…says it is probing a syndicate of moles
THE Minister of Law and Constitutional Affairs, Lebohang Hlaele, has warned that the heavy hand of the law is fast descending on government and court officials who are in the habit of leaking confidential information and documents.
Mr Hlaele said this in a Friday interview with the Sunday Express following the recent leaking of a February 2017 email between Justice Moses Chinhengo and a senior High Court official.
The minister said investigations into the leaking of the email have implicated several members of the staff of the judiciary and disciplinary measures against them are underway.
Former Court of Appeal Assistant Registrar, ’Matieho Mothobi, was recently grilled by the police after criminal charges were laid against her for allegedly leaking confidential court information.
Ms Mothobi, worked as the Court of Appeal Assistant Registrar until 21 June 2018, when she took up a new post as mediator at the High Court. She now stands accused of leaking confidential documents, including a controversial February 2017 email, between her and the Zimbabwean born judge, Justice Chinhengo.
The email suggests that Justice Chinhengo is friends with Justice Kananelo Mosito, in whose favour he ruled, in a recent case dealing with the latter’s long stalled appointment to lead the Court of Appeal for the second time.
Senior Inspector Rantoane Motsoetla, from the police public relations office, confirmed to our sister paper, the Lesotho Times that Ms Mothobi had been hauled to police headquarters in Maseru for questioning over the allegations.
“I can confirm that ‘M’e Matieho Mothobi was called by the police for questioning on Monday. She was not arrested but merely called to help the police with investigations,” Snr Inspector Motsoetla to our sister paper the Lesotho Times, adding she had been released the same day after “successfully assisting us with the investigations”.
Justice Chinhengo recently refused to recuse himself from a case involving Judge Mosito, the former Court of Appeal president, despite protestations by Attorney Qhalehang Letsika, Advocates Karabo Mohau, Motiea Tele and Zwelakhe Mda that he was conflicted.
The leaked email suggests that Justice Chinhengo is friends with Justice Mosito and should have recused himself from the case in which the Law Society of Lesotho had petitioned the apex court for an order that Justice Mosito’s appeal, against a Constitutional Court judgement which blocked his reinstatement, be set and heard within 14 days from the 2nd of October 2018.
Dr Mosito, the Prime Minister, Minister of Law and Constitutional Affairs, Minister of Justice and Correctional Service, Attorney General, His Majesty King Letsie, Attorney Letsika and Advocates Mohau, Tele and Mda and the Registrar of the High Court and Court of Appeal were cited as 1st to 11th respondents respectively in the Law Society’s petition.
Justice Chinhengo ruled in favour of the Law Society, ordering that the appeal be heard within 20 court days. This means the appeal is now due to be heard before 29 October 2018. Justice Chinhengo delivered his judgment last Tuesday. The email was then leaked shortly afterwards on Thursday.
Justice Chinhengo ruled that the lawyers’ argument that he could be conflicted could not be sustained and dismissed their recusal application. But the leaked 21 February 2017 email between him and Ms Mothobi seems to suggest otherwise.
The email, was in relation to a case involving the appointment of Court of Appeal judges to hear Dr Mosito’s appeal against a Constitutional Court judgment that had nullified his re-appointment as Court of Appeal president. Judge Chinhengo, who sits in the Court of Appeal, appeared in the main to want to recuse himself from the case.
“I have previously recused myself from matters involving Dr Mosito,” Justice Chinhengo wrote in the e-mail to Ms Mothobi.
“Since my appointment to the Court of Appeal bench and working with Dr Mosito, albeit for a short period, I developed a fairly close friendship with him at a personal level. My judgement may be coloured by that relationship.
“I lecture part time in procedural law at the University in Zimbabwe where Dr Mosito is an external examiner. He being the Dean of the Faculty of Law at the University of Lesotho, his appointment as external examiner was on my recommendation in 2015. I would rather not sit in his appeal for these reasons unless there are compelling reasons that I do so,” Justice Chinhengo states in the email.
Two months ago, a Government Printers employee was allegedly tortured by the police after his arrest in connection with the leaking of a government gazette which announced the appointment of South African judge Justice Yvonne Mokgoro as acting president of the Court of Appeal.
The suspect, Mohau Lebajoa, in August this year appeared before the Magistrate court over the leaking of the government gazette. Senior Resident Magistrate Phethise Motanyane released Lebajoa on bail.
Lebajoa was accused of contravening Section 4 subsection 1 (a) of official Secrets Act No. 36 of 1967 in that he prematurely leaked a government gazette which was due for publication. He is accused of leaking the gazette to Assistant Superintendent Ramahetlane Percy Bereng, an officer at the Lesotho Correctional Service (LCS).
The leaked government gazette was used by three prominent lawyers as the basis for their successful March 2018 lawsuit against the appointment of Justice ’Maseshophe Hlajoane as the acting Court of Appeal president.
The government gazette, which was never made public, stated that Justice Mokgoro had been appointed to the post of acting president of the Court of Appeal on 27 February this year. Justice Mokgoro did not assume the position after the Thomas Thabane administration decided to appoint Justice Hlajoane instead. The appointment of Justice Hlajoane was nullified after a constitutional court challenge by three prominent lawyers.
The three lawyers Advocates Mda and Mohau and Attorney Letsika successfully argued in March this year that the appointment of Justice Hlajoane violates the constitution because she was appointed when the government had already appointed Justice Mokgoro to the same position on 27 February this year.
Dr Thabane and his lawyers have argued that the three lawyers should be prosecuted on the grounds that they had based their case on a government gazette that had been illegally obtained as it was never officially published.
PM Thabane wants the three lawyers charged for violating the Official Secrets Act and the Internal Security Act. He also accused the trio of being a dangerous group of people who sought to destabilise the country by illegally acquiring and using confidential state documents.
It was against the background of investigations into the leaking of the government gazette that Asst-Supt Bereng and Mohau Lebajoa who works at the government printers were in August called in by the police for questioning.
Asst-Supt Bereng subsequently fled from the police headquarters while awaiting his turn to be questioned. He alleged that he had fled in fear of being tortured after seeing that Mr Lebajoa had been tortured by police during his interrogation.
And Mr Hlaele yesterday said several court officials were being investigated as there appeared to be a syndicate that is leaking official secrets.
“The government notes with concern that there is an emerging trend of illegal dissemination of official state correspondence and/or documents,” Mr Hlaele said.
“This trend which has reared its ugly head in all litigations involving the same legal practitioners is worrying.
“The government categorically censures the unpatriotic and criminal leaking of internal communications by court officials. In particular, the government has noted with grave concern, the unauthorised publication of an e-mail addressed to an Assistant Registrar of the Court of Appeal and copied to two judges of the court.
“I cannot be sure of how many officials are being investigated but so far one has been called by the police. We don’t know what the investigations will yield but we are sure that this is an act that was committed by a syndicate.”
Mr Hlaele called the leaking of the February 2017 email between Ms Mothobi and Justice Moses an act of deceit.
“The said correspondence was leaked to the public by a politically-actuated official whose responsibility is to safeguard the very information. The obvious ill-intention of that official was to compromise both the Judge presiding and the Court of Appeal itself.
“What is strange about this perpetrator of this evil mission is that, he or she does not disclose circumstances in which the e-mail was authored,” Mr Hlaele said.
He said the judiciary institution is run by court officials whose roles are defined under the Administration of the Judiciary Act No. 16 of 2011 which has a strict code of ethics that attaches to their scope of work particularly when dealing with sensitive correspondence on judicial administration.
“The act clearly provides for the promulgation of ethical principles for the judiciary that aim to enhance integrity and independence of the Judiciary amongst others,” Mr Hlaele said.
He said the leaked e-mail is conveyed through a private e-mail despite the fact that it is communicating official business and investigations are under way to probe the authenticity and the culprit behind its illegal dissemination.
“This trend which has reared its ugly head in all litigations involving the same legal practitioners is worrying. More recently, the same official was reported by the media to have disclosed information regarding the inner workings of the same Court.
“A major cause of yet another litigation involving the same lawyers who have vouched to frustrate the administration of justice was the securing of an unpublished government gazette which was illicitly disseminated for public consumption through unauthorised channels.
“The institution of the judiciary is marred by numerous challenges which can only be remedied if the citizens support the government’s initiative to make the agents of the institution of judiciary accountable and compliant with the code of ethics which govern their scope of work,” Mr Hlaele said.