Tefo Tefo

A case in which Lieutenant-Colonel Tefo Hashatsi wants the SADC inquiry into the death of former army commander Maaparankoe Mahao declared illegal has been postponed to next month.

High Court judge Justice Tšeliso Monaphathi on Thursday deferred the matter to 18-19 January 2016 due to the unavailability of a lawyer representing one of the respondents.

Lt-Col Hashatsi’s case had started on Wednesday and was adjourned until the next day.

However, when the case continued on Thursday morning, Lt-Col Hashatsi’s lawyer, King’s Counsel Motiea Teele, said he had left some crucial documents at his Leribe office and asked the court to reconvene at 2:30pm. He hoped to have collected the files by that time.

But the proposition did not succeed because a lawyer representing the late Mahao’s wife, Senior Counsel Anna-Marrie de Vorse, said she would not be available at that time. Senior Counsel de Vorse said she had to leave for her home in South Africa that morning.

The case was then postponed to January next year.

Lt-Col Hashatsi on 16 October filed an urgent application seeking to block the proceedings of the inquiry as he accused it, especially its chairperson, Justice Mpaphi Phumaphi, of bias against him.

The Special Forces commander alleged in his court papers this bias was clear when he first appeared before the commission on 17 September when Justice Phumaphi suggested he participated in the killing of Lieutenant-General Mahao.

Lt-Gen Mahao was killed by members of the Lesotho Defence Force (LDF) on 25 June this year allegedly as he resisted arrest for masterminding a revolt against the army command.

After the killing, Prime Minister Pakalitha Mosisili requested the Southern African Development Community (SADC) to help establish the circumstances surrounding the shooting, leading to the Phumaphi-led commission.

Meanwhile, during Wednesday’s proceedings, King’s Counsel Molefi Ntlhoki told Justice Monaphathi that he did not have the powers to hear Lt-Col Hashatsi’s challenge.

Advocate Ntlhoki is representing Justice Phumaphi and the commission in the case, who Lt-Col Hashatsi has cited as second and third respondents.

The first respondent is Dr Mosisili, while Attorney General Tšokolo Makhethe is the fourth respondent. Ms ‘Mamphanya Mahao and civic group Transformation Resource Centre are fifth and sixth respondent, respectively.

Advocate Ntlhoki on Wednesday told the court told the court his clients wanted the case dismissed on points of law only.

“We did not dispute the merits at all because as far as we are concerned, they do not concern us. Ours is just a point of law. All we say is Lesotho is a member of SADC and as such, the third respondent (commission) was set-up pursuant to an agreement of SADC states of which Lesotho is a member.

“This regional organisation is concerned with, among others, security and instability of its member-states, and the person who approached his SADC partners was the first respondent, Prime Minister Pakalitha Mosisili.

“SADC did not just impose itself on Lesotho and I’m surprised because in the papers, the prime minister is cited together with the Attorney General but he has not filed any papers,” Advocate Ntlhoki said.

“When he is being sued by his own soldier, he doesn’t say ‘no, you cannot sue Phumaphi and the commission because I was the one who consulted SADC for the establishment of the commission’.

“The issue here is about the jurisdiction of this court.

“Does this court have jurisdiction over the second and third respondents?

“Does this court have the ability to decide on this matter as far as the second and third respondents are concerned?

“If this is a SADC commission, does the applicant (Lt-Col Hashatsi) have the capacity to seek the relief he seeks?

“He doesn’t have the right to bring these proceedings before court.”

On her part, Senior Counsel de Vos said Lt-Col Hashatsi was only entitled to seek the court’s intervention on matters that affected him as an individual.

“In his founding affidavit, he described what happened to him and thought the commission was not fair on him.

“The applicant is not entitled to any of the prayers that are of public interest; he is entitled to prayers that affect him directly,” she said.

Advocate de Vos also said Lt-Col Hashatsi had no right to challenge the admissibility of evidence obtained by the commission outside Lesotho because this did not affect him directly as an individual.

“He has no interest where the commission sits. If the commission wanted him to give evidence in Thaba ‘Nchu (South Africa), then he could have approached the court to challenge it because it would then be a matter that affected him directly,” she added.

In response, King’s Counsel Teele said the confusion was initiated by Justice Phumaphi when he said the commission was not a Lesotho inquiry, but SADC’s.

“As far as the commission is concerned, there is no remedy for the applicant under the Act (Public Inquiries Act).

“What is important here is that what is applicable is the Public Inquiries Act.

“It doesn’t matter whether one calls it the SADC Commission or the Lesotho Commission.

“Justice Phumaphi should have come and told this court why he conducted the commission the way he did,” he submitted.

The lawyer also noted Justice Phumaphi and the commission did not file any affidavits to refute the allegations levelled against them by Lt-Col Hashatsi.

Lt-Col Hashatsi’s challenge

Lt-Col Hashatsi wants the inquiry declared void because some of its members were not “legally commissioned”.

The officer further wants the court to rule that the commission acted beyond its powers when it conducted hearings in Thaba ‘Nchu, South Africa, from 1-7 October, where exiled opposition leaders and members of the army gave testimonies.

He also wants the commission to surrender evidence it gathered about him, to the Registrar of the High Court.

Part of the notice of motion also calls for the respondents to explain “why evidence and facts relating to him shall not be expunged from the record of the proceedings”.

Lt-Col Hashatsi further wants the respondents to show cause why the commission should not be “restrained and interdicted” from making any findings in relation to him”.

He also states the application was made in his personal capacity and not as an LDF officer.