Tefo Tefo
A case in which Special Forces Commander Lieutenant-Colonel Tefo Hashatsi wants the Southern African Development Community (SADC) inquiry into the death of former army commander Maaparankoe Mahao declared illegal, resumes in the High Court tomorrow.
Justice Tšeliso Monaphathi on 4 December 2015 postponed the case to 18-19 January 2016.
The matter had started on 3 December 2015 and the court adjourned to meet again the following day at 11am.
But when it convened on 4 December, Lt-Col Hashatsi’s lawyer, King’s Counsel (KC) Motiea Teele, said he had left his files in Leribe and asked the court to reconvene at 2:30pm the same day.
However, the suggestion was turned down after the lawyer representing Lt-Gen Mahao’s widow, Senior Counsel Anna-Marrie de Vorse, indicated she would not be available at that time as she had to leave for her native South Africa.
It was then that the case was postponed to 18-19 January 2016.
A highly placed source in the High Court on Friday confirmed that the case is proceeding this week as planned.
Lt-Col Hashatsi on 16 October filed an urgent application seeking to block the inquiry led by Justice Mpaphi Phumaphi of Botswana, as he accused it, among others, of bias against him.
He alleged in his court papers this bias was clear when he first appeared before it the previous month. The officer says in the application that Justice Phumaphi suggested to him that he participated in the killing of Lt-Gen Mahao hence his conclusion the investigation was not neutral.
Lt-Gen Mahao was killed on 25 June 2015 just outside Maseru during an army operation to arrest soldiers suspected of being part of an alleged plot to topple the Lesotho Defence Force (LDF) command.
He had had been fingered as the ringleader of the soldiers involved in the alleged mutiny, with the military later announcing Lt-Gen Mahao was shot while resisting arrest.
Soon after the killing, Prime Minister Pakalitha Mosisili asked SADC to help establish the circumstances surrounding the shooting, resulting in the Phumaphi-led commission.
Meanwhile, the resumption of the case this week coincides with the SADC summit in Botswana which is set to discuss Justice Phumaphi’s inquiry, among other regional issues.
Justice Phumaphi, who led his 10-member inquiry from 31 August to 23 October 2015, last month presented a report of his findings to the SADC Organ on Politics, Defence and Security Cooperation chaired by Mozambique President Felipe Nyusi. The submission was made in Sandton with another troika member, President Jacob Zuma of South Africa, and a representative of Tanzania, also in attendance. South Africa’s deputy president Cyril Ramaphosa, who was appointed by the regional bloc to mediate in the Lesotho instability which has also seen opposition leaders fleeing the country fearing for their lives, and SADC Executive Secretary Lawrence Stergomena Tax, also attended the summit.
In that 6 December meeting, the troika noted Lt-Col Hashatsi’s court challenge, and dispatched Mr Ramaphosa to Maseru to “to expeditiously communicate the concerns of SADC to the Kingdom of Lesotho,” on the issue.
However, government has maintained it cannot receive the Phumaphi report until Lt-Col Hashatsi’s case has been finalised by the courts.
But during arguments on 3 December, King’s Counsel Molefi Ntlhoki, who is representing Justice Phumaphi and the commission as second and third respondents, told Justice Monaphathi that he had no powers to hear the case because of a number of reasons.
Advocate Ntlhoki told the court: “We did not dispute the merits at all because as far as we are concerned, they do not concern us. Ours is just a point of law. All we say is that Lesotho is a member of SADC and as such, the third respondent was set-up pursuant to an agreement of SADC states of which Lesotho is a member.
“This regional organization is concerned with, among others, security and instability of its member-states, and the person who approached his SADC partners was the first respondent, Prime Minister Pakalitha Mosisili.
“SADC did not just impose itself on Lesotho and I’m surprised because in the papers, the prime minister is cited together with the Attorney General (fourth respondent) but he has not filed any papers.
“When he is being sued by his own soldier, he doesn’t say ‘no, you cannot sue Phumaphi and the commission because I was the one who consulted SADC for the establishment of the commission’.
“The issue here is about the jurisdiction of this court.
“Does this court have jurisdiction over the second and third respondents?
“Does this court have the ability to decide on this matter as far as the second and third respondents are concerned?
“If this is a SADC commission, does the applicant (Lt-Col Hashatsi) have the capacity to seek the relief he seeks?
“He doesn’t have the right to bring these proceedings before court.”
On the other hand, Senior Counsel Anna-Marie de Vos said Lt-Col Hashatsi was only entitled to seek the court’s intervention on matters that affected him as an individual.
“In his founding affidavit, he described what happened to him and thought the commission was not fair on him.
“The applicant is not entitled to any of the prayers that are of public interest, but he is entitled to prayers that affect him directly,” she said.
Advocate de Vos also said Lt-Col Hashatsi had no right to challenge the admissibility of evidence obtained by the commission outside Lesotho because this did not affect him directly as an individual.
“He has no interest where the commission sits,” Advocate de Vos said.
“If the commission wanted him to give evidence in Thaba ‘Nchu (South Africa), then he could have approached the court to challenge it because it would then be a matter that affected him directly.”
In response, Lt-Col Hashatsi’s lawyer, KC Teele said the confusion was initiated by Justice Phumaphi when he said the commission was not a Lesotho inquiry, but belonged to SADC.
“As far as the commission is concerned, there is no remedy for the applicant under the Act (Public Inquiries Act).
“What is important here is that what is applicable is the Public Inquiries Act.
“It doesn’t matter whether one calls it the SADC Commission or the Lesotho Commission.
“Justice Phumaphi should have come and told this court why he conducted the commission the way he did,” he submitted.
The lawyer also noted Justice Phumaphi and the commission did not file any affidavits to refute the allegations levelled against them by Lt-Col Hashatsi.