Set­back for Mets­ing

Deputy Prime Min­is­ter loses court bid to stop cor­rup­tion in­ves­ti­ga­tion

Lesotho Times - - Front Page - Tefo Tefo

DEPUTY Prime min­is­ter mo­thetjoa mets­ing yes­ter­day lost a court bid to block the Di­rec­torate on Cor­rup­tion and eco­nomic of­fences (Dceo) from in­ves­ti­gat­ing him for pos­si­ble cor­rup­tion.

The Le­sotho Congress for Democ­racy (LCD) leader lodged a case be­fore the Con­sti­tu­tional Court in Au­gust last year seek­ing an or­der declar­ing the Dceo’s ac­qui­si­tion of his fi­nan­cial trans­ac­tions from Stan­dard Le­sotho Bank and Ned­bank Le­sotho un­con­sti­tu­tional.

How­ever, a panel of three South African judges — Ge­orge maluleke, John ‘ musi and Sulet Pot­teril — dis­missed the ap­pli­ca­tion and said the anti-cor­rup­tion agency acted within the pa­ram­e­ters of the law.

The much-an­tic­i­pated judg­ment writ­ten by Jus­tice ‘ musi, stated that although mr mets­ing had lost the case, he would not pay the costs of the suit.

“It is clear the Ap­pli­cant ( mr mets­ing) pros­e­cuted a con­sti­tu­tional point in or­der to pro­tect his con­sti­tu­tional rights.

“In my view, no cost or­der should be made,” noted the rul­ing, which was read in the court by Chief Jus­tice Nthomeng ma­jara.

“I, there­fore, make the fol­low­ing or­der: The ap­pli­ca­tion is dis­missed with no or­der as to costs.”

The judg­ment also gave a de­tailed back­ground of the case, not­ing: “Be­tween oc­to­ber and Novem­ber 2013, the Sec­ond re­spon­dent (Dceo) re­ceived in­for­ma­tion from a whistle­blower to the ef­fect that a com­pany called Big Bravo Con­struc­tion (PTY) Ltd was un­de­servedly and il­le­gally awarded a ten­der to con­struct roads in Ha-matala and Ha-leqele vil­lages.

“It was fur­ther al­leged the Ap­pli­cant, who at the rel­e­vant time was min­is­ter of Lo­cal Gov­ern­ment and Chief­tain­ship Af­fairs, re­ceived bribes from the com­pany in or­der to award the ten­der to it,” read the judg­ment.

“Based on that in­for­ma­tion, the Sec­ond re­spon­dent com­menced a dis­creet and con­fi­den­tial in­ves­ti­ga­tion. The in­ves­ti­ga­tion re­vealed that the Ap­pli­cant ap­pointed the Deputy Prin­ci­pal Sec­re­tary ( mr Ntai makoetje) as his del­e­gate on the eval­u­a­tion and ad­ju­di­ca­tion panel, which as­sessed the ten­ders.

“It fur­ther re­vealed that the ini­tial eval­u­a­tion re­port had been re­vised to favour the com­pany.”

Fol­low­ing this probe, the Dceo wrote to Stan­dard Le­sotho Bank, Ned­bank Le­sotho and First Na- tional Bank (FNB) Le­sotho on 11 Fe­bru­ary 2014 seek­ing mr mets­ing’s bank­ing de­tails, the judges noted.

The Dceo cited the Pre­ven­tion of Cor­rup­tion and eco­nomic of­fences Act of 1999 in their re­quest for this in­for­ma­tion.

How­ever, only Stan­dard Le­sotho Bank and Ned­bank Le­sotho com­plied with the re­quest and pro­vided the de­tails on 18 Fe­bru­ary 2014, the judges fur­ther high­lighted.

“The Stan­dard Le­sotho Bank state­ment re­vealed that var­i­ous unattributed cash de­posits to­tal­ing m328 000 were made into the Ap­pli­cant’s bank ac­count.

“The Ap­pli­cant’s ac­count held at Ned­bank Le­sotho also re­vealed that nu­mer­ous unattributed case de­posits to the amount of m118 000 were made into the ac­count.”

Af­ter ob­tain­ing the de­tails, the Dceo Direc­tor Gen­eral wrote to mr mets­ing on 9 July 2014, ask­ing him to ex­plain the source of the funds within seven days, the judg­ment fur­ther high­lighted, adding the deputy pre­mier had sub­se­quently re­quested 28 days to con­sider the re­quest.

The Dceo had given him 11 Au­gust 2014 as the dead­line for sub­mit­ting the in­for­ma­tion, lead­ing to the Con­sti­tu­tional Court case.

The judges also noted the Dceo then “as­cer­tained that fur­ther un­ex­plained de­posits were made into the First Na­tional Bank Plat­inum ac­count of the ap­pli­cant, amount­ing to m524 964. 86.”

In dis­miss­ing mr mets­ing’s claim that the Pre­ven­tion of Cor­rup­tion and eco­nomic of­fences Act is un­con­sti­tu­tional, the judges noted the leg­is­la­tion was en­acted for a good cause.

“The Act, which es­tab­lishes the Sec­ond re­spon­dent (Dceo) was pro­mul­gated to make pro­vi­sion for the pre­ven­tion of cor­rup­tion and con­fer power on the Sec­ond re­spon­dent to in­ves­ti­gate sus­pected cases of cor­rup­tion and eco­nomic crime and mat­ters con­nected there­with or in­ci­den­tal thereto,” the judges ruled.

The judg­ment also quoted for­mer United Na­tions Sec­re­tary Gen­eral Kofi Annan’s state­ment that cor­rup­tion is “an in­sid­i­ous plague with a wide range of cor­ro­sive ef­fects on so­ci­eties”.

Said mr Annan: “It un­der­mines democ­racy and the rule of law, leads to vi­o­la­tions of hu­man rights, dis­torts mar­kets, erodes the equal­ity of life and al­lows or­gan­ised crime, ter­ror­ism and other threats to hu­man se­cu­rity to flour­ish.”

The judges then said Le­sotho “is also not im­mune to the dan­gers that cor­rup­tion poses to democ­racy, the rule of law and the so­cioe­co­nomic up-lift­ment of cit­i­zens.

“In an at­tempt to ad­dress the per­va­sive­ness of cor­rup­tion and ar­rest its spread, the Act was pro­mul­gated.

“In or­der to per­form the func­tions of the Sec­ond re­spon­dent (Dceo), the First re­spon­dent (Dceo Direc­tor Gen­eral) is given the power to in­ves­ti­gate al­leged or sus­pected of­fences and to re­quire per­sons to give in­for­ma­tion or pro­vide doc­u­ments.”

The court also dis­missed mr mets­ing’s ar­gu­ment that he was al­ready be­ing treated as a sus­pect in the in­ves­ti­ga­tion.

“The in­ves­ti­ga­tion is con­ducted in or­der to as­cer­tain whether an of­fence has been com­mit­ted. The in­quiry or in­ves­ti­ga­tion is done in a dis­creet and pro­fes­sional man­ner in or­der to pro­tect the in­ter­est and in­tegrity of the per­son re­quested to give in­for­ma­tion.

“Clearly, this is only an in­for­ma­tion-gath­er­ing pro­ce­dure as the per­son who is re­quired to an­swer ques­tions or give in­for­ma­tion is not nec­es­sar­ily the sub­ject of a crim­i­nal in­ves­ti­ga­tion.”

The court also said, although mr mets­ing’s right to pri­vacy was vi­o­lated, the ques­tion was whether it was a “jus­ti­fi­able in­fringe­ment”.

“Cor­rup­tion is a scourge that must be in­ves­ti­gated and pros­e­cuted at all costs.

“Sec­tions 7 and 8 of the Act were en­acted to fa­cil­i­tate the proper and ef­fec­tive in­ves­ti­ga­tion of cor­rup­tion and other se­ri­ous eco­nomic crimes.

“It is in the in­ter­est of public or­der and, to some ex­tent, public safety that crimes such as cor­rup­tion should be in­ves­ti­gated by a spe­cialised unit that can do so pro­fes­sion­ally, in­de­pen­dently and ex­pe­di­tiously so that such crimes are pre­vented or un­cov­ered and where there is suf­fi­cient ev­i­dence, pros­e­cuted.

“This is a le­git­i­mate gov­ern­ment pur­pose. It would be very dif­fi­cult to in­ves­ti­gate and pros­e­cute cor­rup­tion if the in­ves­ti­ga­tory author­ity does not have ac­cess to bank records of the per­sons who might be im­pli­cated in the in­ves­ti­ga­tion or could give in­for­ma­tion re­lat­ing to the in­ves­ti­ga­tion.

“The right to pri­vacy is min­i­mally im­paired by the First (Dceo’s Direc­tor Gen­eral) and Sec­ond (Dceo) re­spon­dents. They had ac­cess to the bank state­ments in or­der to per­form their func­tions as laid down in the Act.

“The pro­cure­ment and dis­clo­sure of the bank state­ments were ra­tio­nally con­nected to the ob­jec­tive of se­ri­ous crime. There are leg­isla­tive safe­guards to en­sure the right to pri­vacy is im­paired as lit­tle as pos­si­ble and that the in­for­ma­tion so ob­tained should be used only to ful­fil the stated ob­jec­tives of the Sec­ond re­spon­dent.”

“The First and Sec­ond re­spon­dents’ ac­tions were not un­con­sti­tu­tional,” read the judg­ment, adding the three banks were com­pelled by law to re­lease Mr Mets­ing’s fi­nan­cial trans­ac­tions.

“There was no duty on them (the banks) to re­quest per­mis­sion from the Ap­pli­cant or to in­form him of the re­quest be­fore they gave the state­ments to the Sec­ond re­spon­dent.”

How­ever, the lawyer rep­re­sent­ing mr mets­ing, King’s Coun­sel motiea Teele, yes­ter­day told the Le­sotho Times he was ap­peal­ing against the judg­ment.

“We are def­i­nitely ap­peal­ing this rul­ing,” he briefly said.

DEPUTY Prime min­is­ter mo­thetjoa mets­ing

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