LDF faces le­gal ac­tion over de­tained sol­diers

Lesotho Times - - News - Tefo Tefo

LAWYERS rep­re­sent­ing sol­diers de­tained in Maseru Max­i­mum Se­cu­rity Pri­son are plan­ning to sue the Le­sotho Defence Force (LDF) for con­tempt of court af­ter the mil­i­tary failed to re­lease the mutiny sus­pects in line with a High Court rul­ing de­liv­ered on Mon­day this week.

High Court judge Jus­tice Molefi Makara or­dered the re­lease of the 22 sol­diers af­ter rul­ing their con­tin­ued de­ten­tion was il­le­gal. The judge said the sol­diers should be placed un­der open ar­rest in­stead be­cause they had over­stayed in de­ten­tion with­out ap­pear­ing be­fore the planned court-mar­tial.

Jus­tice Makara noted a direc­tive is­sued by LDF Chief of Staff Ma­jor-gen­eral Li­neo Poopa on 10 July 2015 ex­tend­ing the sol­diers’ im­pris­on­ment, was un­law­ful.

How­ever, the Le­sotho Times has es­tab­lished the sol­diers were still de­tained at the Maseru Max­i­mum Se­cu­rity Pri­son yes­ter­day, de­spite the judg­ment.

One of the lawyers rep­re­sent­ing the sol­diers, Ad­vo­cate Christo­pher Le­phuthing, yes­ter­day con­firmed the pend­ing le­gal ac­tion, in­sist­ing the sol­diers should be re­leased from cus­tody and placed un­der open-ar­rest.

“They should be placed un­der open-ar­rest. There is no in­ter­pre- tation of this judg­ment other than re­view­ing and set­ting aside the de­ci­sion to de­tain them,” Ad­vo­cate Le­phuthing said.

“I have al­ready re­ceived in­struc­tions from our Se­nior Coun­sel (SC) in South Africa (Ad­vo­cate Anna-marie de Vos SC) to draft pa­pers which we will file in court for con­tempt of court against the LDF.”

Ad­vo­cate Le­phuthing added the pa­pers would be filed be­fore the High Court to­day.

On the other hand, the LDF’S le­gal rep­re­sen­ta­tive, King’s Coun­sel ( KC) Motiea Teele said the judg­ment only gave the de­tainees a chance to be heard be­fore a de­ci­sion is made about their fate.

“We are still wait­ing to see the judg­ment so that we can study it thor­oughly,” Ad­vo­cate Teele said.

“But as the mat­ter stands, we think the judg­ment does not prej­u­dice us be­cause it only gives them a chance to be heard be­fore a de­ci­sion either to place them un­der open ar­rest or close ar­rest can be reached.”

In their ap­pli­ca­tion, the sol­diers wanted the court to un­con­di­tion­ally re­lease them from the high-se­cu­rity pri­son in which they had been in­car­cer­ated since their ar­rest be­tween May and June this year for al­legedly plan­ning to mutiny and top­ple the LDF com­mand. In ad­di­tion, the sol­diers wanted the High Court to stop court-mar­tial pro­ceed­ings against them for the al­leged re­bel­lion. The de­tainees had fur­ther urged the High Court to set aside the defence min­is­ter’s or­der, which es­tab­lished the mil­i­tary court.

A to­tal of 23 LDF mem­bers are fac­ing the mutiny charges, in­clud­ing Bri­gadier Thoso Mareka, who was re­leased from the pri­son due to ill-health.

How­ever, Colonel Mareka has since been placed un­der open ar­rest.

In his rul­ing, Jus­tice Makara re­fused all the sol­diers’ prayers ex­cept the one seek­ing their re­lease from de­ten­tion.

Jus­tice Makara noted in his rul­ing: “It is not re­flected in court pa­pers that Ma­jor-gen­eral Poopa ap­plied his mind on the per­sonal cir­cum­stances of each de­tainee to de­ter­mine if a par­tic­u­lar de­tainee should be placed un­der close or open ar­rest.

“There is skep­ti­cism that Ma­jor-gen­eral Poopa has in­deed ex­cised his pow­ers un­der Reg­u­la­tion 9 of the Defence Force (Dis­ci­pline) Reg­u­la­tions of 1998.

“It is only af­ter the ap­pli­cants have been heard that dis­cre­tionary ac­tion un­der Reg­u­la­tion 9 could be made by in­form­ing each ac­cused if he could be placed un­der open or close ar­rest.”

The judge said Ma­jor-gen­eral Poopa should have given the de­tainees a hear­ing be­fore de­cid­ing to place them in de­ten­tion.

“Re­sul­tantly, Prayer 17, which is re­view­ing and set­ting aside the de­ci­sion plac­ing the ap­pli­cants un­der close ar­rest as ir­reg­u­lar and of no le­gal force, suc­ceeds,” the judge ruled.

On the es­tab­lish­ment of the court-mar­tial, Jus­tice Makara said Defence Min­is­ter Tšeliso Mokhosi acted within the law when he con­vened it.

“It is in­ci­den­tally found that there is no merit in the ar­gu­ment that the sec­ond re­spon­dent ( Mr Mokhosi) did not have ju­ris­dic­tional facts in is­su­ing the in­stru­ment con­ven­ing the court-mar­tial, pend­ing the out­come of the SADC Com­mis­sion of In­quiry.

“There were ju­ris­dic­tional facts for him to es­tab­lish the court-mar­tial re­ly­ing on in­for­ma­tion given to him that some peo­ple had risen against author­ity and he was en­joined by the law to do so.

“He would have ne­glected his duty if he had not done so. The court-mar­tial should pro­ceed as sched­uled,” Jus­tice Makara ruled.

The South­ern African De­vel­op­ment Com­mu­nity (SADC) Com­mis­sion of In­quiry is cur­rently prob­ing the al­leged mutiny, as well as the death of former LDF com­man­der Maa­parankoe Ma­hao, among other se­cu­rity-re­lated chal­lenges plagu- ing Le­sotho.

Lieu­tenant-gen­eral Ma­hao was gunned down by LDF mem­bers on 25 June 2015 just out­side Maseru, al­legedly as he re­sisted ar­rest for be­ing the master­mind of the mutiny.

Mean­while, the sol­diers whose re­lease was or­dered by the High Court are Bri­gadier Mo­toa, Colonel Ste­mere, Colonel Kolisang, Ma­jor Makhetha, Cap­tain Chaka, Sec­ond-lieu­tenant Mo­hasi, Sergeant Mokhobo, Sergeant Se­makale, Sergeant Lekhabun­yane, Cor­po­ral Mokhoro, Cor­po­ral Let­si­lane, Cor­po­ral Lipoto, Cor­po­ral Manaka, Cor­po­ral Mo­hat­lane, Cor­po­ral Chele, Cor­po­ral Mot­seko, Lance-cor­po­ral Jobo, Lance-cor­po­ral Molefi, Lance-cor­po­ral Makhooane, Pri­vate Pama, Pri­vate Bolofo and Pri­vate Ral­itlemo.

The sol­diers were rep­re­sented by Ad­vo­cate Anna-marie de Vos (Se­nior Coun­sel) from South Africa, and Ad­vo­cates Haae Phoofolo (KC), Christo­pher Le­phuthing, and Koili Nde­bele. They were in­structed by At­tor­neys Khotso Nthon­tho and Tu­misang Mosotho.

The re­spon­dents, among them LDF Com­man­der Lt-gen Tlali Kamoli, Mr Mokhosi, chairperson of the SADC Com­mis­sion of In­quiry Jus­tice Mpa­phi Phumaphi and At­tor­ney Gen­eral Tšokolo Makhethe — were rep­re­sented by Ad­vo­cate Motiea Teele (KC).

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