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Phoofolo wins

High Court rules he can return to work immediately 

Pascalinah Kabi

ATTORNEY General Haae Phoofolo has won a major court victory.

He can now return to work pending the finalisation of his application to permanently stay Prime Minister Moeketsi Majoro’s decision to effectively fire him as AG.

The High Court on Thursday granted Adv Phoofolo an interim order allowing him to return to office. The interim judgment effectively nullifies Dr Majoro’s decision, albeit temporarily, to send him on forced leave pending the expiry of his contract in February 2021.

Judge Molefi Makara granted the order on Thursday in response to Adv Phoofolo’s application filed on 6 October 2020.

Dr Majoro, King Letsie III, the Office of Attorney General and Acting Attorney General Tšebang Putsoane are first to fourth respondents respectively in the lawsuit.

“Having read the papers filed, it is ordered that the decision of the first respondent (Dr Majoro) to send the applicant to compulsory leave be and it is hereby stayed pending finalisation of the proceedings herein,” Justice Makara ordered.

Justice Makara also gave Dr Majoro until 28 October 2020 to “show cause”, if any, why his decision to oust Adv Phoofolo should not be permanently stayed.

It is not clear whether or not Adv Phoofolo has already returned to work after the Thursday order as he was not reachable on his mobile phones for comment yesterday.

Dr Majoro wrote to Adv Phoofolo on 14 September 2020, sending him on terminal leave with immediate effect. The premier said it was necessary for Adv Phoofolo to go on leave to facilitate the search for his successor which he said he wanted to begin forthwith ahead of the expiry of Adv Phoofolo’s contract in February 2021.

But it has been reported that the real reason for Adv Phoofolo’s ouster was the ruling All Basotho Convention (ABC) national executive committee (NEC)’s decision to have him fired and replaced by a younger person.  The NEC had taken umbrage with Adv Phoofolo over various issues including allegations that he was too old and “incompetent”. There was also anger over his role in the appointment of five new judges.

Adv Phoofolo had met with Acting Chief Justice ‘Maseforo Mahase on 20 August 2020 in their capacity as members of the Judicial Service Commission (JSC) and recommended the appointment of five new judges namely Deputy Attorney General Tšebang Putsoane, lawyers Tšabo Matooane, Mokhele Matsau, Moneuoa Kopo and Maliepollo Makhetha.

Adv Phoofolo and Justice Mahase were accused of making the recommendations without informing Law and Justice Minister Professor Nqosa Mahao who is also the deputy leader of the ABC.

ABC secretary general Lebohang Hlaele subsequently confirmed to the Lesotho Times that the party’s NEC had indeed recommended the ouster of Adv Phoofolo and Justice Mahase.

Mr Hlaele said the NEC’s recommendation for their ouster was purely on the grounds of “competency issues” and nothing else.

He said they felt that 73-year-old Adv Phoofolo was no longer up to the task due to ill-health- a charge rejected by the latter who argued in his court papers that he was still of “sound mind”.  Adv Phoofolo said he was a victim of the factional fights that have ravaged the lead coalition party.

Mr Hlaele said the position of chief justice required someone who read a lot unlike Justice Mahase who was “not a reading type”.

Adv Phoofolo’s victory is a major blow to the ABC and the government.  The AG had argued, among other reasons, that his dismissal was unlawful as it was not done by the appointing authority, that is, King Letsie III.

The recommended appointment of the five new High Court Judges has transfixed Lesotho over the past few weeks. The only way out of the debacle, according to officials and analysts, is for the multi sector reforms to establish a broad based, transparent process of appointing judges and replace the current opaque system.

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