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SA evidence ‘inadmissible’: Phafane


Lawyer says Justice Phumaphi was advised moving commission to South Africa would be illegal  

Bongiwe Zihlangu

Lawyers representing government before the ongoing SADC inquiry will challenge the legitimacy of evidence given before the commission in South Africa, the Sunday Express heard yesterday.

According to a member of the legal team, King’s Counsel (KC) Salemane Phafane, the evidence should be declared “inadmissible” because it is being given “in violation of the laws of Lesotho”.

Advocate Phafane further noted the statements “should not even make it into the commission’s final report” because of this alleged irregularity.

The lawyer further argued although the probe is largely funded by the Southern African Development Community (SADC), it remains a Lesotho commission.

Led by Justice Mpaphi Phumaphi of Botswana, the commission was established to investigate the murder of former army commander Maaparankoe Mahao and “surrounding circumstances”.

Lieutenant-General Mahao was gunned down on 26 June this year by members of the Lesotho Defence Force (LDF) who had come to arrest him after he was allegedly fingered as the mastermind of a foiled plot to overthrow the army command.

After starting its probe on 31 August in Maseru, the commission moved to Thaba ‘Nchu on Thursday where it is now interviewing Basotho living in exile in South Africa. Most of the exiles, who include former prime minister and All Basotho Convention (ABC) leader Thomas Thabane, fled the country this year after alleging some LDF elements were plotting to assassinate or arrest them.

However, Adv Phafane says lawyers representing state organs before the commission would challenge the admissibility of the evidence being collected in Thaba ‘Nchu.

“This Commission of Inquiry was established under the Public Inquiries Act of 1994, which does not provide for extraterritorial application. It was not established by SADC as many would want it to appear,” Adv Phafane said.

“That is why we will strongly contest the admissibility of any evidence given outside Lesotho’s jurisdiction. As far as we are concerned, the evidence should be considered inadmissible and not even make the commission’s final report.

“A country’s statutes operate within such a state and not outside. This is an Act in Lesotho and applies only in Lesotho.”

Dr Thabane, Basotho National Party leader Thesele ‘Maseribane, Reformed Congress of Lesotho leader Keketso Rantšo, several members of their parties and the LDF, are testifying before the commission during its nine-day stay in Thaba ‘Nchu in the Free State Province.

The exiles requested the commissioners to interview them in South Africa claiming their lives were still in danger in Lesotho.

Already, a number of LDF members have given damning testimonies against army commander, Lt-Gen Tlali Kamoli.

However, Adv Phafane yesterday emphasised the minute the commission moved to South Africa, its chairperson and commissioners ceased to have the powers they enjoy under Lesotho’s Public Inquiries Act of 1994.

No longer commissioners but ordinary people

“The minute they start operating outside Lesotho, the country under whose laws the inquiry was born, they are no longer commissioners but just ordinary people,” Adv Phafane said.

“Remember, they were sworn-in here in Lesotho. For instance, Justice Phumaphi is a Botswana judge under that country’s laws, hence his swearing-in here before he could begin his work.

“This basically means the commissioners don’t have the powers to swear-in people in South Africa and those oaths are not valid if done outside Lesotho.”

Adv Phafane added Justice Phumaphi was advised against moving the commission to South Africa on Wednesday, but indicated he had already made arrangements for the commission to “commence that side”.

“At the conclusion of Wednesday’s proceedings (at the State Library in Maseru) and before that open gallery, we told Justice Phumaphi it was ill-advised of him to move the commission to South Africa as that would be in violation of the Public Inquiries Act,” Adv Phafane said.

According to the Public Inquiries Act, members of a Commission of Inquiry “enjoy the same protection, privileges and immunity as a judge of the High Court”.

The Act further states a legal practitioner appearing before the commission enjoys the same protection, privileges and immunity as a legal practitioner appearing before a Lesotho court of law.

Exposing government and witnesses to lawsuits

Meanwhile, Adv Phafane said by moving the commission to South Africa, Justice Phumaphi was exposing the government of Lesotho to lawsuits.

“We also told him that by gathering evidence from outside Lesotho’s jurisdiction, he was exposing the government of Lesotho to civil lawsuits by virtue of him being an agent of the government of Lesotho,” Adv Phafane said.

“Again, we told him that once people testify before a commission outside Lesotho’s jurisdiction, that exposes them to lawsuits. This is because witnesses and their lawyers enjoy immunity from lawsuits when they testify from within the confines of Lesotho.”

According to Adv Phafane, the judge told them he appreciated the advice but would still take the probe across the border.

“Although he said he appreciated the advice, he also argued that they had already committed themselves and paid a deposit for the venue,” Adv Phafane said.

Asked if they had made legal attempts to stop Justice Phumaphi from moving the commission to South Africa, Adv Phafane said they had not, adding: “We decided against making any attempts to stop him, save for the advice.

“We decided we are not going to try and stop them from moving the commission. But as I’ve said already, we will definitely contest the admissibility of the evidence given that side.”

Further asked if he and his colleague planned to grill some of the key witnesses, including Dr Thabane, when they appear before the commission this week, Adv Phafane said: “We will not because by so doing, we will be breaking the law. The commission is currently operating from South Africa, so we would not be covered by the law if we went there.”

Attempts by the Sunday Express to solicit comment from the commission’s Media Liaison Officer, Phumlani Dlamini, proved futile.





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