Govt fumes over Phumaphi lawyer

Lesotho Times - - Front Page - ’Marafaele Mohloboli

THE govern­ment is de­mand­ing an­swers from the South­ern African De­vel­op­ment Com­mu­nity (SADC) af­ter the re­gional body dumped a South African law firm it had re­quested the At­tor­ney Gen­eral to en­gage and rep­re­sent the Phumaphi Com­mis­sion in its le­gal bat­tle against Lieu­tenant-colonel Tefo Hashatsi.

Jus­tice Phumaphi had told the govern­ment that he would be rep­re­sented by ei­ther Ad­vo­cate PU Fis­cher or Adv PJ Loub­ser through Lovius Block At­tor­neys of Bloem­fontein in the law­suit.

In his ap­pli­ca­tion filed be­fore the High Court on 17 Oc­to­ber 2015, LtCol Hashatsi is chal­leng­ing the le­git­i­macy of the com­mis­sion which was es­tab­lished by SADC to es­tab­lish the cir­cum­stances sur­round­ing the army’s fa­tal shoot­ing of for­mer Le­sotho De­fence Force (LDF) com­man­der Maa­parankoe Ma­hao.

Lt-gen Ma­hao was killed out­side Maseru on 25 June 2015, and the LDF later said he was re­sist­ing ar­rest when he was shot.

Af­ter the killing, Prime Min­is­ter Pakalitha Mo­sisili sought SADC’S as­sis­tance to probe the tragedy, re­sult­ing in the es­tab­lish­ment of the Phumaphi-led com­mis­sion which con­ducted its in­ves­ti­ga­tions be­tween 31 Au­gust and 23 Oc­to­ber in Maseru and Thaba-nchu, South Africa.

Lt-col Hashatsi was among sev­eral peo­ple in­ter­viewed dur­ing the probe but the Spe­cial Forces Com­man­der later ac­cused the com­mis­sion­ers, in par­tic­u­lar Jus­tice Phumaphi, of be­ing bi­ased against him. The LDF of­fi­cer said, in his court ap­pli­ca­tion, that the com­mis­sion­ers’ line of ques­tion­ing made him ap­pear a sus­pect in Lt-gen Ma­hao’s killing, which he said vi­o­lated his con­sti­tu­tional right to be pre­sumed in­no­cent un­til proven guilty by a com­pe­tent court.

Be­cause of the al­leged bias, LtCol Hashatsi wanted 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 de­clared il­le­gal.

Lt-col Hashatsi also wants the com­mis­sion de­clared il­le­gal for al­legedly vi­o­lat­ing its terms of ref­er­ence by hear­ing ev­i­dence in South Africa when it had been es­tab­lished by Le­sotho laws.

Af­ter the law­suit, For­eign Af- fairs Min­is­ter, Tlo­hang Sekhamane, ad­vised Jus­tice Phumaphi that the of­fice of the At­tor­ney Gen­eral was avail­able for “ei­ther seek­ing ad­vice and/or le­gal rep­re­sen­ta­tion of coun­sel of your own choice man­dated by the At­tor­ney Gen­eral at the ex­pense of the State”.

This ad­vice is con­tained in a let­ter dated 22 Oc­to­ber 2015, a copy of which the Le­sotho Times man­aged to ob­tain.

In re­sponse, Jus­tice Phumaphi said he wanted to be rep­re­sented by the South African firm.

Af­ter the com­mu­ni­ca­tion, govern­ment en­gaged Lovius Block At­tor­neys, and de­posited M100 000 into the com­pany’s trust ac­count — only to re­alise later that the com­mis­sion had en­gaged a lo­cal lawyer, Ad­vo­cate Molefi Ntl­hoki.

For­eign Affairs and In­terna- tional Re­la­tions PS, ’Math­o­riso Mon­a­heng then wrote to SADC Ex­ec­u­tive Sec­re­tary Dr Ster­gom­ena Lawrence Tax on 15 De­cem­ber 2015, de­mand­ing an ex­pla­na­tion on this de­vel­op­ment which she said was never com­mu­ni­cated to the govern­ment.

Part of the let­ter reads: “Dur­ing the course of its pro­ceed­ings, the com­mis­sion was cited in lit­i­ga­tion be­fore the High Court of Le­sotho (Civil Ap­pli­ca­tion 309- Hashatsi vs Prime Min­is­ter and Oth­ers).

“In ful­fill­ment of its com­mit­ment and un­der­tak­ing, the govern­ment, through the of­fice of the At­tor­ney Gen­eral, con­trib­uted and ac­tu­ally paid an amount of M100 000 to­wards the le­gal fees of Lovi­ous Block At­tor­neys of Bloem­fontein, who had been pre­sented to us by the com­mis­sion as their le­gal rep­re­sen­ta­tives.

“We had also, af­ter due con­fir- ma­tion, writ­ten to the said Lovi­ous Block At­tor­neys, to ap­point them to rep­re­sent the com­mis­sion, as the com­mis­sion’s own cho­sen rep­re­sen­ta­tives.

“Hav­ing gone through all the ex­er­cise above and com­pleted it (dif­fi­cult and te­dious as it has been at some stages), we now learn that in­stead, SADC has en­gaged the ser­vices of Molefi Ntl­hoki KC, a lo­cal prac­tic­ing ad­vo­cate, and that, with­out a word to us that they have since aban­doned Lovius Block At­tor­neys.

“In the mean­time, there is M100, 000 which is ear­marked for the trust ac­count of Lovius Block At­tor­neys per a writ­ten ar­range­ment with SADC it­self.”

Ac­cord­ing to Ms Mon­a­heng, Dr Tax owed the govern­ment an ex­pla­na­tion re­gard­ing the new turn of events and what would hap­pen to the de­posited M100 000.

“I think we are en­ti­tled to ur­gent clar­i­fi­ca­tion on the part of the Ex­ec­u­tive Sec­re­tary (and the SADC Chair­man Pres­i­dent Ian Khama of Botswana) as to re­ally what it is that they want us to do in re­la­tion to the money.

“Are we now to with­draw the man­date we gave Lovius Block At­tor­neys, in­clud­ing to man­date dif­fer­ent at­tor­neys to rep­re­sent SADC? And who are those? What ex­actly is SADC ex­pect­ing us to do in all th­ese cir­cum­stances? What of Ad­vo­cate Ntl­hoki KC, of whom we know noth­ing about from SADC?” Ms Mon­a­heng asks Dr Tax.

Asked if Dr Tax had re­sponded to her let­ter, Ms Mon­a­heng said she had not, while Dr Tax and Lovius Block At­tor­neys were not im­me­di­ately avail­able for com­ment.

On his part, Ad­vo­cate Ntl­hoki yes­ter­day told the Le­sotho Times: “No­body was ap­pointed to rep­re­sent Phumaphi and his Com­mis­sion un­til I was ap­proached by Phumaphi him­self to han­dle that case. He signed me a power-ofat­tor­ney and that’s how I got en­gaged.

“I even had to put aside three of my cases due to the ur­gency of the Com­mis­sion’s case.”

Mean­while, Lt-col Hashatsi’s law­suit con­tin­ues in the High Court to­mor­row.

In ful­fill­ment of its com­mit­ment and un­der­tak­ing, the govern­ment, through the of­fice of the At­tor­ney Gen­eral, con­trib­uted and ac­tu­ally paid an amount of M100 000 to­wards the le­gal fees of Lovi­ous Block At­tor­neys of Bloem­fontein, who had been pre­sented to us by the com­mis­sion as their le­gal rep­re­sen­ta­tives

JUS­TICE Mpa­phi Phumaphi LIEU­TENANT-COLONEL Tefo Hashatsi

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