidence that he could be dangerous to soldiers who had been sent to arrest him.
Hashatsi, who lost his initial urgent application in the High Court, wanted the Court of Appeal to declare the sitting of Justice Phumaphi’s commission in South Africa without legal force or effect.
He argued the evidence gathered in South Africa from LDF soldiers who had fled the country for allegedly plotting a mutiny had implicated him in the killing of Mahao and he was not there to defend himself.
Hashatsi also complained that the gathering of evidence outside the borders of Lesotho was not covered by the Public Inquiries Act.
He asked the Court of Appeal to order that evidence and facts relating to him be expunged from the record or proceedings of the commission.
He also did not want Justice Phumaphi and the entire commission to make any findings in relation to him.
Delivering judgement on Friday last week, the Acting President of the Court of Appeal Justice Ian Farlam dismissed Hashatsi’s application stating he had failed to “make out a case for relief” which he had sought.
The court found that Justice Phumaphi held a number of hearings both in Lesotho and South Africa and that Hashatsi testified in Lesotho on September 17 last year.
Justice Farlam said Hashatsi “received a summons issued by (the commission) requiring him to appear before it” and that “he was to testify on all the terms of reference”.
When he was testifying, Justice Phumaphi and another commissioner Brigadier General Noel Ndlovu “confronted him with allegations that he had been present when Brigadier Mahao was killed and that he was a suspect”.
Hashatsi had told Justice Phumaphi at the beginning of cross-examination that he would not answer any questions relating to Mahao’s death as he might incriminate himself.
So, when Justice Phumaphi put it to him that he was at the murder scene, his answer was “it is your opinion.”
The answer was the same for all questions related to Mahao’s death. He would either say “it is your opinion” or “no comment”.
When he approached the High Court and later the Court of Appeal, Hashatsi complained that Justice Phumaphi’s line of questioning was actually a cross-examination meant to depict him as a criminal.
He said Justice Phumaphi, by putting things to him as a witness, descended into the arena of the court and his view got clouded by the dust of conflict.
“This is what Justice Phumaphi appears to have done and lost all impartiality as a judge and trier of fact,” Hashatsi argued in his court papers.
“This disentitles him from making findings in relation to the matters affecting the death of Mahao as he has already prejudged the issues,” he said.
He also stated that the things which Justice Phumaphi put to him were never said by any of the witnesses who testified in public.
So, when he heard that he was to be called back to answer allegations against him after Justice Phumaphi held an inquiry in South Africa he refused to go saying the judge would repeat his irregular practice of unfairness and ambush.
He said Justice Phumaphi had acted unfairly by not giving him notice of any facts that he had against him as the law required.
Hashatsi, instead of going back to the commission to tell his side of the story, rushed to the High Court where he was granted an interim order interdicting Justice Phumaphi from taking any evidence from him pending his challenging its legality and the manner in which it was gathering evidence.
The commission’s time in Lesotho expired and it closed without Hashatsi giving his side of the story.
So, when he asked the court to declare it null and void and after the commission tabled its report to SADC, Mahao’s widow ’Mamphanya filed an interlocutory application in which she argued that the relief Hashatsi sought was no longer practical.
Delivering judgment, Justice Farlam agreed with ’Mamphanya and said “there is no living issue between the parties on this point”.
“The report has been submitted to the Chairman of SADC Organ on Politics, Defence and Security Cooperation and passed on to the Prime Minister, who has dealt with it,” Justice Farlam said.
“A decision of the court on the point will not alter those facts or have any further effect,” he said.
The judge however comforted Hashatsi by saying he was correct about Justice Phumaphi’s conduct of cross-examining him.
“I agree with the contention that Mr Justice Phumaphi’s way of questioning was inappropriate and calculated to create the impression that he had already made up his mind on certain issues, something a judge or chairman of a judicial commission of inquiry should not do,” he said.
He however turned to say Justice Phumaphi never said Hashatsi was guilty but instead he only said he was at the scene when Mahao was killed and narrated how he was killed.
“A member of the public who was aware of (the cross-examination) could only form a view as to (Hashatsi’s) guilt because he chose to rely on his right to refuse to answer questions that might incriminate him,” Justice Farlam said.
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