Moorosi Tsiane
THE Director of Public Prosecutions (DPP), Hlalefang Motinyane, will have to wait until 1 July 2025 for the Constitutional Court to hear her urgent application seeking to have three judges recuse themselves from handling her case to stop her planned impeachment.
The recusal request is part of DPP Motinyane’s broader challenge filed in August 2024 to Prime Minister Sam Matekane’s government’s attempt to impeach her for alleged “gross incompetence.”
Advocate Motinyane won a victory of sorts on Friday when the judges ruled her recusal application can proceed to be heard on I July 2025.
The DPP had earlier been served with a show cause letter requiring her to explain why a tribunal should not be established to determine her fitness to remain in office. In response, she launched a constitutional application, arguing that the process of establishing such a tribunal was unlawful.
Now, she is seeking the recusal of Justices Fumane Khabo, Tšeliso Mokoko, and Moneuoa Kopo, who have been assigned to hear her case. Advocate Motinyane contends that the panel was appointed by Chief Justice Sakoane Sakoane, who is an interested party, as he is one of the respondents in the main application. She thus cannot expect a fair hearing from a panel appointed by an interested party.
DPP Motinyane initially approached the Constitutional Court in August 2024 to block the impeachment process. However, her case first stalled on 23 October 2024 when her lawyer, Advocate Tekane Maqakachane, filed a review application contesting the composition of the three-judge panel. He argued that, according to the 2024 High Court and Civil Litigation Rules, a single judge could preside over the matter.
That review application was dismissed in December 2024 by the same three judges, with Justice Khabo ruling that all due processes were followed when they were assigned the matter. The state, in that matter, was represented successfully by Advocate Jaco Roux SC. Advocate Jaco Roux and his instructing Attorney, Neil Frazer of Webber Newdigate, have since withdrawn from the matter.
Justice Khabo had instructed both parties to file their heads of argument in preparation for the main case.
However, instead of filing her heads of argument as directed, DPP Motinyane filed a new application seeking the recusal of the same judges last month. She claims the panel is biased and was appointed through a flawed process.
Prime Minister Sam Matekane, Law and Justice Minister Richard Ramoeletsi, Attorney General Rapelang Motsieloa, His Majesty King Letsie III, and Chief Justice Sakoane are the first to fifth respondents respectively.
In her affidavit, DPP Motinyane now argues that the panel is improperly constituted because it was appointed by the Chief Justice, who is actively involved in the case.
“On account of the role which the Honourable Chief Justice plays in the impeachment process of the Director of Public Prosecution in terms of section 141 of the Constitution of Lesotho, the Honourable Chief Justice was joined in the main application. On 2 July 2024, the respondents, including the Honourable Chief Justice, were served with the papers in the main application.
“On 9 September 2024, the Honourable Chief Justice allocated the matter to Honourable Khabo, Kopo and Mokoko. This was despite the Chief Justice having been joined in the application and despite the fact that the Chief Justice has no power under the law to allocate cases to judges, but only to regulate the distribution of business in the High Court in terms of section 12 of the High Court Act 1978,” she states.
“I aver that the allocation of cases in the High Court is the exclusive remit of the Deputy Registrar, as prescribed by section 8 of the Administration of the Judiciary Act 2011. This is done through the computerised individual docket system which automatically indicates which judge should be allocated the case that is being registered in the docket system.
“I aver that there is no role which the Chief Justice must play in the actual allocation of cases to specific judges. The Chief Justice may only direct that a specific matter requires to be heard by a bench of three judges under section 12 of the High Court Act 1978. He may not designate or appoint specific or specified judges to hear a specific matter, especially where he is joined as a party.”
DPP Motinyane further argues that the three judges are disqualified from hearing the case due to their working relationship with Chief Justice Sakoane.
“I aver that the honourable judges appointed by the Chief Justice to hear and determine the main application — in which the Chief Justice has been joined as a party — are disqualified from hearing that application. The honourable judges are disqualified from participating in the main application by virtue of their relationship with the Chief Justice. They are junior judges who have recently been appointed to the bench; they are subordinate to and under the supervision of the Chief Justice. Their direct appointment by the Chief Justice may influence them to determine the matter in favour of the Chief Justice and against me as the applicant.
“By virtue of their relationship with the Chief Justice, the honourable judges are predisposed to favour the Chief Justice and to dismiss my application. I aver that I am aware of the identity and names of persons who have already been approached for selection and have been sought to be members of the tribunal in my intended impeachment,” she adds.
Concerned with how the matter has been handled by both parties, the three judges invoked Rule 47(1) of the High Court Civil Litigation Rules 2024 and called a status hearing last Friday. The rule empowers a presiding judge to intervene when deadlines are not met or a case stalls, including by imposing sanctions and cost orders.
During the Friday hearing, Adv Maqakachane explained that the reason he failed to file answering papers was because, after receiving the written judgment from the review application, his client instructed him to file a recusal application.
“Let me state that when we were before you initially on the case management, we raised several preliminary points, which the Lordships decided would be argued before we got into the merits. I recall that they were duly disposed of, and the Lordships directed that the matter must proceed on the merits.
“It was when I was going through the judgment of the Lordships that some of the grounds for recusal came up, which my client instructed me to launch in this application. So, it was substantially based on what came up from the inspection of the file that, indeed, his Lordship — or the Chief Justice — had actually appointed their Ladyship and their Lordships. So, it is in those circumstances that the recusal application came up in that order.
“… The substance and cost for this application arose post the decision of the Lordships, and secondly, the question of recusal is neither technical nor preliminary. It is fundamental to the very proceedings themselves. But I understand that perhaps it would have been wise to raise these issues earlier so that they could be decided by the Lordships in the case management conference.
“But as I indicated, Your Lordship, it was only after the judgment and upon inspection of the record that I got the instructions to file this case,” Adv Maqakachane submitted.
However, Adv Sesinyi Pule, representing the respondents, countered that if DPP Motinyane had any issues with the judgment, she should have taken the matter to the Court of Appeal, since the Constitutional Court is now functus officio (it has fulfilled its duty and cannot revisit its decision).
“The issue of the recusal application filed post-judgment — after preliminary issues had already been dealt with — implies that the court is now functus on those issues, because the judgment was issued, and the record was considered. So, it is not a matter of coming back to this court. It’s about filing an appeal if there is an issue,” Adv Pule argued.
Following submissions from both sides, the court adjourned for 15 minutes to deliberate.
When the court reconvened, Justice Kopo announced that the judges had decided to allow the recusal application to proceed.
“We have conceded the reasons given for instituting the recusal application and we accept that it can be heard. However, we are only allowing the application on the condition that the applicant pays the costs associated with the late filing.
“We considered whether to strike it out or allow it. We decided to allow it, but with the cost sanction. The applicant must file written submissions by 6 June, and the respondents must file theirs by 18 June. The arguments will be heard on 1 July,” Justice Kopo ruled.