Tefo Tefo
THE Court of Appeal will tomorrow hear a case in which Lieutenant-Colonel Tefo Hashatsi appealed a High Court ruling dismissing his bid to have the Southern African Development Community (SADC) Commission of Inquiry into Lesotho’s instability declared illegal.
The Lesotho Defence Force (LDF) Special Forces commander had filed an urgent application on 16 October 2015 before the High Court challenging the commission’s legitimacy, and arguing that it had violated terms of its formation by hearing evidence in South Africa while it was established by a Lesotho law.
Lt-Col Hashatsi also accused the commission, and in particular its chairperson Justice Mpaphi Phumaphi, of bias against him. Lt-Col Hashatsi accused the Botswana judge of making him appear as if he was the prime suspect in the killing of former LDF commander Maaparankoe Mahao.
Lt-Gen Mahao was shot dead on 25 June 2015 by his army colleagues while being arrested for allegedly being the ringleader of a group of soldiers who had plotted to topple the LDF command.
Prime Minister Pakalitha Mosisili asked SADC for help in probing the fatal shooting, resulting in the establishment of the bloc’s Commission of Inquiry led by Botswana judge, Justice Mpaphi Phumaphi. The inquiry took place between 31 August and 23 October 2015 and Dr Mosisili tabled the commission’s report before parliament on 8 February 2016.
Justice Tšeliso Monaphathi on 8 February 2016 dismissed Lt-Col Hashatsi’s application on the grounds that, among others things, the case was brought to court prematurely because he could have waited for the report of the commission of inquiry to be released.
Lt-Col Hashatsi subsequently appealed to the Court of Appeal and he alleges in his appeal that: “The learned judge erred and misdirected himself in holding as he did that the proceedings were brought pre-maturely in view of the fact that as at the time the proceedings were instituted, namely on 16 October 2015, the unchallenged evidence indicated that the commission was due to complete its business on 21 October 2015.
“The learned judge erred in dismissing the application when there was evidence proving and substantiating the relief sought. Had the learned judge brought his mind to bear on the evidence as a whole he should have granted the application,” he further stated.
He also alleges the judge had erred in holding that the second and third respondents Justice Mpaphi Phumaphi and the commission respectively, were entitled to sit and hear evidence in the Republic of South Africa. The commission gathered evidence in Thaba-Nchu, South Africa where exiled opposition leaders and members of the army gave testimonies.
“The learned judge ought to have held that such sitting and hearing was ultra vires the provisions of section 3 of the Public Inquiries Act read with legal notices number 75 and 88 of 2015 that defined the nature and extent of their mandate,” read the grounds of appeal.
Lt-Col Hashatsi further alleges that Justice Monaphathi had erred by not reviewing and setting aside the proceedings of the second and third respondents “as having been vitiated by an error of law in that he should have held that the proceedings before these respondents should have been conducted according to the provisions of the Public Inquiries Act”.
Lt-Col Hashatsi also says Justice Monaphathi should have ruled in his favour that it was wrong that one Mr Waly participated in the commission’s proceedings as a commissioner when he was supposed to be a prosecutor.
He also argues that the judge should have disqualified the commission for its alleged bias as envisaged by common law and the Public Inquiries Act of 1994.