- accuse army boss Letsoela, govt of ignoring their repeated demands for compensation,
- but fail to have High Court halt Letsoela’s decision to probe them.
Mohalenyane Phakela
TWELVE soldiers who recently sued army commander, Mojalefa Letsoela, for M32 million, say they only turned to the courts in desperation. This after the army chief and other unnamed senior government officials had allegedly ignored their “valid demands” for compensation from 2018 to date.
The soldiers accuse Lieutenant General (Lt-Gen) Letsoela of seeking to deny them their constitutional rights to approach the courts for justice and of further seeking to punish them for doing so by establishing an “illegal” Board of Inquiry to probe them on spurious allegations of mutinying against him.
They argue that they cannot be labelled mutinous for exercising their rights to approach the courts for compensation.
They make the claims in their unsuccessful High Court application for an interim order barring the Board of Inquiry set up by Lt-Gen Letsoela from interrogating the circumstances surrounding their joint decision with four others to sue the army chief for a staggering M32 million for their alleged 2014 unlawful arrests and torture.
Judge Moroke Mokhesi this week refused to temporarily bar the Board of Inquiry from investigating them.
The 12 plaintiffs are Ngoliso Majara, Khorai Ralitlemo, Selebalo Sejake, Thabiso Motsieloa, Thabang Lepota, Peter Mokhothu, Ntabejane Kanono, Lehlohonolo Bolofo, Ntai Mosaku, Litšitso Mahase, Mokhapi Kelane and Lehloa Ramotšo.
In refusing to grant the interim relief, Justice Mokhesi ruled that the 12 did not stand to suffer any irreparable harm if they appeared before the Board of Inquiry. Furthermore, they had been suspended with full pay.
He instead ordered them to appear before the High Court on 5 August 2021 for the setting of a hearing date for their application for a final order nullifying the establishment of the Board of Inquiry.
The soldiers last month sued Lt-Gen Letsoela for M32 million in damages for the illegal arrests and torture they claim to have endured after being falsely accused of mutiny against former army commander, Tlali Kamoli, in 2014.
They were allegedly subjected to torture and degrading treatment by their army colleagues during and after the 30 August 2014 attempted coup against the first government of former Prime Minister Thomas Thabane.
Lt-Gen Letsoela is only being sued in his capacity as army commander even though the alleged infractions happened under Lt-Gen Kamoli’s command.
The 12 are among 16 plaintiffs who filed the M32 million lawsuit against Lt-Gen Letsoela. Their fellow plaintiffs were Tumelo Maja, Lintle Rantuba, Mojalefa Mosakeng and Motšoene Motšoene.
However, the 12 were the only ones to be slapped with “show cause” letters asking them to explain why they should not be suspended to pave way for the Board of Inquiry to probe them because they are still serving in the army while others are said to have distanced themselves from the lawsuit.
They approached the High Court for relief after Lt-Gen Letsoela suspended them and set up the Board of Inquiry to probe them for what he saw as mutinous behaviour after they teamed up with their retired colleagues to sue him for the damages over their 2014 ordeal. Lt-Gen Letsoela characterizes the soldiers’ decision to sue him as amounting to a mutiny.
In his 30 June 2021 “show cause” letters to each of the 12 soldiers, Lt-Gen Letsoela states that he has established a Board of Inquiry “to inquire into circumstances surrounding the joint action by yourself and 15 others in the Tumelo Maja V Commander LDF and Another whereby there is a claim for damages pertaining to alleged incidents of torture and unlawful arrest”.
In his letters, Lt-Gen Letsoela says the meeting by the soldiers to discuss their lawsuit amounted to a mutiny.
“Now therefore you are hereby required to show cause, if any, why you may not be suspended from service pending finalisation of the inquiry. Be informed that the envisaged suspension is intended to be on an allowance equivalent to your salary.
“Take note that you are expected to furnish your written response within seven working days of your receipt of this letter, failing which the commander of LDF will have no option but to effect your envisaged suspension,” Lt-Gen Letsoela states in reference to the inquiry he has established to probe the soldiers.
Lt-Gen Letsoela subsequently suspended the 12 soldiers to allow the Board of Inquiry to investigate them.
The 12 then approached the High Court for an interim interdict barring the Board of Inquiry from investigating them pending their application for a final order nullifying their suspension and the setting up of the same Board.
Lt-Gen Letsoela, the LDF, ministers Halebonoe Setśabi (Defence and National Security) and Lekhetho Rakuoane (Justice and Law) and Attorney General, Rapelang Motsieloa, are the first to fifth respondents respectively in the 12 soldiers’ application.
In his affidavit, supported by his co-applicants, Sergeant Majara argued that their suspensions were unlawful, done in bad faith and “serve as a precursor to our eventual dismissals from the LDF”.
“This is also a design on the part of the respondents to threaten us from exercising our fundamental rights of access to court. (sic),” argued Sergeant Majara. He said they only approached the courts out of desperation after Lt-Gen Letsoela and other unnamed senior government officials since 2018.
He also outlined the genesis of their M32 million damages lawsuit, saying it had “its roots in the political crisis that engulfed the Kingdom of Lesotho around the years 2014 and 2015 reaching its peak with the now widely reported attempted coup against the government of the day around August 2014”.
“Following the attempted coup, it became apparent to myself and my co-applicants that there were factions within the LDF which sought to reinforce and preserve the stranglehold on power of the then commander, Tlali Kamoli, who was, it appeared, not particularly preferred by the then government (headed by Thomas Thabane).
“From February 2015 what occurred were widespread kidnappings, tortures and assaults meted out against LDF members suspected of being disloyal to the aforementioned then commander.
“I aver that I was part of the contingent which was being persecuted by the LDF and so were my co-applicants. I aver that on the 1st of February 2015, I was shot in the face and in both shoulders. I sustained permanent damage to my face and had to undergo reconstructive surgery. Some of my co-applicants were kidnapped and hauled off to Setibing Military Base where they were tortured in the most barbaric and inhuman manner. Some of the applicants had no other choice but to skip the country to South Africa as political exiles.”
Sergeant Majara said that upon their return in 2018, they were ordered not to file lawsuits against Lt-Gen Letsoela and the LDF “for atrocities committed on us”.
“Certain promises were made by political figures and senior military officials that our grievances would be resolved amicably without the need to approach the courts to claim damages.
“I aver that to date we have not been assisted regarding our respective grievances. We have not been compensated for the atrocities committed upon us despite several legal demands,” Sergeant Majara said, adding Lt-Gen Letsoela had ignored his several requests for compensation since 2018.
He said they were now being falsely accused of mutiny to stop them from exercising their rights to approach the courts for compensation.
He said they were not even afforded a hearing before being suspended. He begged the court to grant their prayer to stop the Board from probing them because death was the only sentence in the event of a guilty verdict on a mutiny charge.
“I submit that to be suspended from the Defence Force and be seen to have been suspended from the Defence Force is actionable for negatively affecting our livelihood, sense of identity, self-worth, repute and emotional well-being and life as a death sentence is the only competent verdict for mutiny,” Sergeant Majara argued.
On Monday, the 12 soldiers’ lawyer, Advocate Moeletsi Mokhathali, argued that his clients stood to suffer irreparable harm if the Board of Inquiry proceeded with their case. Adv Mokhathali said his clients would most likely be arrested and charged with mutiny. He however dropped the prayer to have their suspensions nullified saying he would only focus on the prayer to nullify the Board of Inquiry.
“If this Board is allowed to proceed to the detriment of the applicants’ right to dignity and reputation, it is clear the Board can recommend that the applicants be charged with mutiny. Mutiny is not bailable, which means the applicants will be detained when their case proceeds before the Court Martial. We will be without an effective remedy at that stage. They would be deprived of their right to liberty.
“Owing to our contention that the Board is illegally constituted, the applicants would be prejudiced by then. We are entitled to interim relief. The applicants had a right to be heard before the Board was convened. There is a well-grounded apprehension of harm in that subject to the recommendation of the Board, the applicants may find themselves arrested and charged with mutiny,” Adv Mokhathali further argued.
However, one Major L. Motikoe, who appeared on behalf of the LDF commander, counter-argued that the soldiers’ application had failed to pass the urgency test. He also argued that the applicants would be afforded a fair hearing at the Board of Inquiry.
“The applicants failed dismally to put reasons before court as to why this matter must be treated with urgency,” Major Motikoe argued.
“They have a remedy before the Board of Inquiry established by the commander. In due course they will be afforded a substantive relief if it is found that the Board was illegally constituted. Therefore, this application fails requirements of urgency.
“The applicants need to show that they will suffer a well-grounded irreparable harm if the interim relief is not granted. They also failed to show the harm they would suffer. They are only predicting what may come if the Board makes its recommendations. If the court grants the interim relief, it would be prejudicial to the army which needs to know whether there was mutiny. They are suspended with full pay so they do not stand to suffer any prejudice.
“If there is an allegation of an offence, it should be interrogated and that is not prejudicial to the applicants but it would be prejudicial to the army if the court grants an interim interdict. They have come before the High Court prematurely because they have not yet appeared before the Board. They can appear before the same Board and challenge its legality,” Adv Motikoe further argued.
After hearing both sides’ arguments, Justice Mokhesi declined to grant the interim interdict barring the Board from conducting its work.
“How does the decision of the commander to convene the Board prejudice your clients? It does not affect your clients’ propriety rights nor does it relate to their liberty being compromised.
“In a nutshell, I don’t agree that I should grant you interim relief. The matter is deferred to 5 August 2021 for allocation to a judge to hear the application for final reliefs,” Justice Mokhesi ruled.
The net effect of Justice Mokhesi’s ruling is to allow the inquiry into the alleged mutiny to proceed for now. It however remains to be seen whether or not the judge who will hear their application for a final order nullifying the Board will rule in the soldiers’ favour.
