Lekhooa court challenge postponed
THE High Court on Friday postponed to 9 May 2018, the case in which the former Director General of the National Security Service (NSS), Colonel Tumo Lekhooa, is challenging his removal.
The case was initially set for Friday before a panel of three judges but was postponed because one of the judges, Justice Molefi Makara had to attend a funeral.
The other two judges are Justices Semapo Peete and ‘Maseforo Mahase.
Col Lekhooa wants the court to nullify the government’s decision to remove from the helm of the NSS and send him back to his old job as Director of Military Intelligence at the Lesotho Defence Force (LDF).
Colonel Lekhooa, who was appointed as the Director of the NSS in September 2016 by the seven-party coalition government on secondment from the army, was sent to his former position in the LDF by the present government.
He was given a three-year contract.
In the court papers that he filed in August last year, Col Lekhooa wants the respondents to ‘show cause’ why “the purported termination of applicant’s appointment on secondment as Director General of the National Security Service shall not be declared unconstitutional, null and void”.
“The purported termination of applicant’s appointment on secondment as Director General of the National Security Service shall not be reviewed and set aside,” he states.
In the event that he is not reinstated to the NSS, Col Lekhooa is seeking an order “declaring that the applicant is entitled to his emoluments and benefits for the unexpired period of secondment as Director General of the National Security Service calculated from the 10th of July 2017”.
He cites the Prime Minister, Thomas Thabane; the Minister of Defence and National Security, Sentje Lebona; the Minister Law and Constitutional Affairs, Lebohang Hlaele and the Attorney General as the first to fourth respondents respectively.
In support of his application, Col Lekhooa made an affidavit detailing the background and the reasons for his application.
“At all material times to this application I have been a member of the Lesotho Defence Force and on the 16th of September 2016 I held the rank of Colonel.
“On the same date I was appointed Director General of the National Security Service after I was seconded from the Lesotho Defence Force into the said service,” he states.
He argues the contract he signed with the government stipulates that either party can only terminate the contract upon making a notice of three months.
He says, instead the government offered to pay him three months when it terminated his contract with effect from 10 July 2017 through a letter written by Dr Thabane.
“The contract of appointment specifically provides that either party can terminate the secondment upon giving three months’ notice.
“The letter annexure TL2 does not comply with the terms of clause J of the contract of appointment of secondment in the circumstances,” he argued.
Annexure TL2 is the termination letter written by Dr Thabane to Col Lekhooa.
Clause J of his contract provides that: “Notice to terminate secondment may be done by either party through a written notice of three months. The termination shall not affect or otherwise limit any rights including benefits accrued to the employee party during the subsistence of the secondment.”
In his affidavit he states: “Though the letter annexure TL2 purports to make an offer of payment of three months in lieu of notice, there is no basis for such an offer in the contract itself, and as such it cannot be supported.
“Apart from the preceding, it is not apparent what the payment of the three months refers to. It will be seen that I am entitled to a monthly salary in terms of clause (5) of the contract, and to benefits quantified in monetary terms, some calculable per month and others not.
“I am legally advised and verily believe the same to be correct that by substituting three months payment for the actual notice the first respondent (Dr Thabane) is purporting to alter the terms of the contract unilaterally, a power he does not have in terms of the contract.”
He also complains that termination of his contract was made without a hearing.
“Alternatively, I had a legitimate expectation that as an occupier of a constitutionally established office, and confirmed by the National Security Act, which is as such a public office, I could not be removed while properly discharging the duties of my office until the contract came to an end, at the end of three years, as provided in the said contract. In other words, my contract of employment is not terminable at will or arbitrarily.
“I have ordered my affairs in such a way that I expected to spend three years in my employment, and upon good conduct and performance on my part.
“I budgeted on the basis of my salary and benefits set out in my contract and understood that I would not lose those without just cause,” he argued.
He alleged his removal from office lacked “a rational connection to the purpose for which the power was given in the constitution”.
“I am legally informed and verily believe that in all the circumstances my purported dismissal is null and void,” Col Lekhooa said