…as Appeal Court orders Constitutional Court to hear his wife’s case challenging his arrest
Moorosi Tsiane / Hopolang Mokhopi
INCARCERATED Basotho Covenant Movement (BCM) leader, Dr Tšepo Lipholo, has been handed a lifeline after the Court of Appeal ruled that the Constitutional Court (ConCourt) does, in fact, have the power to hear a case challenging his arrest.
The apex court found that the ConCourt had misdirected itself when it dismissed an earlier application filed by Dr Lipholo’s wife, ‘Mathapelo Lipholo, on grounds that it lacked jurisdiction.
At the centre of the dispute is Dr Lipholo’s explosive petition to the United Nations, demanding the return of Basutoland—territory he claims has been unlawfully occupied by South Africa for 62 years. The petition triggered fears of political persecution, prompting Ms Lipholo to seek an order barring both the Lesotho and South African governments from arresting or harming her husband.
However, on 2 June 2025, the ConCourt dismissed her application, ruling that matters touching on foreign relations fall under the Executive’s purview. The judgment was delivered by Chief Justice Sakoane Sakoane and Justices Molefi Makara and Mabatsoeneng Hlaele.
Unrelenting, Ms Lipholo appealed the decision to the Court of Appeal. A five-member panel led by Court of Appeal President Justice Kananelo Mosito, sitting with Justices Petrus Damaseeb, Phillip Musonda, Johann van der Westhuizen, and Realeboha Mathaba, reversed the ruling—holding that the ConCourt does have jurisdiction, at least over the domestic authorities cited in the matter.
Justice Mosito ruled that the ConCourt had erred by entirely washing its hands of the case simply because South Africa was mentioned.
“You can’t say you have no jurisdiction because the Republic of South Africa has been cited. The appeal fails in part and is upheld in part… The High Court had jurisdiction over the Government of Lesotho and its functionaries—it could not be heard to say otherwise,” Justice Mosito said.
Ms Lipholo’s lawyer, Advocate Fusi Sehapi, argued that the ConCourt gravely misdirected itself by “dodging jurisdiction” after already delving into the merits of the case.
“It had already determined part of the matter by declaring Dr Lipholo a fugitive. That was a definitive finding on his rights,” Adv Sehapi submitted, urging that the case be remitted to the ConCourt for a full hearing.
However, the state—represented by Advocate Letsie Moshoeshoe—maintained that the ConCourt had acted properly, insisting that the issue touched on foreign policy and therefore lay outside domestic judicial competence.
Meanwhile, Dr Lipholo remains in custody following his 4 July 2025 arrest. He faces serious charges including treason, sedition, human trafficking and insulting the Royal Family, alongside four other BCM members accused of plotting to overthrow the government. However, the four remain fugitives from justice.
His petition before the Maseru Magistrates Court, seeking his release from Maseru Central Correctional Institution (MCCI), also suffered a setback on Friday.
Senior Resident Magistrate Thamae Thamae recused himself from hearing Dr Lipholo’s application for release under the Speedy Court Trials Act of 2002. This law states that a person shall be released from custody if he is detained for more than 60 days without his trial proceeding.
Delivering his ruling on Friday, Magistrate Thamae said while his withdrawal could delay proceedings, stepping aside was necessary to preserve the integrity of the judicial process, citing the principle that “justice delayed is justice denied”. The case has been referred back to the Criminal Registry for reallocation.
The Crown, which opposes Dr Lipholo’s application for release, had applied for the magistrate’s recusal, alleging a possible personal relationship between him and Mpiti Thamae, one of the four suspects who remain at large. The prosecution argued that this created an apprehension of bias, violating Dr Lipholo’s constitutional right to a fair trial.
Three police officers testified in support of the Crown’s claim, though their evidence was largely based on unverified information. In contrast, Mpiti Thamae’s mother, called by the defence, denied knowing the Magistrate or any family connection, and her testimony was deemed credible.
Magistrate Thamae ruled there was no factual basis for claims of bias, noting that Mpiti Thamae was not a party to Dr Lipholo’s case. He referred to legal precedents establishing that recusal depends on whether a reasonable and informed person would perceive a lack of impartiality.
Although confident in his impartiality, Magistrate Thamae said he stepped down to avoid further controversy and ensure fairness, formally returning the case for reassignment to another judicial officer.