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When justice fails one of its own

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MASERU – IT could be genuine amnesia or for practical purposes that staff at the High Court call Lesitsi Mokeke registrar.
When a person has been acting in a position for more than five years it is easy to forget they don’t own the position. When they have acted for that long it becomes almost pointless to pretend that they are a mere placeholder.

It’s natural that when you have stayed long in a place or position people begin to think you belong.
Mokeke has been doing the registrar’s job for half a decade. And so in dimly lit corridors at the High Court and newspaper stories Mokeke now owns the title.
What has rescinded in the minds of many is that the position belongs to ‘Mathato Sekoai, the advocate hounded out of that office in February 2012 by interested groups motivated by a mishmash of agendas.

Some 65 months since her exit from the Palace of Justice, Sekoai awaits the powers-that-be to make a decision that will free her from her long limbo.
A lot might have happened since 2012 but two things remain constant: she was not fired and there was never a time she stood before a disciplinary panel.
Sekoai narrates her story with the calmness unbefitting of someone who has been treated unfairly and whose career has been put on ice.
“It’s so painful,” she says. In 2012, when the drama in which she was a reluctant main actor reached the crescendo, her oldest daughter was in Grade 6.
Now that child is in Grade 11. “She watched all this chaos. She knows the story and it traumatised her.”

Her husband, whom she describes as her pillar of strength, had to put his projects on hold to help her through the fiasco.
“There were days when he wasn’t sure that he would find me alive if he left my side for just an hour,” Sekoai recalls.
Yet even as the system has failed to give her job back, her salary has never stopped coming.

In December last year she was stunned to receive a call from the High Court’s human resource office. The caller was asking her to confirm her banking details.
The caller said her salary had just been reviewed and she was supposed to get some backpay from as far back as 2011. The High Court was complying with the Administration of Judiciary Act (2011) which says the registrar is the chief accounting officer of the judiciary. The law had been dormant until acting registrar Mokeke activated some of its clauses, especially those dealing with salaries and benefits.

So in December Sekoai earned the salary of a principal secretary and in March this year she got the backpay for the past six years.
But that her troubles have not affected her financially brings her little solace. It’s not about the money, she retorts to a suggestion that she should not whinge too much because her salary has not been stopped.

“My career has been at a standstill for the past five years. I have been frozen out of the legal fraternity for no justifiable reason apart from that some people were fighting their own battles.”
Hired in 2001 as an assistant registrar, Sekoai did not take long to start flying through the ranks. By 2005 she was the acting deputy registrar, a position to which she was confirmed a year later. Two years later she was the registrar of the High Court and Court of Appeal, a rank just one step away from being a High Court judge.
How then did such a highflyer find herself in such a colossal mess that has left her career in a jam and her reputation badly bruised?

It began in November 2010 when nine High Court judges complained about her in a scathing letter to the then Chief Justice Mahapela Lehohla.
Reading like a charge sheet, the letter accused Sekoai of being discourteous, disrespectful, unhelpful and arrogant.
The judges said she had failed to competently manage the budget and had neglected their transport and security needs. Under her leadership, the judges alleged, staff morale at the Palace of Justice had ebbed.
“Absenteeism, truancy, laziness, carelessness and corrupt practices are common,” they said.
“All these sow seeds of mutual distrust and of possibly dividing the entire judiciary into factions.”
The pith and marrow of the letter was that the judges no longer wanted to work with Sekoai. Their solution was as instant as it was emphatic.
“Indeed because of her utter lack of respect to the judges, they have completely lost all faith, trust and confidence in her to an extent that there is a general consensus amongst the judges that her deployment elsewhere will be in the best interests of the general effectiveness of the entire judiciary,” they declared.
In one breath the judges were laying a complaint and suggesting their desired verdict.

In the sentence before that ‘verdict’ the judges had laid what looked like an inescapable trap by insinuating that they knew the chief justice would take Sekoai’s side.
“There also disturbingly exists a clear unbalanced over-protectiveness towards the Registrar vis-à-vis the Judges when her shortcomings are being pointed out and/or challenges especially in meetings and this does not augur well for the Judges’ relations with the Registrar.”
Coming from almost the entire bench, the letter was unprecedented. There had been howls of protest from individual judges in the past but none had the same collectiveness and ferocity as this one.

This was a joint effort by the bench to the registrar out.  Far from asking that the registrar be censured, the judges wanted her removed from the judiciary entirely.
While Sekoai was on her scheduled annual leave the Judicial Service Commission (JSC), which appoints the judicial officers and is chaired by the chief justice, discussed the judges’ letter.
When she returned the chief justice extended her leave, supposedly to allow the JSC to investigate the allegations against her. In the meantime the JSC asked the judges to submit individual statements in preparation for a disciplinary hearing against her.

But despite being given 14 days none of the judges wrote a statement.  Sekoai would return to office in February to a frosty reception from the judges. Again in an unprecedented move, the whole High Court bench refused to hear cases until she is removed. After a two-day impasse the cornered JSC came up with what looked like a compromise that would remove Sekoai as registrar to appease the seething judges while also giving her a soft landing within the judiciary.

In what it termed a “lateral transfer” the JSC moved Sekoai to the position of Chief Magistrate for the South region. She would not suffer loss of income or benefits because at that time the chief magistrate was of the same rank as the registrar.  Yet if the JSC thought this was going to put a lid on the debacle, it had horribly miscalculated. No sooner had Sekoai started her new job than another storm erupted, this time with the magistrates boycotting the court to protest against her appointment.
They were joined by the Law Society of Lesotho, then led by the fiery Advocate Zwelakhe Mda.

With cases stalled and the public bellowing in disgust, the commission beat a retreat. In a letter the commission said Sekoai should not start work as the chief magistrate.
By March 2012 the Minister of Justice, Mpeo Mahase-Moiloa, had entered the fray to quell the fires. Her solution, concocted after a meeting with the chief justice, was to appoint Sekoai as deputy principal secretary in her ministry.

The law society and magistrates rejoiced. “Victory has shown that judicial activism works,” said Manyathela Kolobe, a magistrate who was president of the Judicial Officers Association of Lesotho.
Although happy with the decision Mda hinted that the problems in the judiciary went far beyond Sekoai. “She is only the manifestation of the problem. The problem lies with the management, the chief justice,” he said. The victory speeches were however premature because there was a glitch in the appointment: while at that time deputy principal secretaries and the registrar were in the same rank the Ministry of Justice did not have such a position its structure.

Although inclined to create the position just to deal with the Sekoai issue, the minister never got round to do it. That is probably because some weeks later the then Lesotho Congress for Democracy (LCD) government saw its grip on power trimmed by an electoral defeat that forced it into a coalition as a junior partner.
By January 2013, almost a year since she was pushed out, Sekoai was contemplating taking the legal route.

On January 22 of that year her lawyer Salemane Phafane wrote to the JSC demanding her reinstatement within two weeks. The JSC responded with a short letter through Mokeke who had temporarily replaced Sekoai as the registrar, and by extension, the secretary of the commission.
Mokeke requested that the 14 days Phafane had set should start on February 7, 2013, “which is the date on which Judicial Service Commission (JSC) will be sitting to specifically consider the proposed reinstatement”.

With that letter the JSC had ‘bought’ a further 14 days but Phafane obliged by accepting the request.  Instead of a letter from the JSC as Mokeke had promised Phafane received one from Attorney General, Tšokolo Makhethe, who is also a member of the commission. Makhethe was responding to Phafane’s January 22 letter which although written to the JSC had been copied to him as the government’s lawyer.

“I am certain we can resolve this matter amicably out-of-court,” the AG said, adding that he was requesting “some extended period to find a lasting solution to what turned out to be an administrative impasse.”

He said he was sure the government would have found a solution in a “month or so (say 1½ months)”.
“As it is, immediately following your letter above, moves are afoot to increase the momentum to see this matter reach finality.”
Sekoai’s lawyers wrote to the AG a month letter, reminding him of his promise to solve the issue. Instead of responding to the lawyers Makhethe wrote a memo to acting registrar Mokeke, effectively saying the JSC and government had no chance of winning if Sekoai pushed for her reinstatement through the courts.

The unfair aspect of the transfer, Makhethe said, is that the complaining judges refused to submit statements “to lay bare the misconduct in a disciplinary hearing”.
“Cannot one say, therefore, the primary motivation behind the transfer had no basis?”  He warned that “in the event of some other judiciary-cum-executive administrative solution not being found quickly to take her out of the judiciary, she is entitled (on setting aside of her transfer, which is given) to resume her position as Registrar”.

The AG also thought an application by Sekoai “cannot be seriously opposed”. Apart from the legal opinion the AG also attached a letter whose contents could be said to have been ignored by the JSC. It was written by the Directorate on Corruption and Economic Offences (DCEO) to the chief justice in 2011 at the height of crisis.
The letter referred to corruption allegations the judges had levelled against Sekaoi in their 2010 letter.

“Preliminary investigations were fully made into the matter and found no substance or evidence which may implicate the aforesaid officers to the alleged fraud,” the DCEO said.
A day before dispatching the letter the DCEO had briefed the chief justice about its findings. That meant the corruption allegations against Sekoai, at least those brought to the DCEO’s attention, had fallen flat. Still that letter did not help Sekoai get back her job.
The AG’s warning too did not amount to much.

In August 2013 Sekoai filed a case against the JSC, the Ministry of Justice and the AG. Praying for reinstatement, Sekoai said her transfer was “unlawful, null and void and of no legal force or effect”.  Nearly four years later Sekoai remains in limbo. She spends her days researching law cases to remain in touch with legal trends. She cannot open her own law firm because she is officially employed by the High Court.

“People keep saying I should fight. My answer is that I have fought. There is nothing that I have not done to get back to work,” she says.
“The truth is not as louder as a lie. I keep waiting for justice to prevail. I keep praying.”
“I should not be where I am right now. I could have gone far and achieved a lot if forces had not conspired against me.”
Those forces, she says, are the judges, magistrates and the law society.

“All these groups had their own agenda, some of which I have never understood to this day.”
This week retired chief justice Mahapela Lehohla, who has avoided talking about the Sekoai issue, finally broke his silence this week
He says he doesn’t regret the way he handled the issue because “with time it has become clear that it was an artificial storm”.
“She has not been charged for any wrongdoing and she still earns her salary,” he says.

“I have no doubt in my mind that those fighting her were just jealous of her. Indeed, she is one of the best registrars this country has ever had. Even when I was a registrar I could not manage to do the things she did.”  “I would say she is special. She created new and fruitful relations with international organisations and worked hard to ensure that judges and staff were given international training.”  Justice Lehohla says what is regrettable is the way the judiciary had lost her “excellent service”. This, he says, is seen in the way the individual docket system introduced to help judges manage their rolls and quicken cases has collapsed since she has been away.

Law Society President Tumisang Mosotho is concerned that the High Court and Court of Appeal have had an acting registrar for five years.
“It is unacceptable and goes right to the core of what is wrong with the system,” Mosotho says. “

The courts are supposed to be the place where people get justice when all has failed yet they are treating one of their own in such an unfair way.”
“This just shows you how the system has collapsed.”
Sekoai says her health has suffered.

“I now get seizures when I get emotional. I never used to have that and I trace it to the trauma I have been put through.”
When she was fired the LCD government was on its knees. It would fall a few weeks later to be replaced by a coalition led by the All Basotho Convention (ABC). That government fell too and was replaced by a Democratic Congress led coalition. Now the ABC is back in power through another coalition.
Sekoai is still waiting for a solution.  Is she waiting for Godot? Her answer: “Time will tell”.

Shakeman Mugari

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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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