Court of Appeal dismisses Hashatsi case
LESOTHO Defence Force (LDF) Special Forces Forces commander Lieutenant-Colonel Tefo Hashatsi has lost an appeal in the Court of Appeal to have the SADC Commission of Inquiry into Lesotho’s instability declared illegal..
Lt-Col Hashatsi had filed an urgent application on 16 October 2015 before the High Court challenging the commission’s legitimacy, and arguing that it had violated terms of its formation by hearing evidence in South Africa while it was established by a Lesotho law.
Lt-Col Hashatsi also accused the commission, and in particular its chairperson, Justice Mpaphi Phumaphi, of bias against him. He also accused the Botswana judge of making him appear as if he was the prime suspect in the killing of former LDF commander Maaparankoe Mahao.
The former LDF chief was shot dead on 25 June 2015 by his army colleagues while being arrested for allegedly being the ringleader of a group of soldiers who had plotted to topple the LDF command.
High Court judge Justice Tšeliso Monaphathi had dismissed Lt-Col Hashatsi’s application on the grounds that the case was brought to court prematurely as he could have waited for the report of the commission of inquiry to be released.
Dissatisfied with the judgement, Lt-Col Hashatsi noted an appeal before the Court of Appeal.
In his grounds of appeal he alleged: “The learned judge erred and misdirected himself in holding as he did that the proceedings were brought prematurely in view of the fact that as at the time the proceedings were instituted on 16 October 2015, the unchallenged evidence indicated that the commission was due to complete its business on 21 October 2015.”
He also challenged the judge’s finding that the commission acted within its powers to gather evidence in Thaba-Nchu, South Africa, arguing that “The learned judge ought to have held that such sitting and hearing was ultra vires the provisions of section 3 of the Public Inquiries Act read with legal notices number 75 and 88 of 2015 that defined the nature and extent of their mandate.”
However, Lt-Col Hashatsi lost again in the apex court.
In his judgment on Friday, Acting President of the Court of Appeal Justice Ian Farlam, rejected Lt-Col Hashatsi’s argument that the line of questioning adopted by Justice Phumaphi, on him suggested that he was guilty of murder.
“While I agree with the contention that Mr Justice Phumaphi’s way of questioning was inappropriate and calculated to create the impression that he had already made up his mind on certain issues, something a judge or chairman of a judicial commission of inquiry should not do, I do not think that, if we were to grant the relief sought on this point based on a finding to that effect, this would induce members of the public who were aware of the exchange between the judge and the appellant to change their views on the question as to whether the appellant is guilty of murder or any other criminal offence arising from the of Brigadier Mahao,” Justice Farlam said.
“He (Justice Phumaphi) said, it will be recalled, that the appellant was on the scene at the relevant time and he then gave a brief account of what happened when Brigadier Mahao was shot and his body was loaded into a vehicle and transported him to hospital.
“A member of the public who was aware of this exchange could only form a view as to the appellant’s guilt because he chose to rely on his right to refuse to answer questions that might incriminate him.
“If the judge had phrased his questions appropriately, without ‘putting’ things to the appellant, it is clear that his response would also have been to rely on his right not to incriminate himself, which is preserved by section 16(3) of the Act.”
Justice Farlam decided that: “It follows that the appeal must be dismissed.”
The other two judges who presided over the case were Acting Justices Peter Musonda and Kekeletso Moahloli.