D-day for Thet­sane

Lesotho Times - - News - Tefo Tefo

THE Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP), Leaba Thet­sane (King’s Coun­sel), will know his fate to­day re­gard­ing his re­tire­ment age when the Court of Ap­peal de­liv­ers judg­ment on the is­sue.

Ad­vo­cate Thet­sane ap­pealed against a Con­sti­tu­tional Court judg­ment which ruled he should re­tire at the age of 55 years.

The Court of Ap­peal re­served judg­ment on the is­sue on 20 Oc­to­ber 2014 after hear­ing ar­gu­ments from Ad­vo­cate Thet­sane’s lawyer, Motiea Teele and gov­ern­ment’s le­gal rep­re­sen­ta­tive, Kananelo Mos­ito, on the is­sue.

How­ever, the Court of Ap­peal this week in­di­cated judg­ment would be de­liv­ered to­day on the case.

Ac­cord­ing to Ad­vo­cate Teele (KC), the Con­sti­tu­tional Court erred in rul­ing Ad­vo­cate Thet­sane’s re­tire­ment age should be 55 years as per the coun­try’s con­sti­tu­tion, and not 60 as stip­u­lated by the Pub­lic Ser­vice Act of 2005.

The court made the rul­ing on the grounds that although he is a pub­lic of­fi­cer, the DPP is not gov­erned by the Pub­lic Ser­vice Act of 2005, but the con­sti­tu­tion of Le­sotho.

How­ever, the Con­sti­tu­tional Court’s judg­ment did not sit well with Ad­vo­cate Thet­sane (56), who then lodged a case be­fore the Court of Ap­peal.

Ad­vo­cate Thet­sane’s lawyer, Ad­vo­cate Teele, told the court that the Pub­lic Ser­vice Act of 2005 ap­plied to his client as he is a pub­lic of­fi­cer as de­fined by that par­tic­u­lar law.

Ad­vo­cate Teele added when the Act came into force, it pro­vided that all pub­lic of­fi­cers who were al­ready em­ployed had the right to choose whether they wanted to re­tire at 55 or 60 years of age.

The Con­sti­tu­tional Court, he added, mis­in­ter­preted the con­sti­tu­tion when it said par­lia­ment should have made a spe­cific law for Advo- cate Thet­sane to change his re­tire­ment age.

“The court says an Act should be made for a spe­cific per­son, but I sub­mit this can­not be the cor­rect po­si­tion.

“The mere fact that the re­tire­ment age of the DPP is con­tained in the con­sti­tu­tion does not mean the Pub­lic Ser­vice Act is not ap­pli­ca­ble to him,” he said.

The Pub­lic Ser­vice Act, Ad­vo­cate Teele fur­ther said, pro­vides that an of­fi­cer could elect if he or she wishes to re­tire at the age of 60 years as may be pre­scribed by the Min­is­ter of Pub­lic Ser­vice.

How­ever, Ad­vo­cate Teele added: “Fail­ure of the min­is­ter to make pre­scrip­tion did not pre­vent the ap­pel­lant (Thet­sane) from mak­ing the elec­tion.

“He made the elec­tion and it was noted by the Prin­ci­pal Sec­re­tary.”

On the other hand, Ad­vo­cate Mos­ito, for the gov­ern­ment, said the Con­sti­tu­tional Court was cor­rect in hold­ing that Ad­vo­cate Thet­sane’s re­tire­ment age should be 55 years as stip­u­lated by the con­sti­tu­tion.

The Pub­lic Ser­vice Act, he added, was only ap­pli­ca­ble to Ad­vo­cate Thet­sane re­gard­ing his ap­point­ment as the DPP.

“Ex­cept in relation to his ap­point­ment, the Act does not ap­ply to him.

“Our sub­mis­sion is that the sec­tion (of the con­sti­tu­tion that deals with the law to al­ter­nate the DPP’S re­tire­ment age) is couched in manda­tory terms. It specif­i­cally says the min­is­ter shall make pre­scrip­tion for the elec­tion. If the min­is­ter does not pre­scribe, noth­ing should be done. In­stead, the ap­pel­lant (DPP) should have ap­proached the court of law for an or­der di­rect­ing the min­is­ter to do his job,” he said.

The rul­ing will serve as a land­mark judg­ment as Ad­vo­cate Thet­sane’s case is sim­i­lar to At­tor­ney Gen­eral Tšokolo Makhethe’s case, which is still pend­ing in

the High Court.

DPP Leaba Thet­sane

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