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Legal brawl looms over new judges

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MASERU-A legal battle is brewing after the Judicial Service Commission (JSC) allegedly cut corners and recommended five people for appointment as judges.

Law Minister, Professor Nqosa Mahao, says the government will change the decision because it is “patently unconstitutional”.
What has irked the minister is that only two of the four JSC members recommended the five candidates to the King.

It appears that Attorney General Haae Phoofolo and Acting Chief Justice Maseforo Mahase were present in the meeting. The other two who are the Chairman of the Public Service Commission Sehooho Moshoeshoe and Justice Sakoane Sakoane did not attend the meeting.
The five candidates were selected from a list of eight Curriculum Vitaes. No one knows how the shortlist was compiled or who handpicked the candidates.

Their names have been kept under wraps since the recommendations were made last Thursday.
thepost has withheld the names because they could not be conclusively verified at the time of going to print last night.

It appears that among them is a senior official in the Attorney General’s office, an advocate working at the Lesotho Revenue Authority, a senior Mosotho lawyer working in South Africa as well as two practising lawyers.
One of the lawyers is said to be operating from an office at Hopolang Building in Maseru while the other works from downtown.
The name of another lawyer working in Swaziland has also been mentioned.

Last night High Court Registrar, ’Mathato Sekoai, who had been mentioned, vociferously denied being a candidate.
Speaking as the JSC’s secretary, Sekoai refused to reveal the names. She however insisted that the decision was constitutionally correct.
Sekoai said the constitution explicitly states that there should be no political influence in appointment of judges.

To explain why only two of the four JSC members made the decision, she quotes section 132 (10) of the constitution.
That section says “The Commission may, subject to its rules of procedure, act notwithstanding any vacancy in its membership or the absence of any member, and its proceedings shall not be invalidated by the presence or participation of any person not entitled to be present at or to participate in those proceedings: Provided that any decision of the Commission shall require the concurrence of a majority of all the members thereof”.

This, Sekaoi said, means that the Attorney General and the Acting Chief Justice formed a quorum and had the power to make the appointment.
But Professor Mahao said Sekoai is misreading that section to justify an illegal decision. He said the registrar has been quoting the first part of the clause and leaving out the proviso that said “provided that any decision of the Commission shall require the concurrence of a majority of all the members thereof.”

“The defining part of the section talks about the majority. It is clear that only two out of four JSC members made the decision. Two cannot be a majority of four,” Professor Mahao said last night.
“She reads the same section but stops before getting to the proviso. That is fraudulent because the people will think you know (what you are talking about) but you would have defrauded them.”

On Tuesday Professor Mahao described the decision as “politically motivated”.
“It’s so surprising for two people to appoint judges, it’s simply conflict of interest,” he said.
“Even up to date, the Attorney General has never said anything to me but we do still meet,” he said.

‘‘To my knowledge, judges have to be appointed based on their talents and experience, their names have to be known, and interviews have to be conducted,” he said.
“This thing that they did was never blessed by the government and we are hoping to solve this problem soon.”

He said they did not know the procedure which Justice Mahase and Advocate Phoofolo took when appointing the judges.
“The judicial institution is unstable and it is politically influenced,” the minister said.
“We have seen a lot of politics taking place in court. For example, former Chief Justice Nthomeng Majara was removed; they even wanted to remove the President of the Court of Appeal.”

But Sekoai is sticking to her guns, insisting there is no constitutional provision for the JSC to consult the Minister of Law. She also dismissed the minister’s allegations of political influence.
“One could say the fact that the decision was confined to the JSC means that it was insulated from political influence.”

In the meantime, details of how only two JSC members made the decision are beginning to emerge.
Last night Sehooho, the Public Service Commission chairman who did not attend the meeting, described the decision and the nomination as curious.
Moshoeshoe said a few days before the meeting he asked about the list of candidates but the Registrar kept telling him that she was still photocopying the documents.

“What happened in this case is not the normal practice. We normally get the agenda and the supporting documents a day before the meeting. That did not happen in this case despite repeatedly asking the Registrar,” Moshoeshoe said.

“I decided not to attend the meeting because I didn’t get documents relating to the agenda, particularly the list of the candidates and their CVs.”
Moshoeshoe said it is unprecedented that two JSC members can appoint judges on their own.
“We have agreed and it has always been our practice that when it comes to sensitive issues like the appointment of judges all the JSC members should be present.”

“We have done that in previous appointments including that of foreign judges. We always get their names and CVs a day before the meeting. I don’t know why it was not done this time.”

“I thought we would see the supporting documents days before the meeting so that we could apply our mind and make informed decisions. We waited for the full package but it never came,” Moshoeshoe said.
The judiciary has always been drawn into the political turf wars.
The latest fight appears to well from the fact that both the Attorney General and Acting Chief Justice are seen as politically compromised.
Justice Mahase has been accused of fighting in former Prime Minister Thomas Thabane’s corner.

She made highly questionable rulings in Thabane’s favour during his fight with Professor Mahao over the control of the All Basotho Convention (ABC).
Those decisions were quashed and roundly criticised by the Court of Appeal. Later her decision to grant bail to Thabane’s wife was also reversed by the same court which also censured her for the hasty manner she made the ruling.

Thabane also fought but lost the battle to confirm Justice Mahase as the substantive Chief Justice.
Her husband is also close friends with Thabane.
Advocate Phoofolo is a former ABC MP and was seen as close to Thabane. Some of his legal advice has been seen as highly influenced by his connection to Thabane.

Sources in the ABC told thepost that the appointment of judges has been caught up in the factional fights within the ABC.
“This is about power and control. Whoever controls the judiciary is in charge,” said a highly placed source within the ABC.

“Some see Thabane’s hand in all this. Remember he and his wife face murder charges. The battle is now in the judiciary.”

Itumeleng Khoete

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Doctor tampers with corpse

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THE Mokhotlong Government Hospital has agreed to pay M200 000 as compensation to the husband of a deceased patient after a doctor unlawfully tampered with the corpse.

There is a deed of settlement between the hospital and Jacob Palime, the deceased woman’s husband.

Jacob Palime rushed to the High Court in Tšifa-li-Mali last year after the hospital failed to explain why the doctor had tampered with his wife’s corpse at a private mortuary behind his back.

His wife’s body had been taken to the Lesotho Funeral Services.
Palime lives in Phahameng in Mokhotlong.

In his court papers, Palime was demanding M500 000 in compensation from the hospital “for unlawful invasion, intrusion and interference with” his rituals and rights over his dead wife.

He informed the court that his wife died in September 2020 at Mokhotlong Hospital.

“All requisite documentation pertaining to her release to Lesotho Funeral Services were effected and ultimately the deceased was accordingly transferred to the mortuary,” Palime said.

The court heard that Palime’s family was subsequently informed about the wife’s death.

The family however learnt that one doctor, acting in his professional capacity, went to the mortuary the next day and tampered with the corpse.

The doctor subsequently conducted certain tests on the corpse without the knowledge of family members.

Palime said their attempts to get an explanation from the hospital as to the purpose of the tests and the name of the doctor had failed to yield results.

“It remained questionable and therefore incomprehensible as to what actually was the purpose or rationale behind conducting such anonymous and secret tests,” he said.

Palime told the court that the whole thing left him “in an unsettled state of mind for a long time”.

He said his family, which has its traditions and culture rooted in the respect for their departed loved ones, regards and considers Mokhotlong Hospital’s conduct as an unlawful invasion, intrusion and interference with his rituals and rights over his deceased spouse.

“This is more-so because the hospital had all the opportunity to have conducted any or such alleged tests immediately upon demise of the deceased while still within its area of jurisdiction and not after her release to the mortuary,” he said.

Palime said despite incessant demands, the hospital has failed, refused, ignored and neglected to cooperate with him “to amicably solve this unwarranted state of affairs”.

Palime told the court that there were no claims against the Lesotho Funeral Service as they had cooperated and compensated him for wrongly allowing the doctor to perform tests on the corpse without knowledge or presence of one of the family members.

’Malimpho Majoro

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Villagers whipped as police seize guns

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Dozens of villagers in Ha-Rammeleke in Khubelu, Mokhotlong, were on Monday night rounded up and beaten with sticks and whips by the police during an operation to seize illegal guns.

The villagers told thepost that they heard one man crying out for help saying his wife was sick. And when they rushed to his house, they found the police waiting for them.

The police had stormed the man’s house and ordered him to “cry for help” to lure men from the village.

The men and women were then frog-marched outside the village where the police assaulted the men with sticks, whips, and kicked them.

One man said when he arrived at the house, he found other villagers who were now surrounded by armed police.

“At first I thought they were soldiers but later picked up that they were SOU (Special Operations Unit) members,” he said.

He said they were subjected to severe torture.

“They beat us with sticks at the same time demanding guns from us,” he said.

The police and soldiers also raided other nearby villages in Khubelu area but in Ha-Rammeleke villagers say they identified only police from the Special Operations Unit (SOU).

Several villagers who spoke to thepost asked for anonymity for fear of retribution.

This was the second time within a month that the security forces have raided the villages in search of illegal guns after a spate of gory murders in the areas.

The murders are perpetrated by famo music gangs who are fighting over illegal gold mining in South Africa.

The first raid was on Wednesday preceding Good Friday.

Villagers say a group of armed soldiers stormed the place in the wee hours collecting almost every one to the chief’s place.

“We were woken-up by young soldiers who drove us to the chief’s place,” one resident of Ha-Rammeleke said.

When they arrived at the chief’s home all hell broke loose.

A woman told thepost that they were split into two groups of women and men.

Later, women were further split into two groups of the elderly and younger ones.

She said the security officers assaulted the men while ordering the elderly women to ululate.

Young women were ordered to run around the place like they were exercising.

She said the men were pushed into a small hut where they were subjected to further torture.

A man who was among the victims said the army said they should produce the guns and help them identify the illegal miners.

He said this happened after one man in their village was fatally shot by five unknown men in broad daylight.

He said the men who killed the fellow villager had their faces covered with balaclavas and they could not see who they were.

 

The villagers chased them but they could not get close to them because they were armed with guns.

“We were armed with stones while those men were armed with guns,” he said.

“They fired a volley of bullets at us and we retreated,” he said.

The murdered man was later collected by the police.

The army spokesman, Lieutenant Colonel Sakeng Lekola, confirmed that soldiers stormed Khubelu area in response to the rampant lawlessness of unlicensed guns.

Lt Col Lekola said their presence in the area followed two incidents of shootings where one man was fatally shot and a child sustained serious gunshot wounds.

“There were reports everywhere, even on the radios, that things were out of hand in Khubelu,” he said.

He said in just a day they managed to collect six guns that were in wrong hands together with more than 100 rounds (bullets) in an operation dubbed Deuteronomy 17.

These bullets included 23 rounds of Galil rifle.

Lt Col Lekola maintained that their operation was successful because they managed to collect guns from wrong hands.

He said they are doing this in line with the African Union principle of ‘silencing the guns’.

He said it is an undeniable fact that statistics of people killed with guns is disturbing.

“We appeal to these people to produce these unlicensed guns,” Lt Col Lekola said.

Lt Col Lekola said they could not just watch Basotho helplessly as they suffered.

He said some people are seen just flaunting their guns.

“They fear no one,” he said.

Police spokesman, Senior Superintendent Kabelo Halahala, said he was aware of the operation in Mokhotlong but did not have further details.

Majara Molupe

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Magistrate saves WILSA boss

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A Maseru magistrate, Nthabiseng Moopisa, this week stayed the criminal prosecution of Advocate ’Mamosa Mohlabula who is accused of tax evasion, money laundering and corruption.

In her application Advocate Mohlabula, who is the director of Women and Law in Southern Africa (WILSA), said the Director of Public Prosecution (DPP) should not charge her pending finalisation of her tax evasion case.

Advocate Mohlabula is out on bail after she was formally charged with tax evasion in July last year.

She told Magistrate Moopisa that the DPP, Advocate Hlalefang Motinyane, was wrong to have agreed with the Director General of the Directorate on Corruption and Economic Offences (DCEO) to bring charges against her.

“In my viewpoint, the DCEO cannot be heard to charge me in relation to matters already seized with this Honourable Court,” she said in an affidavit.

She also said there is a pending civil case in the High Court in which the DCEO’s abuse of power is referenced, saying the precise way the case is handled will depend “on the way an alleged offence comes to the light”.

“Before that pending case is finalised, DCEO has no jurisdiction to detail me to court over isolated phenomenon of tax evasion and or over grievances of former employees of WILSA,” she said.

Advocate Mohlabula was charged together with the WILSA’s chief accounting officer.

She argued that it was WILSA that was being investigated, not individuals, further saying that was “a significant safeguard that the DCEO was impartial from an objective viewpoint”.

“To exclude any legitimate doubt in this respect the DCEO returned the items it seized from WILSA,” she said.

“This was a realistic and practical step towards administering justice and to avoid premature embarrassment to the management of WILSA.”

She said the Board of Trustees of WILSA were sent briefing notes which in certain respects reflected that the DCEO returned the properties of WILSA without warning them that they were suspects.

“In any event, we proceeded to fashion our arguments before the High Court. There was, and could be, no evidence to back up the decision of the DCEO to apply for the search warrant,” she said.

Advocate Mohlabula said before they took the matter to the High Court, she cooperated with the DCEO and it conducted an inquiry into the alleged crimes.

“Now that the matter is pending before the High Court, there is no more reason for the DCEO to remand me before the pending cases are finalised,” she said.

Staff Reporter

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