Tefo Tefo
Justice Tšeliso Monaphathi on Friday rejected Transformation Resource Centre’s (TRC) claim that a case in which Special Forces Commander Lieutenant-Colonel Tefo Hashatsi wants the High Court to declare the SADC Commission of Inquiry illegal, was no longer relevant.
Lt-Col Hashatsi on 16 October 2015 filed an urgent application before the High Court challenging the legitimacy of the commission, arguing it had, among others, violated terms of its formation by hearing evidence in South Africa while it was established by a Lesotho law.
He also accused the commission of bias against him.
Lt-Col Hashatsi was one of several witnesses interviewed by the commission mandated by the regional bloc to establish the circumstances surrounding the killing of former army commander Maaparankoe Mahao.
Lieutenant-General Mahao was gunned down just outside Maseru by Lesotho Defence Force (LDF) members who had come to arrest him on 25 June 2015, for allegedly being the leader of a group of soldiers plotting to topple the army command. The military says he was shot as he resisted arrest.
After the killing, Prime Minister Pakalitha Mosisili asked the Southern African Development Community (SADC) to help probe the tragedy, resulting in a 10-member commission of security and legal experts from the region. The team was led by Justice Mpaphi Phumaphi of Botswana.
In his lawsuit, Lt-Col Hashatsi cites Dr Mosisili as first respondent, while Justice Phumaphi, the Commission and Attorney General Tšokolo Makhethe, and are second to fourth respondents, respectively. Lt-Gen Mahao’s wife, ‘Mamphanya, became the fifth respondent after asking the court to be part of the proceedings, while rights group TRC joined the case as ‘friends of the court’.
On 19 January 2016, a lawyer representing the TRC, Attorney Tumisang Mosotho, told the court there was no point in continuing with Lt-Hashatsi’s case because SADC had already made a resolution the previous day, which the Phumaphi report should be made public by 1 February 2016.
Attorney Mosotho also presented before the court, a communiqué issued by the SADC Double Troika on 18 January 2016 which, among other issues, indicated the regional body would not be bound by whatever decision was going to be made by the Lesotho High Court regarding the Phumaphi commission.
The court then asked Attorney Mosotho to prepare a formal application outlining why he believed the case was now mere academic or “moot”, and postponed the matter to 5 February 2016.
But Justice Monaphathi on Friday dismissed Attorney Mosotho’s application, saying he would give a full, written judgment on the issue tomorrow.
“This point on mootness fails and I’ll make a judgment on Monday at 11am,” Justice Monaphathi ruled.
The court also heard arguments on whether the Double Troika’s pronouncement should impact on the court’s decision.
During the proceedings, Lt-Col Hashatsi’s lawyer, King’s Counsel Motiea Teele urged Justice Monaphathi not to be influenced by the Double Troika’s communiqué. President Ian Khama of Botswana chaired the Double Troika Summit which issued the statement in question, in his capacity as head of SADC. Zimbabwe (outgoing chair), Swaziland (incoming chair), and the SADC Organ on Politics, Defence and Security Cooperation trio comprising Mozambique (chair), South Africa (outgoing chair), and Tanzania (incoming chair) was also represented in the summit held in Gaborone. South Africa’s deputy president Cyril Ramaphosa, who was mandated by SADC in 2014 to be the ‘Facilitator’ in Lesotho’s security and political challenges, also attended the summit.
In his argument, Advocate Teele said it was wrong for the Double Troika to make a determination on the legality of the court proceedings.
“I cannot imagine politicians saying they can interpret what is legal, and what is not legal.
“This court is singled out to say you can go ahead with your decision but your decision would not have any legal force. And these are politicians, for that matter,” Advocate Teele said, insisting it was wrong for Heads of State and Government to make a decision that undermines the rule of law.
“Political agendas should not be mixed with legal issues. The Double Troika is holding this court in contempt. It is a matter of this court to decide whether SADC and the commission enjoy immunity and privileges, not politicians.
“These are matters to be determined by courts of law, not politicians. I urge you strongly that you should not take heed of what appeared in paragraph six of the communiqué.”
The paragraph Advocate Teele was referring to reads: “The Double Troika Summit received a Mission Report from the SADC Facilitator and reiterated that SADC enjoys immunity as per the SADC Treaty and SADC Protocol on Immunities and Privileges, and urged the Kingdom of Lesotho to abide by the immunity provisions. Any court decision taken against the Commission of Inquiry is of no legal effect, and will not bind SADC and its institutions.”
On the other hand, a lawyer representing Justice Phumaphi and the Commission, Advocate Tebalo Potsane, said what appeared on the communiqué only strengthened his case.
“It simply means whatever decision made by this honourable court would not be enforceable.
“The prime minister acceded that SADC wouldn’t be bound by decisions of this court. I say he acceded because he was there when the decision was made,” he said.
King’s Counsel Haae Phoofolo, who represents ‘Mamphanya Mahao, also said the communiqué meant the court’s decisions would not have any effect.
“It would not be in the interest of this country if the court makes orders that are not enforceable.
“Courts will never make orders that would cause political chaos,” he argued.
However, Justice Monaphathi is tomorrow expected to say what happens next in the case.
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