NUL Dean of the Faculty of Law Dr Kananelo Mosito
Tefo Tefo
Court of Appeal President Justice Kananelo Mosito yesterday ordered the Lesotho Defence Force (LDF) to pay all the legal costs as punishment for withdrawing an application seeking to stay a High Court judgment which released Brigadier Thoso Mareka from army detention.
The LDF authorities had complained that the ruling, which ordered the Brigadier’s release from Maseru Maximum Security Prison on Friday last week and placed him on ‘open arrest’ should be suspended until their appeal to set aside the whole judgment had been finalised by the apex court.
However, Advocate Mafefooane Moshoeshoe, who was representing the army in the lawsuit, yesterday told Justice Mosito he was withdrawing the case because pursuing it would be academic since the order had already been executed.
“Brigadier Mareka was released on Friday last week and he is already out of detention.
“It is under these circumstances that we do not pursue this application anymore,” Advocate Moshoeshoe said.
On the other hand, Advocate Christopher Lephuthing urged Justice Mosito to award the costs of the suit in his client’s favour—Brigadier Mareka’s wife ‘Mathabo—for the withdrawal of the application.
Advocate Lephuthing said the army should be punished with costs because they dragged Mrs Mareka to the Court of Appeal “unnecessarily”.
“After my clients (Brigadier Mareka and his wife) responded to the application, the LDF (appellants) cannot say they are abandoning their appeal.
“The allegations they made in the affidavit against Brigadier Mareka are so serious the case cannot be abandoned just like that. They made very serious allegations that Brigadier Mareka is fleeing the country,” Advocate Lephuthing said.
However, Justice Mosito quickly interjected and said the LDF never made such a statement.
“No, they never said he is fleeing. They just said they are apprehensive that he might flee due to the seriousness of the charges he is facing,” he said.
However, Advocate Lephuthing proceeded: “They ought to have withdrawn their appeal immediately after receiving our answering papers, which they were served at 4:40pm on Monday, 6 July. They should have surrendered upon receipt of our papers.
“Up to now, they have not filed a formal application to withdraw the matter.”
Advocate Lephuthing went further to ask Justice Mosito to order Advocate Moshoeshoe to pay the costs “from his own pocket” as punishment for not following due process.
“The court should order costs de bonis Propriis against my learned friend.
“I mean, the court should order him to pay the costs from his own pocket for withdrawing the matter, especially because he did not file a formal application,” he said.
But Justice Mosito again interjected and said: “But Mr Moshoeshoe is not arguing his own case; you and him are arguing your clients’ cases, not your own.”
Justice Mosito then declared: “Having heard submissions from the bar, the application, in terms of Rule 18 (of the Rules of Court of Appeal) is hereby withdrawn.
“The applicants are ordered to pay costs on the ordinary scale.”
However, Justice Mosito said the main appeal in which the LDF argued that Justice Moiloa erred in releasing Brigadier Mareka would be heard in due course. The judge made the announcement in response to Advocate Lephuthing’s address when he referred to the “main appeal”.
Justice Mosito said: “The appeal you are referring to is not a matter before me now.
“It is a matter before a full bench of at least three judges of whom I may not be part.”
Meanwhile, the date of hearing of the main appeal has not been set, but it was expected Advocate Lephuthing would file the answering papers yesterday.
The appellants (army authorities) want the Court of Appeal to set aside Justice Moiloa’s judgment on the grounds that Justice Moiloa did not have the authority to make a determination on an issue pertaining to the LDF’s detention of its members.
Brigadier Mareka was arrested on 5 June 2015, and was among 56 members of the LDF nabbed since 14 May 2015 for allegedly conspiring to overthrow the army authority.
However, Justice Moiloa ordered his release on Wednesday last week due to ill-health, but the army authorities appealed the ruling the same day before the High Court, which however, upheld the judgment the following day.
It was after Thursday’s ruling that the LDF immediately filed their case before the Court of Appeal, with Justice Mosito setting the case for yesterday.
