Special Forces commander, Lieutenant-Colonel Tefo Hashatsi, on Friday filed an urgent application in the High Court to block the ongoing SADC inquiry citing its “bias” against him
Lt-Col Hashatsi rushed to the court after being told he was to appear before the commission again this week.
In his application, Lt-Col Hashatsi says when he first went before the 10-member probe team on 17 September 2015, the commissioners made it clear he was the prime suspect in the killing of former Lesotho Defence Force (LDF) commander Lieutenant-General Maaparankoe Mahao.
The “clear stance” taken by the commission’s chairperson Justice Mpaphi Phumaphi against him violated his constitutional right to be presumed innocent until proven guilty by a competent court, he further states.
The LDF officer says Justice Phumaphi appears to have already concluded that he was responsible for Lt-Gen Mahao’s murder due to his line of questioning.
In the application, he cites Prime Minister Pakalitha Mosisili, Justice Phumaphi, the SADC Commission of Inquiry and Attorney General Tšokolo Makhethe, as first to fourth respondents, respectively. Lt-Col Hashatsi wants the respondents to give reasons why the inquiry should not be discontinued “for lack of impartiality and failure to conduct proceedings in terms of the Public Inquiries Act 1 of 1994”.
He further wants the probe to be stopped because some of its members were not “legally commissioned”, and says the respondents should explain to the court:
- Why the proceedings should not be reviewed and set aside as having been vitiated by an error of law that they did not have to be conducted according to the Public Inquiries Act except only to the extent of using the provisions for the compulsion of witnesses under that law.
- Why the proceedings should not be reviewed and set aside because of the participation of Mr Waly and everyone else who was not appointed as a commissioner in terms of Legal Notice 75 of 2015.
Lt-Col Hashatsi 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 court to order 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 also wants the respondents to show cause why the commission should not be “retrained and interdicted” from making any findings in relation to him, and also stopped from summoning him again “pending the outcome of this application”.
To support his application, Lt-Col Hashatsi wrote a lengthy affidavit in which he gave details of why he launched the court action.
He also states the application was made in his personal capacity and not as an LDF officer.
Part of his affidavit reads: “As will be evident from the facts that follow, I have been adversely affected by the proceedings of the 2nd and 3rd respondents and in consequence, I have a direct and substantial interest entitling me to seek the reviewing and setting aside of Paragraph 4 of Legal Notice 75 of 2015.”
The said paragraph reads: “The Commission of Inquiry shall make a written report and submit the same to the chairman of the Southern African Development Community (SADC) Organ on Politics, Defence and Security Cooperation within sixty (60) days of the commencement of its work, or such other extended date as the prime minister may agree to, upon a written request to the prime minister by the chairman of the commission.”
Lt-Col Hashatsi says when he appeared before the commission on 17 September, he was treated unfairly by Justice Phumaphi and Commissioner Ndlovu.
He charges: “Whereas I understood that I had to answer questions, I expected they would be fair and legitimate especially those posed by the commissioners.
“Strangely, Commissioner Ndlovu and Justice Phumaphi confronted me with allegations that I had been present when Brigadier Mahao was killed and that I was a suspect.”
Lt-Col Hashatsi quotes some of the questions posed to him by Justice Phumaphi which he says indicate he is already considered a culprit in the 25 June 2015 murder of Lt-Gen Mahao by soldiers who had come to arrest him for suspected mutiny.
He quotes the questions and answers as follows:
- Q. I put it to you that you were at the scene?
- A. It is your opinion…
- Q. You are not willing to shed light and yet you were there?
- A. No comment.
- Q. I put it to you that you were there?
- A. No comment.
“I need to point out that before Justice Phumaphi commenced this line of cross-examination, I had specifically indicated that I would not answer any questions relating to the death of Mahao as the answers might tend to incriminate me.
“I am legally advised and I verily believe that this line of questioning was a deliberate attempt by Justice Phumaphi to depict me as a criminal which was a violation of my rights.
“In terms of Sections 16 (3) of the Act, I enjoy privilege from self-incrimination and it is extremely unfair and unjust and unlawful for a judge to ask questions answers of which might incriminate me even after claiming the privilege,” he said.
He further argues Justice Phumaphi’s questions suggested he had already taken a position on the matter.
Lt-Col Hashatsi added: “To return to the irregularities that are exposed by the cross-examination of Justice Phumaphi on me, and lack of impartiality of the commission, I state that the things that Justice Phumaphi put to me were never said by any of the witnesses who testified in public.
“This suggests that Justice Phumaphi and his commission have been meeting people and listening to them outside the provisions of the Act and thus acting unfairly and unjustly.”
He further alleges in questioning him, Justice Phumaphi was contravening provisions of the Public Inquiries Act and as such, “manifesting bias” against him.
Challenging his second invitation to the commission, Lt-Col Hashatsi says: “I have since learnt that the commission wants me to come back to it and again I fear it will repeat its irregular practice of unfairness and ambush which arise from its lack of impartiality.
“I am told by Liaison Officer S/Lt Moloi that he has been warned that I will be called back to the commission on 21 October 2015.
“I do not trust this commission anymore for obvious reasons.”
Lt-Col Hashatsi says Justice Phumaphi stated publicly that the commission was not a Lesotho but SADC inquiry.
“Justice Phumaphi’s statement meant he was not bound by the Public Inquiries Act 1 of 1994.
“That being the case, the commission is acting arbitrarily, unfairly and as it pleases as it is a SADC commission not a Lesotho commission.
“Indeed, Justice Phumaphi stated the only reason the commission was domesticated by Legal Notice 75 of 2015 was to enable it to compel witnesses to come before it. It is clear therefore, that the Phumaphi Commission is acting unlawfully outside the Public Inquiries Act 1 of 1994 by design.
“Justice Phumaphi only picks such provisions of the Act which are convenient to him, namely compulsion,” he further charges.
Another reason why Lt-Col Hashatsi says he does not want to appear before the commission anymore is fear of lawsuits.
He referred to the lawsuit in which Brigadier Ramanka Mokaloba is being sued for defamation by King’s Counsel Haae Phoofolo.
The litigation comes after Brigadier Mokaloba alleged during the commission’s proceedings that Advocate Phoofolo stole money from Central Bank where he was employed in the 1980s.
Adv Phoofolo is demanding M400 000 in damages from Brig Mokaloba.
“Again, I could also be exposed to defamation suits like Brigadier Mokaloba,” he stated.
Lt-Col Hashatsi further accused the commission of ignoring its terms of reference by allowing former police commissioner Khothatso Tšooana and Basotho National Party (BNP) Deputy Leader Joang Molapo to testifying “to a lot of other irrelevances”.
Lt-Col Hashatsi concludes: “I am making this affidavit to protect my rights guaranteed by the Constitution, the Act, common law and the SADC Treaty itself under its principles, and in support of this application.”
Meanwhile, the High Court on Friday granted an interim order that the application should be heard on an urgent basis.
Attorney Qhalehang Letsika is representing Lt-Col Hashatsi in the case.