Court saves Hashatsi from an­other grilling

Lesotho Times - - News - Tefo Tefo

The high Court this week saved Lieu­tenant-colonel Tefo hashatsi (pic­tured) from an­other grilling by the SADC com­mis­sion af­ter Jus­tice Tšeliso Mon­aphathi granted his ap­pli­ca­tion not to ap­pear be­fore the probe team yes­ter­day.

The Spe­cial Forces com­man­der ap­proached the court on Fri­day last week seek­ing tem­po­rary re­lief from ap­pear­ing be­fore the com­mis­sion again un­til his ap­pli­ca­tion to stop its probe into the death of former Le­sotho Defence Force (LDF) com­man­der Maa­parankoe Ma­hao, is fi­nalised.

Lt-col hashatsi claims the com­mis­sion was bi­ased against him dur­ing his first ap­pear­ance on 17 Septem­ber, hence his ap­pli­ca­tion to stop the probe.

he sin­gles out the com­mis­sion’scom­mis­sion s chairperson, Jus­tice Mpa­phi Phumaphi, for spe­cial men­tion and says the Botswana judge made him ap­pear the prime sus­pect in Lieu­tenant-gen­eral Ma­hao’s killing. Lt-gen Ma­hao was shot dead on 25 June this year by sol­diers who had come to ar­rest him for al­legedly be­ing the ring­leader of a group of sol­diers who had plot­ted to top­ple the LDF com­mand.

Jus­tice Tšeliso Mon­aphathi said when sav­ing Lt-col hashatsi from yet an­other cross-ex­am­i­na­tion which had been sched­uled for yes­ter­day at the State Li­brary w where the com­mis­sion has been in­ter­viewing­in­terv wit­nesses since 31 Au­gust: “I agree that prayer 1(l) be granted. It is the prayerpr that speaks about wheth whether the chair­man of the com­mis­sion­com and the com­mis­sion­com­mis­sio it­self shall not be re­strict­e­drestri from sum­mon­ing the ap­pli­cant pend­ing the fi­nal­i­sa­tion of this appl ap­pli­ca­tion.

“In othero words, the com­mis­sion­com­mis will con­tinue with its nor­mal work ex­cept call­ingc the ap­pli­cant to ap­pear be­fore it un­til theth ap­pli­ca­tion has been fi­nalised.”fin

Lt-col Hashatsi’s ap­pli

cation In his ap­pli­ca­tion,ap Lt-col Hashatsi ar­gue­sar the “clear stance” taken by Jus­tice Phumaphi against him vi­o­lated his con­sti­tu­tional rightr to be pre­sumed in­no­cent un un­til proven guilty by a com­pe­tent court.cour

The LDF of­fi­cer sayss Jus­tice Phumaphi ap­pears to h have al­ready con-

Hcluded that he was re­spon­si­ble for LtGen Ma­hao’s mur­der due to his line of ques­tion­ing.

Be­cause of the al­leged bias, Lt-col hashatsi wants the re­spon­dents — Prime Min­is­ter Pakalitha Mo­sisili, Jus­tice Phumaphi, the SADC Com­mis­sion of In­quiry and At­tor­ney Gen­eral Tšokolo Makhethe — to give rea­sons why the in­quiry should not be dis­con­tin­ued “for lack of im­par­tial­ity”.

he fur­ther wants the probe to be stopped be­cause some of its mem­bers were not “le­gally com­mis­sioned”.

Lt-col hashatsi says the re­spon­dents should ex­plain to the court why:

lthe pro­ceed­ings should not be “re­viewed and set aside as hav­ing been vi­ti­ated by an er­ror of law that they did not have to be con­ducted ac­cord­ing to the Pub­lic In­quiries Act ex­cept only to the ex­tent of us­ing the pro­vi­sions for the com­pul­sion of wit­nesses un­der that law.

lthe pro­ceed­ings should not be re­viewed and set aside be­cause of the par­tic­i­pa­tion of Mr Waly and ev­ery­one else who was not ap­pointed as a com­mis­sioner in terms of Le­gal No­tice 75 of 2015.

Lt-col hashatsi fur­ther wants the court to rule that the com­mis­sion acted be­yond its pow­ers when it con­ducted hear­ings in Thaba ‘Nchu, South Africa, from 1-7 Oc­to­ber, where ex­iled op­po­si­tion lead­ers and mem­bers of the army gave tes­ti­monies.

he also wants the court to or­der the com­mis­sion to sur­ren­der ev­i­dence it has since gath­ered about him, to the Reg­is­trar of the high Court.

Part of the no­tice of mo­tion also calls for the re­spon­dents to ex­plain “why ev­i­dence and facts re­lat­ing to him shall not be ex­punged from the record of the pro­ceed­ings”.

Lt-col hashatsi fur­ther wants the re­spon­dents to show cause why the com­mis­sion should not be “re­strained and in­ter­dicted” from mak­ing any find­ings in re­la­tion to him, and also stopped from sum­mon­ing him again “pend­ing the out­come of this ap­pli­ca­tion”.

he also states the ap­pli­ca­tion was made in his per­sonal ca­pac­ity and not as an LDF of­fi­cer.

‘Mam­phanya Ma­hao

Mean­while, Jus­tice Mon­aphathi also granted an ap­pli­ca­tion by Lt-gen Ma­hao’s wife, ‘Mam­phanya, to be part of the case.

how­ever, the rul­ing was made af­ter a heated ex­change be­tween Ms Ma­hao’s le­gal rep­re­sen­ta­tive, King’s Coun­sel (KC) haae Phoofolo and LtCol hashatsi’s lawyer, Ad­vo­cate Motiea Teele (KC).

Ad­vo­cate Phoofolo KC told the court his client wanted to be one of the re­spon­dents be­cause she in­tended to op­pose all the prayers sought by LtCol hashatsi.

“In the ap­pli­ca­tion to in­ter­vene, my client says she op­poses every­thing, in­clud­ing the in­terim or­der sought. I thought this ap­pli­ca­tion should be dealt with first,” Ad­vo­cate Phoofolo sub­mit­ted.

But Ad­vo­cate Teele in­sisted Ms Ma­hao was not party to the pro­ceed­ings when the ap­pli­ca­tion was made, hence she had no right to stop the court from grant­ing the in­terim or­der.

“As mat­ters stand, Mrs Ma­hao is only knock­ing at the door to be al­lowed in. In fact, I don’t think she has a le­gal right to join. But she might be joined only for emo­tional rea­sons, which we don’t have a prob­lem with.

“This ap­pli­ca­tion is about some­one’s rights which he al­leges are likely to be vi­o­lated as they have al­ready been vi­o­lated be­fore by the com­mis­sion,” Ad­vo­cate Teele said.

Jus­tice Mon­aphathi then asked the com­mis­sion’s lawyer, Ad­vo­cate Molefi Ntl­hoki (KC), what his clients’ stance was con­cern­ing the in­terim re­lief LtCol hashatsi was seek­ing.

In re­sponse, Ad­vo­cate Ntl­hoki said the com­mis­sion had no ob­jec­tion to the in­terim or­der, re­sult­ing in Jus­tice Mon­aphathi grant­ing Lt-col hashatsi his wish.

The judge also ruled Ms Ma­hao could be joined to the pro­ceed­ings as the fifth re­spon­dent.

Ex­iled sol­diers

But soon af­ter the an­nounce­ment, Ad­vo­cate Christo­pher Le­phuthing told the judge he would also file an ap­pli­ca­tion on be­half of ex­iled LDF mem­bers to be part of the case. The sol­diers fled the coun­try on dif­fer­ent dates in 2014 and this year af­ter claim­ing the LDF author­i­ties were out to ar­rest or assassinate them.

“The sol­diers in ex­ile also want to join the pro­ceed­ings. At­tor­ney Nthon­tho is also go­ing to rep­re­sent the de­tained sol­diers as they also have in­ter­est in the mat­ter,” Ad­vo­cate Le­phuthing said.

In re­sponse, Jus­tice Mon­aphathi said par­ties wish­ing to join the pro­ceed­ings as re­spon­dents should com­ply with the time­frame set by the court re­gard­ing the hear­ing of the case, which is sched­uled to be­gin on 2 De­cem­ber 2015.

Jus­tice Mon­aphathi also ruled the re­spon­dents should file their an­swer­ing pa­pers by 3 Novem­ber.

But with the com­mis­sion ex­pected to com­plete its work on 9 Novem­ber, it means Lt-col hashatsi’s case would be heard af­ter the probe.

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