…court case to proceed this week
Mohalenyane Phakela
TALKS between Prime Minister Thomas Thabane and Police Commissioner Holomo Molibeli for an out-of-court settlement in the matter in which Dr Thabane wants to oust the police have collapsed.
As a result, the High Court will on Thursday hear arguments in the court application filed by Commissioner Molibeli for an order to stop Dr Thabane’s from recommending to King Letsie III to replace him with Assistant Commissioner Janki Hlaahla.
The appointment of Mr Hlaahla should have been with effect from 10 January 2020 but it has since been blocked by a 12 January 2020 interim High Court order pending the finalisation of Commissioner Molibeli’s application for a final order to stop Dr Thabane from recommending his removal from office. The police boss’ application will be heard on 3 February 2020.
It will also be a test case regarding the extent to which the King can ignore the advice of the prime minister when hiring and firing heads of statutory bodies and other decisions affecting state business.
During a 6 February 2020 court appearance before Justice Molefi Makara, Attorney General, Advocate Haae Phoofolo, had proposed that Dr Thabane and Commissioner Molibeli try to settle out of court.
Justice Makara then ordered that if the parties failed to reach a consensus, they should be ready to proceed with the matter on 13 February 2020.
However, Justice Makara’s clerk, Advocate Eric Ramalefane, told this publication that Adv Phoofolo KC was not ready to proceed and therefore the matter had to be postponed to Thursday.
“The two sides indicated that they failed to reach an amicable solution out of court but then the matter could not continue as the Attorney General said he was not ready to proceed,” Adv Ramalefane said.
“The AG said that he had instructed a lawyer to represent him and other respondents but the lawyer, whom he did not name, said he dropped them at the eleventh hour, hence the unpreparedness. He said that he would be representing the respondents personally therefore asked for time to prepare.
“Justice Makara then ordered that Commissioner Molibeli’s lawyer, Adv Tekane Maqakachane should file his papers by tomorrow while the AG should file his by Wednesday. The two parties were also ordered to come ready to argue the matter on Thursday.”
Dr Thabane, the Police Authority, the Minister of Police, the AG and His Majesty King Letsie III are first to fifth respondents respectively.
Before the current application, Commissioner Molibeli had another matter in which he challenged Dr Thabane’s prior decision to suspend him. In that matter, an out of court settlement was reached and made an order on 9 January 2020.
However, the following day Dr Thabane approached His Majesty to send Commissioner Molibeli on early retirement and replace him with Assistant Commissioner Janki Hlaahla. Subsequently, Commissioner Molibeli petitioned the High Court on 12 January to block Dr Thabane and was granted an interim relief interdicting the removal process until his case was finalised.
“The advice of the first respondent to His Majesty the King to require the applicant to retire from office of Commissioner of Police be reviewed, corrected and set aside for the reason that it is irrational and illegal and therefore unlawful and of no force and effect in law,” Commissioner Molibeli’s application reads.
“The purported exercise by the first respondent of any power under section 91(3) of the constitution to retire applicant be reviewed, corrected and set aside. Any legal instrument or document proclaiming the retirement or purporting to have effect of retiring the applicant published under the authority of the fifth respondent or published pursuant first respondent’s purported exercise of powers under section 91(3) of the constitution be declared unlawful.
“The retirement of the applicant by fifth respondent acting on the advice of the first respondent and or by the first respondent, purporting to act on the basis of section 91(3) of the constitution be declared unlawful.”
Commissioner Molibeli alleged that Dr Thabane’s move to fire him was motivated by his desire to immunise himself from the ongoing investigation into the murder of his former wife Lipolelo on 14 June 2017. Police investigations into Ms Thabane’s murder uncovered telephonic communication at the scene of the murder between Dr Thabane’s mobile number and that of the suspected hitman.
That being that the case, Commissioner Molibeli then wrote to Dr Thabane on 23 December 2019, asking the premier to explain the involvement of his mobile phone and also provide details of the person his phone was communicating with on the day of brutal murder.
Instead of responding to the letter, Dr Thabane sent Commissioner Molibeli on indefinite forced leave on 2 January 2020 without giving any reasons. The police boss then challenged it in the High Court and obtained an interim order to return to work from Judge Semapo Peete. The following day, before the ink on the interim order had hardly dried, Dr Thabane suspended him for 60 days over a litany of misconduct and incompetence allegations including Commissioner Molibeli’s failure to end the much-criticised police brutality against civilians. Commissioner Molibeli then went back to court on 5 January 2020 to challenge the suspension and an out of court settlement was reached on 9 January 2020 of withdrawing the suspension letter and that was endorsed by High Court’s Justice Tšeliso Monapathi as the final court order.
However, in his latest (12 January) application, Commissioner Molibeli states that he had learnt that Dr Thabane approached the King on 10 January 2020 to recommend that he be sent on early retirement.
He said the Prime Minister’s move was meant to stop the investigations into Ms Thabane’s murder. He said the premier wanted to immunise himself from criminal investigations, thus interfering with the rule of law.
“The closing of the investigative net (into Ms Thabane’s murder) and noose around the first respondent and others, and an attempt to forever thwart the process and outcomes of the investigations, with the consequence of immunising himself from criminal investigation and prosecution for murder of Lipolelo Thabane, are the moving spirit and the real reasons for my forced leave, suspension and retirement.
“The first respondent’s stratagem of having me indefinitely on forced leave and suspending failing, the last string in the bow and armoury in order to immunise himself from criminal investigations and prosecution, thus thwarting the rule of law, equality before the law, due process and justice, is to have me retired from the office of the Commissioner of Police by hook or crook.
“My removal from office of the Commissioner of Police and the appointment of a willing and subservient candidate who will protect his interests guarantee the first respondent an immunisation tool against the investigation, prosecution and justice.
“On 11 January 2020, I received credible intelligence report by security personnel in the intelligence community, whose names they have instructed me to withhold for fear of reprisal, that on 9 January 2020, after the final court order was granted by consent, the first respondent was bent towards requesting His Majesty the King, in terms of section 91(3) of the constitution to retire me with immediate effect, failing which the first respondent will do the act himself.”
The application also states that it was illegal for Dr Thabane to constrain himself on section 91(3) of the constitution as the basis for removing Commissioner Molibeli from superintending the police.
“The first respondent has no authority in law to act on the basis of section 91(3) of the constitution in the circumstances of the present case, dealing with the retirement of the Commissioner of Police under the Police Act 1998. The constitution under section 147 does not itself deal with the removal and/or retirement of Commissioner of Police, such matter being prescribed and required under section 5 of the Police Act 1998.
“In terms of section 91(3) of the constitution, the first respondent is only entitled to act and the act would be deemed to be that of His Majesty the King, only in circumstances where his Majesty the King failed to perform an act that is required by the constitution. Retiring or requiring the Commissioner of Police to retire is not required by the constitution, but by section 5 of the Police Act 19938. To act on the basis of this section without this important condition precedent, the first respondent is committing a serious jurisdictional error or mistake of law on his part.
“The purported exercise of power by the first respondent under section 91(3) of the constitution flies in the face of the legality principle which require the executive power, even advisory executive power, to be exercised within confines of the enabling law. The first respondent clearly misconstrued his powers under section 91(3) of the constitution,” Commissioner Molibeli’s application reads.