Attorney General (AG) Tšokolo Makhethe on Monday lost a case in which he wanted outgoing Prime Minister Thomas Thabane declared he had deprived him of his right to continue occupying office.
Advocate Makhethe had filed the application before the High Court on 19 June 2014 seeking an order blocking Dr Thabane from sending him on special leave pending the finalisation of a case he had earlier lodged in the same court.
In the first case, the AG had implored the court to rule that he was entitled to retire at the age of 60 and not 55 as Dr Thabane and Government Secretary Moahloli Mphaka had wanted him to.
However, the case was delayed due to ongoing negotiations between him and the government, as well as a pending judgment before the Constitutional Court in a similar case involving Director of Public Prosecutions Leaba Thetsane.
The High Court then ruled he should continue in his post until the finalisation of the negotiations as well as Advocate Thetsane’s case.
But when King’s Counsel Thetsane lost his case before the Constitutional Court, Mr Mphaka wrote a letter to the AG informing him to go on special leave pending the determination of the former’s appeal.
King’s Counsel Makhethe then lodged an urgent application seeking the court to find Dr Thabane, Mr Mphaka, and Minister of Law, Constitutional Affairs and Human Rights Haae Phoofolo in contempt for still trying to remove him from his post despite the court’s ruling.
But during an argument in the High Court on 9 September 2014, his lawyer, Senior Guido Penzhorn did not pursue the point to have Dr Thabane, Mr Mphaka and other respondents found in contempt but only to have denied him the right to continue in his post.
However, High Court judge, Justice Thamsanqa Nomncongo on Monday dismissed the AG’s application, stating: “The issue to be decided here is whether a person in the position of the applicant can avail himself of this remedy.
“The office of Attorney General is an office in the public service. The incumbent of the office for the time being is, as such, merely a servant.
“He enjoys certain benefits and does not hold office on his own behalf but the public that he serves, which in turn is represented by government.
“In the letter requiring him to proceed on leave, whether special or not, it was specifically said that he retained all benefits pertaining to his office pending the outcome of an appeal before the Appeal Court.
“As I said, the case was identical to that in which the Constitutional Court had ruled against the DPP.
“If the Court of Appeal was to confirm the ruling, it is obvious that the Attorney General would have exercised functions which he would not have had the right to.
“Instead of doing the honourable thing and going on leave in the face of a judgment by the Constitutional Court, the applicant chose to approach this court for a remedy that is not available to him.”
He had asked that the court sentences Dr Thabane and Mr Mphaka “in respect of such contempt as it deems appropriate.”
He also wanted them ordered to restore “his office as well as all things necessary for him to exercise fully and inhibited his powers as Attorney General of Lesotho.”
But Justice Nomncongo ruled: “The application is dismissed with costs.”
Government was represented by King’s Counsel Kananelo Mosito in the case.