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High Court blocks prisoners’ release

Nat Molomo

MASERU — The High Court has blocked Chief Justice Mahapela Lehohla from releasing two prisoners.
Last Friday the Chief Justice ordered that ‘Mampai Lesupi, a former magistrate, and Kholu Manyala, a former treasury department employee, be released before completing their prison terms.
The court order granted by Acting Judge Justice Teboho Moiloa on Thursday followed an application by the Commissioner of Correctional Services, the Minister of Justice and Attorney-General.
In their urgent application the three applicants argued that the Chief Justice does not have the authority to release the two prisoners.
They wanted the High Court to declare his order null and void.
They also wanted the court to block the Chief Justice from following up on his threat to imprison anyone who disobeys his order.
During his speech at the official opening of the High Court last Friday, the Chief Justice said whoever disobeyed his order to release the two prisoners will be “held for contempt of court and committed to prison”.
That threat seemed to have been targeted at prison authorities.
Justice Moiloa’s interim order means that Lesupi and Manyala cannot be released until the court has decided whether the Chief Justice’s order is legal.
“The applicants are authorised not to release the two inmates, Miss Lesupi and Mrs Manyala,” the interim order states.
“The Honourable Chief Justice is interdicted from following up on his directive to release the two inmates and committing first applicant (Commissioner of Correctional Service) or anyone for that matter to prison for failure to comply with the chief justice’s directive issued on the 1st February 2013 pending finalisation of this matter.”
The application will be heard on February 18.
It is not clear if the Chief Justice will challenge the application.
In his founding affidavit the Commissioner of Correctional Service, Napo Sefali, said the chief justice had gone ahead to order the release of the two prisoners despite advice to the contrary.
Sefali said on December 20 last year Justice Lehohla requested a meeting to consider the release of prisoners to mark the inauguration of the Commercial Court on February 1.
The meeting held in the Chief Justice’s chambers was attended by Sefali, the Principal Secretary in the Justice Ministry Mataeli Makhele-Sekhantso and the High Court registrar.
Sefali said it was noted that none of the people at the meeting was authorised to order the release of prisoners.
He said the Chief Justice was then advised to request Minister of Justice Haae Phofoolo to order the release of the prisoners because he has the power to do so.
On February 17 the Chief Justice wrote to the minister requesting him to order the release of prisoners.
In that letter, the Chief Justice specifically mentioned Lesupi and Manyala.
Sefali said he informed the minister that neither Lesupi nor Manyala qualified for early release.
He told the minister that regulations state that a prisoner can only be released if they have served at least half of their sentence.
Those with longer sentences must have one year remaining on their sentence to qualify for early release.
“None of the two inmates was left with one year on their sentence as long term inmates,” Sefali said.
After his letter to the minister another meeting was held with Sefali, the registrar and the principal secretary.
At that meeting the Chief Justice was told that the two prisoners did not qualify for release but he said he was going to order their release on the basis of what he called “high quality of mercy from the high office”.
Sefali said this concept does not exist in “laws governing the correctional service particularly in so far as an early release of inmates is concerned”.
On February 1 the Chief Justice ordered that the two prisoners be released.
He went further to warn that those that disobeyed his order would be charged for contempt of court and imprisoned.
Sefali said the attorney general’s office advised him that a speech made by the Chief Justice to mark an event can “never amount to an order of the court” because he will not be performing a judicial function.
“Most importantly I am advised that the Chief Justice’s decision to direct an immediate release of the two inmates is illegal because the Chief Justice has exercised powers which he does not have in law,” Sefali added.
He said according to section 24 (a) of the Prison (Amendment) Act 1969 only the minister has the power to order the Commissioner of Correctional Service to release a prisoner.
“This explains why the Chief Justice’s decision shall be declared a nullity”.
Sefali said the application was urgent because if the order is carried out other prisoners in the same circumstance as Lesupi and Manyala “may feel hard-done-by and react in a negative or even a dangerous manner”.
If the application is not heard urgently the Chief Justice’s directive will have an undesired result within the prison community and perpetuate the order’s illegality, he argued.
Lesupi was one of two magistrates who were convicted of defeating the ends of justice and sentenced to jail in October 2011.
High Court judge Justice ’Maseshophe Hlajoane sentenced Lesupi and Itumeleng Letsika to one year in jail or alternatively pay a fine of M10 000 each.
The two magistrates were found guilty of tampering with court records to allow a South African national, Stephen Dlamini, who was facing charges of fraud, to escape from prison in 2005.
Dlamini was slapped with a 62-year jail sentence for defrauding the Lesotho Highlands Development Authority of M2.8 million in 2004.
Lesupi and Letsika were accused of receiving bribes from Dlamini to tamper with the records to make it appear as if his fraud charges had been withdrawn.
Lesupi appealed against the conviction and sentence but the Court of Appeal confirmed the conviction and increased her prison term to three years.
Manyala was sentenced to an effective five years imprisonment, the two counts on which she was convicted being taken as one for the purpose of sentence.
She was convicted of fraud in that in 2002 she created two cheques within the Department of Treasury.
Both cheques were created in the name of Metropolitan Services, the first on November 6, 2002 with an amount of M486 719.50 and the second on January 24, 2003 with an amount of M489 625.21.
She appealed against the conviction and sentence but the Court of Appeal confirmed Justice ’Maseshophe Hlajoane’s judgment.

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