Connect with us


JSC in legal jam



MASERU-THE Judicial Service Commission (JSC) could be in a legal jam after His Majesty King Letsie III allegedly rejected its recommendation to appoint the five new judges.
The king is said to have refused to appoint the judges because they were recommended by only two of the four members of the JSC bench.

The decision was made by Attorney General Haae Phoofolo and Acting Chief Justice ’Maseforo Mahase at the JSC meeting two weeks ago.
The other two members who are the Public Service Commission (PSC) chairman, Sehooho Moshoeshoe, and a High Court Justice Judge Sakoane Sakoane did not attend the meeting.

Advocate Phoofolo and Justice Mahase recommended the Deputy Attorney General Tšebang Putsoane, lawyers, Mokhele Matsau, Maliepollo Makhetha, Moneuoa Kopo and Tšabo Matooane.
The decision triggered an outcry from Justice Minister Professor Nqosa Mahao who described it as secretive, unlawful and politically motivated.
Prof Mahao said Advocate Phoofolo and Justice Mahase did not constitute a majority of the JSC and therefore lacked the authority to recommend candidates to the King. He said he was not consulted.

But Advocate ’Mathato Sekoai, the Registrar of the High Court who is also the JSC’s secretary, retorted that the commission was not obliged to consult the minister.
Advocate Sekoai also rejected the argument that the recommendations were unconstitutional.

Sekoai’s pushback came amid a public backlash with the legal fraternity also condemning the decision.
The cabinet is also said to be equally annoyed with the JSC.
Now the King’s reluctance to appoint the five judges has put the JSC in a quandary.

The commission faces several challenges as it seeks to address His Majesty’s concerns.
The first is whether those whose recommendation has been rejected should be considered again. The second is whether those who had not been recommended in the first sitting will be included in the selection.
In both scenarios the role of Advocate Phoofolo and Justice Mahase will be on the spotlight.

Will they be asked to recuse themselves given that their preferences are already known?
Even if they participate in the decision will they agree with an outcome that rejects their preferred candidates?

There is also the question of how the new process will be viewed by all the candidates.
Those questions are already being asked by one of the two JSC members who were not in the first meeting.
He told thepost that he doubts the five candidates should be considered “since they were selected through a dubious process already tainted by allegations of irregularity, secrecy and favouritism”.

“It is already clear that those five were preferred by the two members who recommended them. It cannot therefore be fair that those two members participate in another meeting where the same people are considered,” he said.
“There is also a possibility that some of the candidates who were not selected in the first sitting might challenge the participation of those two members who did not select them.”

“It cuts both ways because even those five might cry foul if they don’t make it. It’s about perception. Their names have already been made public and any decision to reverse their recommendations might give an impression that they were incompetent beneficiaries of a flawed selection.”
thepost can reveal that in addition to its demand to be consulted the government prefers that the JSC accepts more CVs to broaden the pool.
But Justice Mahase, who is the chairperson of the commission, could see this as undue interference from the executive. She is likely to insist on the separation of powers between the executive and the judiciary.

Her frosty relationship with Prof Mahao further complicates matters.
Prof Mahao was been at the receiving end of Justice Mahase’s controversial judgements in the court battles for the control of the All Basotho Convention (ABC) party.

There is a perception that the judge was fighting in former Prime Minister Thomas Thabane’s corner during the bruising battle for the control of the ABC.
Justice Mahase, on the other hand, believes Prof Mahao is out to get her for ruling against him.
The appointment of judges appears to be a new battleground for the warring factions within the ABC.

A prominent lawyer told thepost that the “real issue is not about the process of appointing the judges but who gets appointed”.
“The judiciary is caught up in a political battle. Whoever has their judges on the bench will have the upper hand in the battles that will soon ensue in the ABC,” the lawyer said.

The lawyer predicted a legal battle brewing over the appointments.
“While it might be true that the JSC’s decision was controversial, the other question is whether His Majesty can reject the commission’s recommendations. The constitution is silent on that issue.”
“That question might have to be answered by the courts. Our jurisprudence is just about to expand. The issues are whether the JSC was right to make the recommendations in that manner and whether the King can reject the commission’s preferred candidates.”

On Tuesday Sekoai said Prof Mahao did not officially complain about the JSC’s decision.
“Despite what the minister said in public the JSC has not received a letter from him officially stating his reservations about the decision,” Sekoai said.
“Thus far my response as the secretary of the JSC has been based on what journalists asked me about the process and what the minister said at the press statement. There is no official communication from the minister.”

Staff Reporter



City Council bosses up for fraud



THREE senior Maseru City Council (MCC) bosses face charges of fraud, theft, corruption and money laundering.

Town clerk Molete Selete and consultant Molefe Nthabane appeared in the Maseru Magistrate’s Court yesterday.

City engineer Matsoso Tikoe did not appear as he was said to be out of the country. He will be arraigned when he returns.

They are charged together with Kenneth Leong, the project manager of SCIG-SMCG-TIM Joint Venture, the company that lost the M379 million Mpilo Boulevard contract in January.

The joint venture made up of two Chinese companies, Shanxi Construction Investment Group (SCIG) and Shanxi Mechanization Construction Group (SMCG), and local partner Tim Plant Hire (TIM), has also been charged.

Selete and Nthabane were released on bail of M5 000 and surety of M200 000 each. Leong was granted bail of M10 000 and surety of M400 000 or property of the same value.

The charges are a culmination of the Directorate on Corruption and Economic Offences (DCEO) investigation that has been going on for the past months or so.

The prosecution says Selete, Nthabane, Tikoe, and Leong acted in concert as they intentionally and unlawfully abused the functions of their offices by authorising an advance payment of M14 million to a joint-venture building the Mpilo Boulevard.

An advance payment guarantee is a commitment issued by a bank to pay a specified amount to one party of a contract on-demand as protection against the risk of the other party’s non-performance.

The prosecution says the payment was processed after the company had provided a dubious advance payment guarantee. It says the officials knew that the guarantee was fake and therefore unenforceable.

As revealed by thepost three weeks ago, SCIG and SMCG were responsible for providing the payment guarantee as lead partners in the joint venture.

The prosecution says the MCC was required by law to make advance payment after SCIG-SMCG-TIM Joint Venture submitted a guarantee as per the international standards on construction contracts.

It alleges that the MCC has now lost the M14 million paid to SCIG-SMCG-TIM Joint Venture because of the fake advanced guarantee.

thepost has seen minutes of meetings in which officials from the joint venture admitted to MCC officers that the advance payment guarantee was dubious.

SCIG-SMCG-TIM kept promising to provide a genuine guarantee but never did. Yet the MCC officials did not report the suspected fraud to the police or take any action against the company.

It was only in January this year that the MCC cancelled the contract on the basis that the company had failed to provide a genuine guarantee.

Despite receiving the advance payment SCIG and SMCG refused to pay TIM Joint Venture for the initial work.

SCIG and SMCG, the lead partners in the joint venture, are reportedly suing the MCC to restore the contract. Officials from TIM Plant Hire however say they are not aware of their partners’ lawsuit against the MCC.

Staff Reporter

Continue Reading


Scott fights for free lawyer



DOUBLE-MURDER convict Lehlohonolo Scott is fighting the government to pay a lawyer to represent him in his appeal.
Scott, serving two life sentences for murdering Kamohelo Mohata and Moholobela Seetsa in 2012, says his efforts to get a state-sponsored lawyer have been repeatedly frustrated by the Registrar of the High Court, Advocate ’Mathato Sekoai.
He wants to appeal both conviction and sentence.
He has now filed an application in the High Court seeking an order to compel Advocate Sekoai to appoint a lawyer to represent him.
He tells the court that he is representing himself in that application because the Registrar has rejected his request to pay his legal fees or appoint a lawyer for him.
People who cannot fund their own legal costs can apply to the Registrar for what is called pro deo, legal representation paid for by the state.
Scott says Sekoai has told him to approach Legal Aid for assistance.
The Legal Aid office took a year to respond to him, verbally through correctional officers, saying it does not communicate directly with inmates.
The Legal Aid also said he doesn’t qualify to be their client.
“I was informed that one Mrs Papali, if I recall the name well, who is the Chief Legal Aid counsel, had said that Legal Aid does not communicate with inmates so she could not write back to me,” Scott says.
“Secondly, they represent people in minor cases. Thirdly, they represent indigent people of which she suggested I am not one of them.”
“Fourthly, there are no prospects of success in my case hence they won’t assist me.”
He says the Legal Aid’s fifth reason was that he has been in jail for a long time.
Scott is asking the High Court to set aside Sekoai’s decision and order her to facilitate pro deo services for him, saying her decision was “irregular, irrational, and unlawful”.
He argues that the Registrar’s role was to finance his case to finality, meaning up to the Court of Appeal.
The Registrar insists that the arrangement was to provide him a lawyer until his High Court trial ended.
Scott says his lawyer, Advocate Thulo Hoeane, who was paid by the state, had promised to file an appeal a day after his sentencing but he did not.
He argues that the Registrar did not hear him but arbitrarily decided to end pro deo.
Scott says he wrote to Acting Chief Justice ’Maseforo Mahase in 2018 soon after his conviction and sentencing seeking assistance but he never received any response.
Later, he wrote to Chief Justice Sakoane Sakoane in November 2020 and he received a response through Sekoai who rejected his request.
Scott tells the High Court that he managed to apply to the Court of Appeal on his own but the Registrar later told him, through correctional officers, that “the Court of Appeal does not permit ordinary people to approach it”.
He argues that “where justice or other public interest considerations demand, the courts have always departed from the rules without any problem”.
Staff Reporter

Continue Reading


Army ordered to pay up



THE Ombudsman has asked parliament to intervene to force the Lesotho Defence Force (LDF) to compensate families of people killed by soldiers.
Advocate Tlotliso Polaki told parliament, in two damning reports on Monday, that the LDF is refusing to compensate the family of Lisebo Tang who was shot dead by soldiers near the former commander, Lieutenant General Tlali Kamoli’s home in 2014.

The LDF, she said, is also refusing to compensate the family of Molapo Molapo who was killed by a group of soldiers at his home in Peka, Ha-Leburu in 2022.

Advocate Polaki wrote the LDF in January last year saying it should pay Tang’s mother, Makhola Tang, M300 000 “as a reasonable and justifiable redress for loss of support”.

The Tang family claim investigation started in February 2022 and the LDF responded that it “had undertaken the responsibility for funeral expenses and other related costs”.

Advocate Polaki investigated whether the LDF could be held accountable for Tang’s death and whether his family should be compensated while the criminal case is pending.

She found that the soldiers were “acting within the scope of their employment to protect the army commander and his family” when they killed Tang.

Soldiers killed Tang in Lithabaneng while she was in a parked car with her boyfriend at what the army termed “a compromising spot” near the commander’s residence.

The three soldiers peppered the vehicle with a volley of shots, killing Tang and wounding the boyfriend.

Advocate Polaki found that the army arranged to pay for the funeral costs and to continue buying groceries and school needs for Tang’s daughter.

The LDF, however, kept this for only four years but abruptly stopped.

When asked why it stopped, the army said “there is a criminal case pending in court”.

The army also said it felt that it would be admitting guilt if it compensated the Tang’s family.

The Ombudsman said “a civil claim for pecuniary compensation lodged is not dependent on the criminal proceedings running at the same time”.

“The LDF created a legitimate but unreasonable expectation and commitments between themselves and the complainant which had no duration attached thereto and which showed a willingness to cooperate and work harmoniously together,” Advocate Polaki found.

“The LDF was correct in withdrawing such benefit in the absence of a clear policy guideline or order to continue to offer such benefit or advantage,” she said.

“However, she should have been consulted first as the decision was prejudicial to her interest.”

She said the army’s undertaking “fell short of a critical element of duration and reasonability”.

Tang was a breadwinner working at Pick ’n Pay Supermarket as a cleaner earning M2 000 a month.

Her daughter, the Ombudsman said, is now in grade six and her school fees alone had escalated to M3 200 per year.

She said an appropriate redress should be premised on her family’s loss of income and future loss of support based on her salary and the prejudice suffered by her mother and daughter.

She said M300 000 is “a reasonable and justifiable redress for loss of support”.

In Molapo’s case, Advocate Polaki told parliament that the LDF refused to implement her recommendations to compensate his two daughters.

The complainant is his father, Thabo Joel Molapo.

The Ombudsman told the army in August last year that it should pay the girls M423 805 “for the negligent death of their father”.

Advocate Polaki said despite that the criminal matter is before the court, “it is established that the Ombudsman can assert her jurisdiction and make determinations on the complaint”.

Molapo, 32, was brutally murdered by a soldier in Peka in December 2020.

Molapo had earlier fought with the soldier and disarmed him.

The soldier, the Ombudsman found, rushed to Mokota-koti army post to request backup to recover his rifle. When he returned with his colleagues, they found him hiding in his house. The soldier then shot Molapo.

The LDF, the Ombudsman said, conceded that the soldier killed Molapo while on duty and that he had been subjected to internal disciplinary processes.

“The LDF is bound by the consequences of the officer’s actions who was negligent and caused Molapo’s death,” she said.

She found that after Molapo was killed, army officers and the Minister of Defence visited his family and pledged to pay his children’s school fees. They also promised to hire one of his relatives who would “cater for the needs of the deceased’s children going forward”.

The LDF, she said, has now reneged on its promises saying its “recruitment policy and legal considerations did not allow for such decision to be implemented”.

Molapo’s father told the Ombudsman that the LDF said “the undertakings were not implementable and were made by the minister at the time just to console the family”.

All the payments in the two cases, the Ombudsman has asked parliament, should be made within three months.

Staff Reporter

Continue Reading