At­tor­ney gen­eral loses King’s law­suit

Lesotho Times - - News - Tefo Tefo

At­tor­ney Gen­eral (AG) tšokolo Makhethe on tues­day lost a case in which he wanted the Con­sti­tu­tional Court to nul­lify the ap­point­ment of Jus­tice Kananelo Mos­ito as Pres­i­dent of the Court of Ap­peal.

Ad­vo­cate Makhethe had ar­gued Prime Min­is­ter thomas tha­bane did not have the author­ity to uni­lat­er­ally ad­vise King Let­sie III to make the nom­i­na­tion.

Ac­cord­ing to the AG’S court pa­pers, only cabi­net had the pow­ers to make such rec­om­men­da­tion hence his law­suit re­quest­ing the 15 Jan­uary 2015 ap­point­ment to be nul­li­fied.

King Let­sie III, Dr tha­bane, Law, Con­sti­tu­tional Af­fairs and Hu­man rights min­is­ter Haae Phoofolo, Jus­tice and Cor­rec­tional Ser­vices min­is­ter Mot­lohi Maliehe and Jus­tice Mos­ito were cited as First to Fifth re­spon­dent re­spec­tively in the court pa­pers the AG filed on 12 Fe­bru­ary 2015 on an ur­gent ba­sis.

How­ever, the three pre­sid­ing judges from South Africa — John ‘Musi, Sulet Pot­ter­ill and ram­maka Mathopo — dis­missed the law­suit on the ba­sis that Ad­vo­cate Makhethe does not have the author­ity or lo­cus standi to sue the re­spon­dents as he is their legal ad­vi­sor.

the judg­ment, which was read in court by Chief Jus­tice nthomeng Ma­jara, started by giv­ing con­text to the “un­prece­dented” case.

“the mat­ter is cer­tainly un­prece­dented in that the At­tor­ney Gen­eral is lit­i­gat­ing against the Con­sti­tu­tional monarch, the King, and gov­ern­ment.

“It was brought amidst a loom­ing gen­eral elec­tion (of 28 Fe­bru­ary 2015) elec­tri­fied with po­lit­i­cal ten­sion.

“the Court of Ap­peal, though not the court of first in­stance, would be the fo­rum that is ul­ti­mately tasked with hear­ing any ur­gent elec­toral dis­putes and the mat­ter thus begs speedy ad­ju­di­ca­tion.

“the rec­om­men­da­tion of the Fifth re­spon­dent (Jus­tice Mos­ito) as the Pres­i­dent of the Court of Ap­peal, was ru­moured in De­cem­ber 2014.“Pursuant thereto, a public state­ment was is­sued by con­cerned legal prac­ti­tion­ers of Le­sotho.

“In the state­ment, they high­lighted the fact that the em­i­nent ap­point­ment was hur­riedly made dur­ing a tran­si­tional pe­riod of gov­ern­ment fol­low­ing the pro­ro­ga­tion of par­lia­ment.”

the judg­ment also high­lights steps fol­lowed by the prime min­is­ter in en­sur­ing due process was fol­lowed in Jus­tice Mos­ito’s ap­point­ment as head of Le­sotho’s apex court.

“the At­tor­ney Gen­eral had to pre­pare the nec­es­sary in­stru­ments for pub­li­ca­tion in the Gov­ern­ment Gazette and en­sure it was duly pub­lished.

“on 1 De­cem­ber 2014, the Sec­ond re­spon­dent (Dr Tha­bane) re­quested the Of­fice of the At­tor­ney Gen­eral to pre­pare the nec­es­sary in­stru­ments.’’

the Fifth re­spon­dent (Jus­tice Mos­ito) was ap­pointed as the Pres­i­dent of the Court of Ap­peal on 15 Jan­uary 2015 by His Majesty the King in terms of Sec­tion 124 (1) of the Con­sti­tu­tion.

“the King ap­pointed the Fifth re­spon­dent on the ad­vice of the Sec­ond re­spon­dent in terms of Sec­tion 124 (1).“the Fifth re­spon­dent’s swear­ing-in cer­e­mony was held on the 27th of Jan­uary 2015.”

How­ever, the rul­ing notes the At­tor­ney Gen­eral wrote a let­ter to the Prime Min­is­ter on 26 Jan­uary re­quest­ing the swear­ing-in to be stopped “un­til the mat­ter had been thor­oughly dis­cussed by their re­spec­tive of­fices and all par­ties con­cerned”.

But the prime min­is­ter, the judg­ment fur­ther out­lines, de­nied re­ceiv­ing such a let­ter.

the judges also crit­i­cised the At­tor­ney Gen­eral for in­sti­tut­ing the law­suit un­der the pre­text of pro­tect­ing the in­ter­ests of the coun­try’s legal pro­fes­sion.

“that is the func­tion of the Law So­ci­ety of Le­sotho and not the At­tor­ney Gen­eral,” the judges ob­served. dis­miss­ing the ap­pli­ca­tion, the judges said: “on the facts, the At­tor­ney Gen­eral brought this ap­pli­ca­tion based on his in­ter­pre­ta­tion of what would be good or best prac­tice for the ap­point­ment of the Pres­i­dent of the Court of Ap­peal.

“How­ever, the Con­sti­tu­tion does not au­tho­rise him to pro­tect or up­hold good prac­tices. “ef­fec­tively, he is lit­i­gat­ing against his own client be­cause the client did not seek his ad­vice.

”the court also dis­missed the AG’S claim that Dr tha­bane did not con­sult cabi­net be­fore ad­vis­ing the King about Dr Mos­ito’s ap­point­ment.

the court up­held the pre­mier’s ver­sion that the mat­ter was dis­cussed in a cabi­net meet­ing both the At­tor­ney Gen­eral and Deputy Prime Min­is­ter Mo­thetjoa Mets­ing did not at­tend.

the AG and Mr Mets­ing had al­leged there was never such a meet­ing to dis­cuss the is­sue.the judg­ment notes: “the ap­pli­cant al- leged that the is­sue was never dis­cussed by cabi­net.

the pe­riod within which this is­sue could have been dis­cussed is very short. “the an­swer of the prime min­is­ter is that the is­sue was dis­cussed at a meet­ing which the ap­pli­cant did not at­tend.

the ap­pli­cant failed to at­tach any of the min­utes cov­er­ing the rel­e­vant pe­riod.

“Although he al­leged that it would be im­prac­ti­ca­ble and bur­den­some to at­tach all the min­utes of the cabi­net meet­ings in his pos­ses­sion, he did not make any or all of the rel­e­vant min­utes avail­able for pe­rusal.

“It is un­for­tu­nate that the prime min­is­ter did not state the date of the cabi­net meet­ing at which this is­sue was dis­cussed but, as we have said above, this is­sue must be re­solved in his favour, ir­re­spec­tive of the omis­sion.

“We find that the is­sue was prob­a­bly dis­cussed at a cabi­net meet­ing.”

the court also ad­vised that the “terms and con­di­tions of the Fifth re­spon­dent’s ap­point­ment is a mat­ter that should be given at­ten­tion by the pow­ers-that-be in or­der to avoid fu­ture lit­i­ga­tion or con­flict-of-in­ter­est chal­lenges.

”How­ever, the court did not im­pose any costs of the suit against the At­tor­ney Gen­eral af­ter con­sid­er­ing that “he had no re­gard for the con­se­quences of his ac­tion be­cause he gen­uinely, al­beit mis­tak­enly, be­lieved that he was do­ing the right thing.

“We are con­vinced that he should not be mulcted with the costs of this ap­pli­ca­tion.

He raised im­por­tant con­sti­tu­tional is­sues. “the ap­pli­ca­tion is dis­missed with no or­der as to costs.” mean­while, when judg­ment was passed on tues­day, hun­dreds of or­di­nary Ba­sotho who had thronged the High Court premises when the case was ar­gued two weeks ago, were not present this time around.

Be­cause of the huge crowd at the ini­tial hear­ing, the trial was tele­vised out­side the court­room for the au­di­ence that could not be ac­com­mo­dated in the court­room, to fol­low the pro­ceed­ings live.

And af­ter the judg­ment was read in court this week, Min­is­ter Phoofolo held his hands high in tri­umph, while fac­ing the public gallery. mokhot­long Prin­ci­pal Chief Mathealira Seeiso was also present in court when judg­ment was de­liv­ered.

For­mer Court of Ap­peal judge, Jus­tice Jeremy Gauntlett of South Africa rep­re­sented the re­spon­dents in the case, while King’s Coun­sel (KC) Motiea teele ap­peared for the AG.

Ap­peal Court pres­i­dent Kananelo Mos­ito KC

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