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Constitutional Court reserves judgment

Nat Molomo

MASERU — The Constitutional Court on Friday reserved judgment in a case in which Justice ’Maseforo Mahase is suing the former prime minister over a report on the April 2009 mercenary attack on the State House and Makoanyane Military Barracks. The report was the result of a commission of inquiry chaired by retired Court of Appeal President Jan Steyn to investigate circumstances surrounding the events of April 22, 2009.

The then Prime Minister Pakalitha Mosisili set up the commission after a group of mercenaries slithered into Lesotho, attacked the State House and Makoanyane Military Barracks in an attempted coup. The plan to abduct the prime minister and topple the government was however foiled by security forces after gun battles that left four of the mercenaries dead. Mosisili presented the commission’s report in parliament in April 2010.

Justice Mahase took exception to sections of the report that questioned a judgment she made in a 2007 case that involved Makotoko Lerotholi, who is alleged to have been the brains behind the 2009 attacks.
Lerotholi and four others had been detained for allegedly attacking ministers’ homes in the aftermath of the 2007 election.

Justice Mahase ordered their release after the crown failed to charge them. The Justice Steyn report criticised Justice Mahase’s judgment. The report said Justice Mahase had released the accused in “circumstances that can only be described as unusual”. It said the procedure used to release the suspects was “flawed” and the judge had relied on an “incomplete record”.

Justice Mahase, the report noted, did not give the police or army a chance to justify why Lerotholi and his co-accused should continue to be held in custody. It further insinuated that had Lerotholi not been released by Justice Mahase, he would not have fled to South Africa from where he launched the April 22 attacks with the help of mercenaries from Mozambique and South Africa. Justice Mahase felt those comments constituted an attack on her integrity and the High Court.

She then approached the Constitutional Court seeking an order to compel the prime minister to have the sections removed from the report. In her affidavit the judge said the commission of inquiry had no right to review her judgment. She also pointed out that Mosisili should have not presented the report to parliament without first removing the sections that cast aspersions on her integrity as a judge.

She said if the prime minister was not happy with the way she had handled the Lerotholi case he could have used the Attorney General and Director of Public Prosecutions to take the matter for review or appeal.
Her application also cited Speaker of the National Assembly, the President of the Senate and the Attorney General as respondents. Two weeks ago three South African judges were appointed to hear the case.
Justices Ompheletse Moshidi, John Musi and Suled Potterrill reserved judgment on Friday.
They are now expected to make a ruling next week.

During the hearing on Friday the crown admitted that the government was wrong to have tabled the report that included remarks disparaging the judge in parliament. The admission was made by the crown’s Advocate Hendrick Viljoen SC appearing with Advocate Paul Farlam. Advocate Viljoen however denied that the Steyn Commission was intended to investigate the judiciary as Justice Mahase’s legal team of lawyers Advocate Zwelake Mda KC and Advocate Sakoane Sakoane had alleged.

Mda and Sakoane are also asking the court to declare that Attorney-General and his officers breached their constitutional duty to protect the courts and the judiciary when they assisted the commission in investigating the conduct of a judge. Sakoane said her client was not against the decision to table the report in parliament but the inclusion of the sections that attacked her.

He said the prime minister should have known that those sections were derogatory to the judge and impinged on the independence of the judiciary. “The Prime Minister accepted the holus bolus investigations and recommendations and placed them before parliament,” Sakoane submitted. He pointed out that the prime minister should have used his powers to remove the unflattering comments and adverse findings by the commission on the judge.

“The only reasonable inference to draw from this is that he did this because he was a target of the alleged attackers of the State House,” Sakoane said. “He wanted parliament to cast aspersions on the conduct, character and motives of the applicant (Justice Mahase) in the discharge of her duties.”

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