. . . as Phoofolo also loses parly dissolution challenge
THE Court of Appeal on Friday dismissed Basotho National Party (BNP) spokesperson Machesetsa Mofomobe and a political activist, Mohato Seleke’s appeal against a High Court judgment that gave government the green light to use one third of the budget funds.
Mr Mofomobe and Mr Seleke had filed a constitutional case before the High Court to stop the Finance Minister Tlohang Sekhamane from using the public funds for the current financial year (which started on 1 April) on the grounds that the minister failed to lay 2017/2018 financial estimates before parliament in March as required by law.
Opposition legislators in February objected to the tabling of budget in the National Assembly on the grounds that they wanted the august house to prioritise a no confidence motion against Prime Minister Pakalitha Mosisili and his seven parties’ coalition government.
The legislators passed a vote of no confidence against Dr Mosisili and his government on 1 March and King Letsie III subsequently dissolved parliament on 6 March and called for snap elections on 3 June 2017.
The applicants therefore sought a court ruling that it was unconstitutional for the government to use one third of the budget when the estimates were not tabled.
Section 113 of the constitution provides that the Minister of Finance can use one third of the financial estimates laid in parliament if the budget has not yet been passed by parliament.
They however, lost the case last month before a panel of five High Court judges and they appealed against the judgment.
The Court of Appeal on Friday dismissed the appeal on the grounds that the High Court was correct in its judgment.
However, the copies of the written judgment that contain reasons for the dismissal of the appeal will only be available tomorrow.
During the argument last week, the lawyer representing the duo Attorney Tumisang Mosotho told the Court of Appeal that the judges who dismissed the application erred.
He said the law provides that the minister could use one third of the financial estimates laid in parliament.
He however, said in this instance, the estimates were not laid in parliament “at all”, therefore it is unconstitutional for the minister to use the public funds.
“The Standing Orders state clearly the procedure of laying, tabling or presenting a document in parliament,” Attorney Mosotho.
“They state that a minister shall rise from his or her seat, go and lay document on a table.
“This was not done and it cannot be correct to say the financial estimates for this year were tabled in parliament,” he said.
He conceded that the budget was given to the Clerk of the National Assembly, but said that did not amount to tabling it before parliament.
“Indeed it was given to the Clerk. That’s why the order paper for the 27 February indicated that there would be budget that day.
“But that did not happen because the MPs objected to it. In other words, what the minister did was just to give notice, but he never stood up in the house and moved the motion.
“I submit what he did was not tabling, and as a result the government cannot take money from the public purse when the budget was not tabled as the law requires,” he said.
But the lawyer representing the government, Senior Counsel Guido Penzhorn insisted the tabling was done because the document was given to the Speaker and the Clerk of the National Assembly.
“Once the document is in the office of the Clerk the MPs have access to it.
“It means they knew about the financial estimates,” he said.
Meanwhile, King’s Counsel Haae Phoofolo and the BNP deputy leader Joang Molapo also lost the appeal in which they wanted the Court of Appeal to overturn a High Court ruling that dismissed their application in which they challenged dissolution of parliament.
The duo were challenging the government’s gazette that dissolved parliament on the grounds that King Letsie III wrongfully acted on the advice of Dr Mosisili to dissolve parliament.
They argued that His Majesty should have acted on the advice of the Council of State to dissolve parliament.
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