MASERU – A High Court judge is suing Prime Minister Pakalitha Mosisili over the contents of a report produced by a commission of inquiry into the April 2009 attacks on State House and the Makoanyane Barracks.
The Sunday Express can exclusively reveal that Justice ’Maseforo Mahase’s lawyer Advocate Zwelakhe Mda will file papers this week seeking to compel Mosisili to expunge some sections of the report he says casts aspersions on the judge’s integrity.
Justice Mahase is unhappy that the report criticises her July 2007 judgment that ordered the release of five men accused of causing the 2007 political disturbances and attacking ministers’ homes as well as disarming their bodyguards.
The commission’s report, released in April last year, said it was particularly concerned that the late Makotoko “Mashai” Lerotholi, the man accused of leading the April 22 attacks, was one of the five men released on Justice Mahase’s orders.
Justice Mahase released Lerotholi after Chief Magistrate Molefi Makara had referred the case to the High Court to determine whether he had jurisdiction to “entertain the lawfulness” of the suspects’ detention.
Through an interim order Makara had ordered that they should be kept in protective custody.
The High Court said it could not hear the matter because the appeal raised a constitutional issue and ordered that the record of proceedings be typed and sent back for the attention of the Constitutional Court.
The report says the judge did not follow proper procedures when she ordered the release of the five men who were facing high treason charges.
After his release in July 2007 Lerotholi, a former military officer, fled to South Africa from where the state alleges he masterminded the April 22 attacks that left four of the mercenaries dead and 11 arrested.
The state alleges that after the April 22 attacks Lerotholi again fled to South Africa where he was eventually arrested but died later that year before he could be extradited to Lesotho for trial.
The commission led by retired judge Justice Jan Steyn not only criticised Justice Mahase’s decision to release Lerotholi and company but it also seemed to insinuate that had she not made that ruling the 2009 attacks would not have happened because Lerotholi would have been jailed.
It said Lerotholi and his co-accused were released “from police custody by order of the High Court on the 7th of July, 2007 in circumstances that can only be described as most unusual”.
The process that Justice Mahase presided over and led to Lerotholi’s release was “flawed”, the report says.
The report alleges after the matter had been referred to the Constitutional Court Justice Mahase took it upon herself to deal with the case.
“Without due process being observed Mahase J. then intervened and granted an order releasing Lerotholi and his four co-detainees from the custody of the police”.
The report says that “there was no application before her to do so, and no affidavits of oral evidence were placed before her”.
It also alleges that Justice Mahase did not give the police or the army a chance to present arguments to prove that further detention was justified.
“Without a proper hearing the judge on her own initiative decided to release all five detainees,” the report said.
“Her concern for their human rights was extensively addressed and recorded. However, she never considered that hearing the other side was necessary or important otherwise she would have given them a proper opportunity to do so.”
As a result of Justice Mahase’s ruling Lerotholi was released and fled to South Africa from where he planned the April 22 attacks, the commission said.
It insinuates that because Justice Mahase did not follow the due process in granting bail, the man who she ordered released went on to lead the 2009 attacks that almost plunged Lesotho into political chaos had it not been for the gallantry of the country’s security forces that repelled the mercenaries.
The attacks, the report said, were an example of what happens if due process is not followed in granting bail. It is this insinuation that has particularly angered the judge.
In papers to be filed this week Mda, Justice Mahase’s lawyer, is expected to argue that the Steyn Commission has no right to make pronouncements on her judgment because that was never its mandate in the first place.
Sources close to the matter said Mda will argue that the commission had overstepped its mandate given by Prime Minister Mosisili.
A source who has seen the papers said Mda will argue that the commission’s report had cast aspersion on the judge’s integrity and reputation.
“The argument is that the commission of inquiry had no right to review a court judgment. If the state had any problems with that judgment it could have appealed against it,” the source said on Friday night.
“The ruling gives the impression that Justice Mahase is a dishonest and incompetent judge who does only not follow procedures but also grabs cases that are not before her.”
The Sunday Express also understands that Mda will question why the edited version of the report that the prime minister presented to parliament last year still carried those damaging allegations against Justice Mahase.
He will argue, the source said, that if the state found it necessary to prune some sensitive information from the report for security reasons then it should have taken the same measures to deal with sections that criticised the judge.
“He will argue that the report has damaged Justice Mahase’s reputation,” the source explained.
Justice Mahase is not asking to be compensated for damages but it is reliably understood that Mda will ask the court to compel Mosisili to order that those sections of the report be expunged.
He also wants the prime minister or the attorney general, who is also cited as a respondent in the papers, to issue a public apology to the judge.
Other respondents in the case are the Ministry of Defence and National Security and the Speaker of Parliament.
This paper understands that apart from arguing that the Steyn commission had over-stepped its mandate Mda will also seek to show that some of the findings relating to Justice Mahase are false.
“Even the argument that the police were never given a chance to argue their case is also false because the Director of Public Prosecutions, who represents the state, addressed the court at length on that day,” the source said.
“Even the allegation that she intervened of her own volition is also going to be challenged because the application came before her just because she was on call that Saturday.”
When contacted on Friday Justice Mahase refused to comment and referred all questions to Mda whose phone went unanswered until the time of going to print.