. . . as Special Forces commander appeals ruling
LESOTHO Defence Force ( LDF) Special Forces commander, Lieutenant-colonel Tefo Hashatsi, has appealed a High Court ruling dismissing his bid to have the SADC inquiry into Lesotho’s instability declared illegal.
Justice Tšeliso Monaphathi dismissed the challenge on Monday, saying it was premature for Lt-col Hashatsi to seek to nullify the SADC Commission before it had completed its inquiry.
However, on the same day, Lt-col Hashatsi lodged an appeal in the Court of Appeal.
In his grounds of appeal, Lt-col Hashatsi says: “The learned judge erred and misdirected himself in holding as he did that the proceedings were brought prematurely in view of the fact that at the time the proceedings were instituted, namely on 16 October 2015, the unchallenged evidence indicated that the commission was due to complete its business on 21 October 2015.
“The learned judge erred and misdirected himself in dismissing the application when there was evidence proving and substantiating the relief sought. Had the learned judge brought his mind to bear on the evidence as a whole he should have granted the application.”
He also challenges the judge’s ruling that the commission acted within its powers by gathering evidence in Thaba-nchu, South Africa where exiled opposition leaders and members of the army gave testimonies.
“The learned judge erred and misdirected himself in holding as he did that the second and third respondents, Justice Mpaphi Phumaphi and the Commission respectively, were entitled to sit and hear evidence in the Republic of South Africa,” Lt-col Hashatsi argues.
“The learned judge ought to have held that such sitting and hearing was ultra vires (beyond their legal power) the provisions of section 3 of the Public Inquiries Act read with legal notices number 75 and 88 of 2015 that defined the nature and extent of their mandate.”
He further argues that: “The learned judge erred and misdirected himself in not reviewing and setting aside the proceedings of the second and third respondents as having been vitiated by an error of law in that he should have held that the proceedings before these respondents should have been conducted according to the provisions of the Public Inquiries Act.
“Had the learned judge brought his mind to bear on the evidence before him, he should have held that the second and third respondents were bound by the provisions of the Public Inquiries Act.”
He wants the probe to be declared illegal because some of its members, including a Mr Waly, were not “legally commissioned”, and says the respondents should explain to the court
Lt-col Hashatsi also complains that the judge should have ruled in his favour to restrain Justice Phumaphi and the commission from making any findings against him.
Meanwhile, the first session of the Court of Appeal is scheduled for April this year.