THE Constitutional Court on Friday reserved judgment in a case in which Attorney General (AG) Tšokolo Makhethe is challenging last month’s appointment of Justice Kananelo Mosito as President of the Court of Appeal.
King’s Counsel (KC) Motiea Teele, who is representing the AG in the case, suggested the court should have enough time to consider the matter before giving judgment, and after a 15-minute break, the presiding judges— Justices John ‘Musi, Sulet Potterill and Rammaka Mathopo all from South Africa—announced a ruling could not be made on the day. It is expected judgment would be made this week.
“Judgment is reserved and parties will be informed about the date when it will be delivered. But it will be delivered as soon as possible,” Justice ‘Musi told the fully packed court.
Senior Counsel Jeremy Gauntlett, who is representing King Letsie III, Prime Minister Thomas Thabane, Law, Constitutional Affairs and Human Rights minister Haae Phoofolo, Justice and Correctional Services minister Motlohi Maliehe and Justice Mosito who are cited as First to Fifth respondent respectively in the lawsuit, told the court that Advocate Makhethe did not have the authority to sue his clients over the appointment in his official capacity.
“Yes, the Attorney General can sue but he should do so in his personal capacity. He should have resigned and not sue in his official capacity because he is the legal advisor of the respondents.
“The Attorney General’s recourse to litigate is demonstrably not based on the law; it is based on his own interpretation of what constitutes good practice.
“He is not authorised to litigate against his client because he feels aggrieved that his advice has not been sought,” Advocate Gauntlett said.
The lawyer, who is also South African and was once a Lesotho Court of Appeal judge, further said Dr Thabane acted within the confines of section 124 of the country’s constitution which allows him to advise the King on such appointments, and did not need to seek permission from cabinet before doing so, as suggested by the AG.
However, Advocate Gauntlett said the prime minister had convened a cabinet meeting to discuss Justice Mosito’s appointment, which Deputy Prime Minister Mothetjoa Metsing and some ministers did not attend.
He further dismissed the argument that cabinet had a mandatory role in advising the King when such an appointment is made.
But in response, Advocate Teele insisted the premier was supposed to be authorised by cabinet to make the recommendation, citing section 88 of the constitution.
The section in question reads: “There shall be a cabinet consisting the prime minister and other ministers. The functions of the cabinet shall be to advise the King in the government of Lesotho…”
Advocate Teele submitted the prime minister’s role is merely to take cabinet’s decision to the King, but had appointed Justice Mosito to the post unilaterally, contrary to the law.
He further denied Advocate Gauntlett’s statement that a cabinet meeting was convened to discuss the appointment.
“If there was such a meeting, it could have been reflected in the minutes of the cabinet,” he said.
Advocate Teele further argued the Attorney General was correct in bringing the lawsuit as it was his duty to ensure the country’s constitution was not violated.
Meanwhile, in his application filed before the court following the swearing-in of Justice Mosito as Appeal Court president on 27 January 2015, Advocate Makhethe argued: “In my capacity as the Attorney General, I have a legal duty to protect their integrity and ensure that I assist judicial officers in the discharge of their obligations.
“I declare that this legal duty obliges me to take such measures in circumstances where the government itself violates provisions of the constitution and other laws.”
Advocate Makhethe further outlines the nature of his lawsuit, which has however, angered many Basotho who believe it is an insult to the monarch. Scores of Basotho descended on the case venue on Friday to demonstrate against the AG’s action, and calling on him to “leave our King alone”.
“This is an application in terms of which the powers of the Second Respondent (Dr Thabane) to make recommendations without reference to Cabinet are questioned,” Advocate Makhethe notes in his court papers.
“The Constitutional Court has jurisdiction to hear the case because the matter raises important and serious issues, namely whether the decision of the King is constitutionally wanting in that the process for the appointment and consequently, the appointment itself, is invalid.
“At the heart of this application is that the Second Respondent failed to apply his mind to relevant facts with the result that his recommendation to His Majesty for the appointment of the Fifth Respondent (Justice Mosito) as the President of the Court of Appeal was made arbitrarily or mala fide.
“It is the case of the applicant that the Second Respondent misconceived the nature of his powers in relation to a recommendation to be made to His Majesty conferred upon him in terms of section 124 of the Constitution, and also relied on irrelevant considerations and ignored relevant ones.”