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Thabane pushes Mosito ouster

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MASERU-PRIME Minister Thomas Thabane is piling pressure on the King to oust Court of Appeal President Justice Kananelo Mosito.
This is despite that there are several court orders blocking attempts to suspend and impeach Justice Mosito.
An exclusive investigation by thepost has revealed that Thabane had been trying to nudge the King to accept his advice to oust Justice Mosito.

Although Thabane has been on that mission for several months investigations have revealed that he has intensified his efforts in recent months.
Highly placed sources said Attorney General (AG) Haae Phoofolo was recently pushed to give a legal opinion that says the King can go ahead to suspend and bring impeachment proceedings against the judge despite court orders to the contrary.

Sources close to the matter told thepost that Advocate Phoofolo finally succumbed to pressure three weeks ago and submitted that opinion to the King.
A source said the King asked Advocate Phoofolo why he was recommending that he violates the orders.
The King is also said to have asked the AG why his opinion is the opposite of the one he gave earlier this year when he said it was wrong to remove Justice Mosito.
The source said the King also asked him if he was sure what he was recommending would stand the test of the constitution and Advocate Phoofolo apologised but insisted that he stood by his opinion.

The King then told him that he wanted a second legal opinion before making the decision.
Phoofolo sought that legal opinion from Advocate Burger, a senior counsel based in Bloemfontein.
Several sources have told this paper that Advocate Burger’s opinion was that as long as the court orders remain in force it was impossible to suspend and impeach Justice Mosito.
That opinion was submitted to Advocate Phoofolo.

“He told the King that it would be contempt of court to proceed against Justice Mosito when there are court orders blocking such action,” said one of the sources with impeccable knowledge on the issue.

“There were attempts to hide that legal opinion but the King eventually got it.”
Phoofolo and Thabane have now gone back to the King to insist that they still want Justice Mosito out despite Advocate Burger’s legal opinion and the court orders.
They are alleged to have also told the King that there are already three judges who have agreed to be on the impeachment tribunal.

“The King has however told them (Phoofolo and Thabane) he wanted Advocate Burger to come to Lesotho to make a presentation on his legal opinion,” said the source.
“He has also said he wants to see letters from each of the judges consenting to being on the tribunal. The King is reluctant to make such a move”.
The Prime Minister’s official reasons for trying to impeach Justice Mosito is that he has violated court procedures and refused to relinquish his position as an academic at the National University of Lesotho (NUL).

The allegation that Justice Mosito violated rules welled from Acting Chief Justice ’Maseforo Mahase’s complaint to the Prime Minister.
In a stinging letter Justice Mahase accused Justice Mosito of hearing cases involving the All Basotho Convention (ABC) cases before they are finalised by the High Court. She also said Justice Mosito was now in the habit of jumping the gun to hear cases without approval from the High Court.
But some observers have noted that Thabane had seized on that complaint and the NUL issue to get back at Justice Mosito for ruling against him in his battle for the ABC against Professor Nqosa Mahao and his camp.

So far the Court of Appeal has overturned all judgements the High Court has granted in Thabane’s favour.
Sources this week told thepost the renewed efforts to push out Justice Mosito are linked to yet another ABC case that is before Justice Tšeliso Monapathi.
Earlier this year Justice Monapathi made an interim order that Thabane, as the ABC leader, cannot suspend Professor Mahao and his allies from the party without consulting them as the new national executive committee.

Justice Monapathi is expected to make a final order next Friday.
“They seem to be racing against time because that judgement will put an end to the leadership battles in the party. Whatever the decision, they wouldn’t want to face Justice Mosito in the Court of

Appeal,” said a source.
There is also the issue of Justice Mahase’s trouble with a lawsuit that seeks an order to compel Thabane to bring impeachment proceedings against her for suspected bias and allegedly instigating the Prime Minister to oust Justice Mosito.

“It would appear that the plan is to kick out Justice Mosito in order to be in control of the Court of Appeal when the ABC’s case and that of Justice Mahase come,” the source said.
But to remove Justice Mosito, Thabane has to convince the King but that may not be an easy task, especially in light of the court orders.
Last night thepost heard that there were some in government who are pushing Thabane to plod on without the King’s approval. Their idea is that Thabane can use a constitutional clause that says if the King does not take the Prime Minister’s advice the Prime Minister can still go ahead with the decision.
In such a situation, the King would still be considered to have consented to the Prime Minister’s advice.

But legal experts say that would be politically risky for Thabane.
“He cannot be seen to have sidestepped the King’s authority and it will create a constitutional crisis. It will give the impression that the head of State and the head of government are not agreeing,” said a lawyer who has been following the matter.

Staff Reporter

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City Council bosses up for fraud

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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

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Scott fights for free lawyer

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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

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Army ordered to pay up

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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

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