Attorney general loses King’s lawsuit

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Court rules Prime Minister Thomas Thabane did not breach any rules in advising King Letsie III to appoint Justice Kananelo Mosito as Court of Appeal President.

Tefo Tefo

Attorney General (AG) Tšokolo Makhethe on Tuesday lost a case in which he wanted the Constitutional Court to nullify the appointment of Justice Kananelo Mosito as President of the Court of Appeal.

His Majesty King Letsie III
His Majesty King Letsie III

Advocate Makhethe had argued Prime Minister Thomas Thabane did not have the authority to unilaterally advise King Letsie III to make the nomination.

According to the AG’s court papers, only cabinet had the powers to make such recommendation hence his lawsuit requesting the 15 January 2015 appointment to be nullified.

King Letsie III, Dr Thabane, Law, Constitutional Affairs and Human Rights minister Haae Phoofolo, Justice and Correctional Services minister Motlohi Maliehe and Justice Mosito were cited as First to Fifth respondent respectively in the court papers the AG filed on 12 February 2015 on an urgent basis.

However, the three presiding judges from South Africa—John ‘Musi, Sulet Potterill and Rammaka Mathopo —dismissed the lawsuit on the basis that Advocate Makhethe does not have the authority or locus standi to sue the respondents as he is their legal advisor.

The judgment, which was read in court by Chief Justice Nthomeng Majara, started by giving context to the “unprecedented” case.

“The matter is certainly unprecedented in that the Attorney General is litigating against the Constitutional monarch, the King, and government.

“It was brought amidst a looming general election (of 28 February 2015) electrified with political tension.

“The Court of Appeal, though not the court of first instance, would be the forum that is ultimately tasked with hearing any urgent electoral disputes and the matter thus begs speedy adjudication.

“The recommendation of the Fifth Respondent (Justice Mosito) as the President of the Court of Appeal, was rumoured in December 2014.

“Pursuant thereto, a public statement was issued by concerned legal practitioners of Lesotho.

“In the statement, they highlighted the fact that the eminent appointment was hurriedly made during a transitional period of government following the prorogation of parliament.”

The judgment also highlights steps followed by the prime minister in ensuring due process was followed in Justice Mosito’s appointment as head of Lesotho’s apex court.

“The Attorney General had to prepare the necessary instruments for publication in the Government Gazette and ensure it was duly published.

“On 1 December 2014, the Second Respondent (Dr Thabane) requested the Office of the Attorney General to prepare the necessary instruments.

“The Fifth Respondent (Justice Mosito) was appointed as the President of the Court of Appeal on 15 January 2015 by His Majesty the King in terms of Section 124 (1) of the Constitution.

“The King appointed the Fifth Respondent on the advice of the Second Respondent in terms of Section 124 (1).

“The Fifth Respondent’s swearing-in ceremony was held on the 27th of January 2015.”

However, the ruling notes the Attorney General wrote a letter to the Prime Minister on 26 January requesting the swearing-in to be stopped “until the matter had been thoroughly discussed by their respective offices and all parties concerned”.

But the prime minister, the judgment further outlines, denied receiving such a letter.

The judges also criticised the Attorney General for instituting the lawsuit under the pretext of protecting the interests of the country’s legal profession.

“That is the function of the Law Society of Lesotho and not the Attorney General,” the judges observed.

Dismissing the application, the judges said: “On the facts, the Attorney General brought this application based on his interpretation of what would be good or best practice for the appointment of the President of the Court of Appeal.

“However, the Constitution does not authorise him to protect or uphold good practices.

“Effectively, he is litigating against his own client because the client did not seek  his advice.”

The court also dismissed the AG’s claim that Dr Thabane did not consult cabinet before advising the King about Dr Mosito’s appointment.

The court upheld the premier’s version that the matter was discussed in a cabinet meeting both the Attorney General and Deputy Prime Minister Mothetjoa Metsing did not attend.

The AG and Mr Metsing had alleged there was never such a meeting to discuss the issue.

The judgment notes: “The applicant alleged that the issue was never discussed by cabinet. The period within which this issue could have been discussed is very short.

“The answer of the prime minister is that the issue was discussed at a meeting which the applicant did not attend. The applicant failed to attach any of the minutes covering the relevant period.

“Although he alleged that it would be impracticable and burdensome to attach all the minutes of the cabinet meetings in his possession, he did not make any or all of the relevant minutes available for perusal.

“It is unfortunate that the prime minister did not state the date of the cabinet meeting at which this issue was discussed but, as we have said above, this issue must be resolved in his favour, irrespective of the omission.

“We find that the issue was probably discussed at a cabinet meeting.”

The court also advised that the “terms and conditions of the Fifth Respondent’s appointment is a matter that should be given attention by the powers-that-be in order to avoid future litigation or conflict-of-interest challenges.”

However, the court did not impose any costs of the suit against the Attorney General after considering that “he had no regard for the consequences of his action because he genuinely, albeit mistakenly, believed that he was doing the right thing.

“We are convinced that he should not be mulcted with the costs of this application. He raised important constitutional issues.

“The application is dismissed with no order as to costs.”

Meanwhile, when judgment was passed on Tuesday, hundreds of ordinary Basotho  who had thronged the High Court premises when the case was argued two weeks ago, were not present this time around.

Because of the huge crowd at the initial hearing, the trial was televised outside the courtroom for the audience that could not be accommodated in the courtroom, to follow the proceedings live.

And after the judgment was read in court this week, Minister Phoofolo held his  hands high in triumph, while facing the public gallery.

Mokhotlong Principal Chief Mathealira Seeiso was also present in court when judgment was delivered.

Former Court of Appeal judge, Justice Jeremy Gauntlett of South Africa represented the respondents in the case, while King’s Counsel (KC) Motiea Teele appeared for the AG.

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