Top lawyer demands M3.5 million from state
…appeals “disproportionate” M150,000 High Court award for unlawful arrest, contumelia
Hopolang Mokhopi
PROMINENT lawyer Khotso Nthontho has appealed against a M150,000 High Court damages award for his 2016 arrest and prosecution, arguing the sum is a fraction of the M3.5 million the state owes him.
Mr Nthontho has petitioned the Court of Appeal to overturn the judgment in the case in which he sued the Director of Public Prosecutions (DPP), the Attorney General, the Commissioner of Police and the Commander of the Lesotho Defence Force (LDF).
He had claimed M3,516,500 in all – M1.5 million for contumelia, M1.3 million for malicious prosecution, M300,000 for loss of business, M200,000 for unlawful arrest, M126,500 in rental costs and M90,000 for repairs to his house and car.
The High Court awarded him M100,000 for unlawful arrest and M50,000 for contumelia. It dismissed his claims for malicious prosecution, rental costs and loss of business.
Aggrieved, Mr Nthontho now argues that the awards were inadequate and that the judge misdirected herself on several aspects of his claim.
On the arrest, he contends that the High Court failed to weigh the conditions of his detention and the psychological toll on him as an attorney and an officer of the courts of Lesotho and South Africa. The circumstances, he says, warranted a substantially higher award.
On contumelia, he argues that the court disregarded the extent of the publicity his arrest attracted.
“The awarding of Fifty Thousand is clearly disproportionate to the damage done. Under the mentioned circumstances, the court ought to have granted the requested amount of M1,500,000,” he says in his notice of appeal.
Mr Nthontho is also challenging the dismissal of his M1.3 million malicious prosecution claim, arguing that the respondents were dominus litis – the parties in control of the criminal proceedings – and that they declined to take the matter to trial even after he asked them to, leaving him to apply for a permanent stay.
“The learned judge erred and misdirected herself in finding that no case for malicious prosecution was made while the respondents were dominus litis in the criminal matter where they indicted the appellant and chose not to proceed with the matter, even when request to prosecute the matter is made after two years until the court granted permanent stay,” he says.
He further argues that the prosecution rested on no evidence and was mounted to pressure him into abandoning the soldiers he was representing.
“Clearly, the respondents did not have a case (no evidence), except to harass and pressure the appellant not to represent the soldiers at the time. The case was brought against the appellant for ulterior purposes as it is. The honourable court erred in failing to grant the requested amount (M1,300,000).”
He is also appealing the refusal of M126,500 in rental costs, which he says he incurred after moving his family to a secure residence in Ladybrand, South Africa, out of fear for their safety.
“The house in which he lived was wrecked the very same night he was arrested leaving an inescapable conclusion that the damage was done by the same elements of the rogue Lesotho Defence Force at the time,” his papers state.
The dismissal of his M300,000 loss-of-business claim is the final ground of appeal. Mr Nthontho says he could not work properly while facing criminal charges from outside the country, returning only for remands, yet continued to carry staff and office costs. He was ultimately forced to return files and refund clients’ fees.
Arrest and prosecution
Mr Nthontho was arrested by members of the Lesotho Mounted Police Service at his offices at Husteds Building at about 4pm on 12 February 2016, according to his court papers.
He was detained at Airfield Police Station in Lifofaneng, where, he says, his family — including his wife — was barred from seeing him. Lawyers who went to consult him were also allegedly turned away.
He was released later that night on an order by now-retired Justice Semapo Peete and escorted to the border by police as armed soldiers looked on. His house in Masowe I and his BMW 320i were vandalised the same night.
Mr Nthontho was initially charged with perjury and later with fraud and contempt of court. The charges arose from his representation of Corporal Mohatlane in a High Court review application and before a Court Martial, where the soldier faced a mutiny charge.
He was last remanded in the Maseru Magistrates’ Court in April 2016 after the case was referred to the High Court, but it never went to trial. After more than a year of silence, he wrote to the DPP in August 2017 asking that a trial date be set.
He then applied for a permanent stay of prosecution, relying on Section 12(1) of the Constitution and arguing that the delay had violated his fair trial rights. The application was granted unopposed on 22 September 2017.
His arrest drew heavy local and international publicity, his papers say, including coverage by the Lesotho Times, Public Eye, The Post and eNCA, as well as condemnation from the Law Society of South Africa and Lawyers’ Rights Watch Canada.
The appeal will be heard tomorrow.
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