Hashatsi case post­poned

Lesotho Times - - News - Tefo Tefo

THE High Court on Tues­day post­poned to 5 Fe­bru­ary 2016 a case in which Spe­cial Forces Com­man­der Lieu­tenant-colonel Tefo hashatsi ( pic­tured) wants the SADC Com­mis­sion of In­quiry into the death of for­mer army com­man­der Maa­parankoe Ma­hao de­clared il­le­gal.

The post­pone­ment came af­ter Trans­for­ma­tion Re­source Cen­tre (TRC) lawyer, at­tor­ney Tu­misang Mosotho, had told the court the case was no longer rel­e­vant be­cause of res­o­lu­tions made by the SADC Dou­ble Troika in Botswana on Mon­day.

at­tor­ney Mosotho said the case was now “aca­demic” be­cause the com­mis­sion’s re­port had al­ready been pre­sented to the Dou­ble Troika sum­mit, which had been con­vened to dis­cuss Le­sotho’s in­sta­bil­ity sparked by the killing of Lt-gen Ma­hao by his mil­i­tary col­leagues on 25 June 2015, as well as the Com­mis­sion of In­quiry’s re­port and Lt-col hashatsi’s court case.

The sub­mis­sion of the re­port had af­fected some of the prayers Lt-col hashatsi was seek­ing in his court ap­pli­ca­tion, the lawyer added.

King’s Coun­sel Motiea Teele, who rep­re­sented Lt-col hashatsi in the case, then sug­gested that at­tor­ney Mosotho should pre­pare a for­mal ap­pli­ca­tion through a no­tice-of-mo­tion, ex­plain­ing why the case, which had started the pre­vi­ous day, was now “aca­demic”.

how­ever, ad­vo­cate Teele, Ms ‘Mam­phanya Ma­hao’s le­gal rep­re­sen­ta­tive Se­nior Coun­sel an- na-marie De Vorse, and lawyers rep­re­sent­ing the com­mis­sion and its chair­per­son, King’s Coun­sel Molefi ntl­hoki and ad­vo­cate Te­balo pot­sane, had fin­ished their re­spec­tive ar­gu­ments when at­tor­ney Mosotho made his ob­ser­va­tion be­fore the court.

The TRC, a civic rights group, joined the pro­ceed­ings as amici cu­riae, or friends of the court. pre­sid­ing judge, Jus­tice Tšeliso Mon­aphathi, then told the court: “I am be­ing asked to post­pone the case when I thought ar­gu­ments were com­plete.

“I am told the is­sues here have been over­taken by events and ref­er­ence is made to para­graph Five of the ( SADC) com­mu­niqué.”

The para­graph the judge was re­fer­ring to read: “The Dou­ble Troika Sum­mit handed over the Re­port of the Com­mis­sion of In­quiry to the Govern­ment of the King­dom of Le­sotho.

“The Dou­ble Troika Sum­mit tasked the Govern­ment of the King­dom of Le­sotho to pro­vide feed­back to the Chair of the Or­gan on pol­i­tics, De­fence and Se­cu­rity Co­op­er­a­tion, and pub­lish the re­port within 14 days (by 1 Fe­bru­ary 2016).”

The judge con­tin­ued: “I am at a stage when I should be mak­ing judg­ment but now I’m con­fronted with an­other mat­ter. It is now a stress­ful sit­u­a­tion. The sug­ges­tion made now brings the op­po­site of what was said be­fore.”

Mean­while, on Mon­day, it had been agreed that court pro­ceed­ings should con­tinue de­spite the SADC Dou­ble Troika sum­mit. pres­i­dent Ian Khama chaired the sum­mit in his ca­pac­ity as head of SADC. Zim­babwe (out­go­ing chair), Swazi­land (in­com­ing chair), and the SADC Or­gan on pol­i­tics, De­fence and Se­cu­rity Co­op­er­a­tion trio com­pris­ing Mozam­bique (chair), South africa (out­go­ing chair), and Tan­za­nia (in­com­ing chair) was also rep­re­sented in the Dou­ble Troika sum­mit held in Gaborone.

Jus­tice Mon­aphathi noted as he post­poned the case: “What is piti­ful is that we will have to assem­ble here again with costs and this also af­fects the ad­min­is­tra­tion of jus­tice. In­deed, I want to sym­pa­thise with peo­ple be­fore me now. This case is post­poned to the 5th of Fe­bru­ary this year.”

Mean­while, dur­ing ar­gu­ments, ad­vo­cate pot­sane re­it­er­ated what his se­nior, ad­vo­cate ntl­hoki, had said—that the SADC Com­mis­sion and its mem­bers could not be sued be­cause they en­joyed im­mu­nity and priv­i­leges en­shrined in the re­gional bloc’s Treaties and pro­to­cols.

“The pub­lic In­quiries act does not ap­ply to the com­mis­sion be­cause it was a SADC com­mis­sion, not a Le­sotho com­mis­sion.

“The act was only used to pro­vide le­gal frame­work for the op­er­a­tion of the com­mis­sion,” he said.

On the other hand, ad­vo­cate De Vorse agreed that the pub­lic In­quiries act of 1994 was the ap­pli­ca­ble law to chal­lenge the pro­ceed­ings of the com­mis­sion. how­ever, ad­vo­cate De Vorse fur­ther said Lt-col hashatsi could only seek

re­lief on mat­ters that af­fected him di­rectly as an or­di­nary ci­ti­zen.

The lawyer fur­ther said she did not see any­thing wrong with the ques­tions di­rected at Lt-col hashatsi by the com­mis­sion’s chair­per­son, Jus­tice Mpa­phi phumaphi dur­ing the pro­ceed­ings. In his law­suit, Lt-hashatsi said the com­mis­sion should be de­clared il­le­gal be­cause its mem­bers, es­pe­cially Jus­tice phumaphi, were bi­ased against him.

ac­cord­ing to Lt-col hashatsi’s court ap­pli­ca­tion filed on 16 Oc­to­ber 2015, the ques­tions he was asked by Jus­tice phumaphi made him a sus­pect in Lt-gen Ma­hao’s mur­der.

his lawyer, ad­vo­cate Teele, said Jus­tice phumaphi treated Lt-col hashatsi un­fairly be­cause he con­fronted him with facts he had not been told about in ad­vance so he could pre­pare his an­swers.

ad­vo­cate Teele also said it was wrong for the com­mis­sion to gather ev­i­dence in South africa be­cause it had been formed through a Le­sotho law which did not have pow­ers be­yond the coun­try’s bor­der.

“The laws are ter­ri­to­rial in na­ture. If the com­mis­sion was to op­er­ate out­side the coun­try, then the pub­lic In­quiries act would not ap­ply be­cause it doesn’t have ex­trater­ri­to­rial ap­pli­ca­tion,” ad­vo­cate Teele said.

In re­sponse, ad­vo­cate De Vorse noted: “I agree that it was awk­ward for the ques­tions to come from the chair­per­son, but it doesn’t give the ap­pli­cant any cause for ac­tion.

“It would only be un­fair if he was not given an op­por­tu­nity to re­spond to the ques­tions.”

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