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Thetsane takes fight for job to Court of Appeal

by Sunday Express
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DPP challenges Friday’s Constitutional Court ruling that his retirement age must be 55 years.

Tefo Tefo

THE Director of Public Prosecutions (DPP), Advocate Leaba Thetsane (King’s Counsel), is challenging Friday’s decision by the Constitutional Court, which ruled his retirement age should be 55 years as per the country’s constitution.

Advocate Leaba Thetsane (King’s Counsel)

Advocate Leaba Thetsane (King’s Counsel)

Advocate Thetsane approac-hed the Constitutional Court in reaction to a letter written on 16 June 2014 by Acting Government Secretary Moahloli Mphaka, ordering that he vacates office with immediate effect because he was past the retirement age of 55. The DPP turned 56 last month.

However, the Constitutional Court on Friday rejected Advocate Thetsane’s claim that he should retire at the age of 60 years as provided by the Public Service Act of 2005.
The DPP had acknowledged his retirement age, as stipulated by the constitution, was 55 years, but argued there is a specific section in the Act that allows public officers who wish to retire at the age of 60 years, to make such a choice.

Advocate Thetsane further argued he had made such a choice and provided documentary proof of the decision, which should have seen him retire in 2018.
But the Constitutional Court on Friday rejected his claim on the basis his retirement age is governed by the Lesotho Constitution, and not the Public Service Act.
The Court ruled the constitution provides that the DPP’s retirement age can only be altered by a specific legislation passed by parliament.
“Since his terms of appointment were not placed before the court, we can only rely on the constitution which stipulates that his retirement age is 55 years.
“He is governed by the constitution, not the Public Service Act. This court is wholly convinced that the retirement of the DPP can only be altered by a specific legislation,” Acting Chief Justice Tšeliso Monaphathi said.

Justice Monaphathi further said the DPP is classified under a certain category of public officers who are not governed by the Public Service Act.
However, the court upheld Advocate Thetsane’s argument that Prime Minister Thomas Thabane, on whose orders Mphaka reportedly wrote the letter terminating the DPP’s employment, had no powers to direct him to leave his job.

Justice Monaphathi said Mr Mphaka should have notified the Public Service Commission (PSC), as the DPP’s employer, of the prime minister’s concern.
“On the issue of the lawfulness for the Prime Minister and the Government Secretary to make the DPP retire and vacate office, the respondents have already conceded that they have no powers to do so.
“In the light of all that has been said in the judgment, Prayer F (where he asked the court to declare that he is entitled to retire at the age of 60 years) is the one that fails.
The other prayers succeed in the light of the fact that the 3rd respondent (Mphaka) has conceded that they have no powers to direct the DPP to vacate office.
“The 4th respondent (PSC) has repository powers to determine the retirement of the applicant (Thetsane),” Justice Monaphathi said.

However, in a new turn of events, the DPP made an application in the Court of Appeal soon after Friday’s ruling, challenging the ConCourt’s ruling.
Speaking to the Sunday Express soon after Friday’s ruling,

Advocate Thetsane said the judgment, as it stood, meant he was still legally occupying office because the PSC, which had appointed him, had not yet directed him to vacate the post.
“The judgment means I am still in office. You will realise that almost all the prayers sought have been granted to me except Prayer F,” he said.

Meanwhile, Justice Monaphathi was presiding over the case, alongside Justice Semapo Peete and Justice Lisebo Chaka-Makhooane.
Advocate Thetsane was represented by Advocate Motiea Teele, while the government was represented by Advocate Kananelo Mosito. Both are King’s Counsel.

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