…as he argues Tenth Amendment cannot revive Ombudsman’s expired term
Moorosi Tsiane
PRIME Minister, Sam Matekane, has urged the Constitutional Court to dismiss Ombudsman, Advocate Tlotliso Polaki’s bid to reclaim her office, arguing that the Tenth Amendment to the Constitution cannot breathe new life into an expired four-year term.
Adv Polaki approached the Constitutional Court in June seeking to stop Mr Matekane from removing her from office after her four-year term expired on 30 June 2026.
While she secured an interim order to remain in office pending the finalisation of her case, she has allegedly been locked out and also stripped of security. Adv Polaki has now instituted contempt of court proceedings against Mr Matekane.
Her main constitutional case challenging removal form office was heard on Tuesday before a three-member panel comprising Chief Justice Sakoane Sakoane and Justices Mafelile Ralebese and Moroke Mokhesi.
Adv Tekane Maqakachane, representing Adv Polaki, argued that the Tenth Amendment automatically preserved the tenure of constitutional office bearers who were serving when the reforms came into force on 13 August 2025.
“The Tenth Amendment to the Constitution Act of 2025 automatically extended the tenure of constitutional office bearers serving when the reforms came into force on 13 August 2025.”
He argued that the constitutional reforms created a transitional framework allowing Adv Polaki to remain in office until Parliament enacted legislation required under the new constitutional order.
He relied on Section 163(1), which provides: “A person who before the coming into operation of this Constitution holds an office established under this Constitution shall continue to hold the office in terms of this Constitution subject to— (a) consistency and conformity with this Constitution; and (b) any amendment or repeal of the legislation applicable to his or her office.”
Adv Polaki was appointed Ombudsman by His Majesty King Letsie III, acting on the advice of former Prime Minister Dr Moeketsi Majoro, on 1 July 2022 for a four-year term ending on 30 June 2026.
She maintains that the constitutional reforms fundamentally altered her legal position by automatically extending her tenure during the transition period.
Mr Matekane, however, through his lawyer, Adv Motiea Teele KC, argued that Adv Polaki’s tenure came to a natural end under Section 134 of the Constitution and that the transitional provisions relied upon by her were never intended to extend the tenure of constitutional office holders indefinitely.
Adv Teele told the court that Adv Polaki’s interpretation amounted to a fundamental misreading of the Constitution.
“It is my submission that an office is created in terms of Section 134 of the Constitution.
“It is my respectful submission that the office is consistent or is in conformity with the Constitution. Our stance is that it is one Constitution but amended. It must be read on the understanding that it is the same Constitution, not two Constitutions,” Adv Teele argued.
He submitted that the Tenth Amendment neither abolished nor replaced the Office of the Ombudsman.
Instead, he argued, Section 134 remains intact and continues to regulate the existence of the office, while the relevant legislation governs the Ombudsman’s tenure.
“Section 134 of the Constitution provides that there shall be an office of Ombudsman. That opening sentence is the only gateway into Section 163 for the applicant—that she is occupying an office established by the Constitution.”
He further argued that Parliament intended the constitutional reforms to operate prospectively rather than retrospectively.
“Our submission is that even in respect of transitional arrangements, Parliament is speaking prospectively. It is legislating going forward unless it appears clearly from the provisions that it intended otherwise.”
According to Adv Teele, the continued existence of Section 134 means that it remains applicable to Adv Polaki’s position.
“Section 134 is still there on the statute books. It is the provision that governs her position. The plot does not stop merely because there has been an enactment of the Tenth Amendment.”
Adv Polaki has argued that Section 163(2) protects constitutional office bearers from being required to vacate office during the transition to the amended constitutional order.
Adv Teele, however, said that interpretation ignored the precise wording of the provision.
“The provision speaks about the expiration of any period. It does not say the expiration of any contract. It says the expiration of any period.”
He argued that a person seeking protection under Section 163(2) must first establish that the constitutional or statutory provision governing the office actually requires that person to vacate office.
“It entails exactly that first you have to establish that there has been or there is a law or a provision of the Constitution that requires a person to vacate his or her office at any period.”
He submitted that those requirements did not apply to the Ombudsman in the manner suggested by Adv Polaki because the office is constitutionally protected under Sections 134 and 155.
“I submit that irrespective of whatever period, the Ombudsman could not be required to exit office. She would leave office when her term would have been exhausted by a fraction of time.”
Adv Teele further argued that the continuation contemplated under Section 163(2)(b) was not automatic.
“It is my contention that the continuance into office under Section 163(2)(b) is not automatic. It is subject to satisfying the particular requirements set out in that paragraph.”
He also rejected Adv Polaki’s argument that she was entitled to “transition” into a new constitutional order.
According to Adv Teele, there was no new office into which the Ombudsman had to transition because the Office of the Ombudsman remained constitutionally intact.
“As far as the Ombudsman is concerned, the law is still there. She can continue in accordance with the provisions of Section 134 provided in the Ombudsman Act.”
He said there had been no constitutional vacuum requiring Adv Polaki to remain in office pending the implementation of the reforms.
“She hasn’t transitioned. She doesn’t transition. There’s no need for her to transition. The law and the principal law, in an entrenched fashion, still remain.”
Adv Teele ultimately urged the Constitutional Court to reject Adv Polaki’s application.
“The application should not be granted.”
The dispute stems from Mr Matekane’s appointment of Advocate Tlotliso Lebea as Ombudsman following the expiry of Adv Polaki’s four-year term.
Adv Polaki is challenging that move, maintaining that Section 163 of the Constitution, introduced through the Tenth Amendment, allows her to remain in office until the constitutional reforms are fully implemented and a new appointment process is established.
The Constitutional Court reserved judgment after hearing arguments from both sides. A date for delivery of the judgment will be announced.
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