Mohalenyane Phakela

THE Court of Appeal has set 30 October 2020 as the date for delivering judgement in the state’s appeal against an October 2019 High Court judgement ordering it to pay fugitive former National Security Service (NSS) boss, Colonel Tumo Lekhooa’s salary and benefits after he was prematurely removed from his post before the expiry of his contract.

On Thursday, a panel of judges including the apex court court’s president, Kananelo Mosito, said they would determine the appeal on the basis of the court papers filed by both the state and Mr Lekhooa. This after Mr Lekhooa’s lawyer, Advocate Motiea Teele, indicated that he would no longer be able to come to court to argue his client’s case due to ill-health.

The other judges in the matter are Justices Phillip Musonda (Zambia), Moses Chinhengo (Zimbabwe), Tafuma Mtshiya (Zimbabwe) and Johann Van Der Westhuizen (South Africa).

Mr Lekhooa was appointed NSS director general by then Prime Minister Pakalitha Mosisili in September 2016 on a three-year contract which ought to have expired in September 2019. But upon assuming power, Mr Mosisili’s successor, former Prime Minister Thomas Thabane, reassigned him to his old post as director of military intelligence in July 2017.

Mr Lekhooa later fled to South Africa in November 2017 allegedly to escape the government’s attempt to assassinate him. But the Thabane government insisted that he fled to escape prosecution for various crimes including the 25 June 2015 murder of former army commander, Lieutenant General Maaparankoe Mahao.

Before his flight, Col Lekhooa had challenged his removal from the NSS in the High Court in August 2017 and he continued to pursue the case from South Africa. He wanted reinstatement or to be paid out for the remaining 26 months of his NSS contract.

A High Court bench comprising of Justices Semapo Peete, Molefi Makara and Moroke Mokhesi granted his petition in October 2019.

Dissatisfied with the High Court judgement, the government appealed to the apex court.

Mr Thabane, Defence and National Security Minister Prince Maliehe and Attorney General Haae Phoofolo are the first to fourth applicants respectively.

The matter was initially supposed to be heard during the Court of Appeal’s first sitting of the year in May. But it failed to proceed after Adv Teele said he had lost contact with Col Lekhooa. It was then postponed to the October session.

But it failed to take off on Thursday due to Adv Teele’s ill-health. It will now be decided on the basis of the court papers already filed by both sides. This after the appellants’ lawyer, Monaheng Rasekoai, told the court that he and Adv Teele had agreed that the appeal be decided on the basis of the papers filed by both sides.

“Adv Teele said that he is indisposed. He has flu and has therefore asked that the matter be decided based on our heads of arguments. We have no dispute on his proposition,” Adv Rasekoai told the court.

Justice Mosito granted the request on condition that both parties submit a written document showing that they had agreed that the matter be decided on the basis of their court papers.