PROMINENT lawyer, Attorney Tumisang Mosotho on Tuesday urged the Court of Appeal to declare the government’s intention to use a third of this year’s financial budget unconstitutional on the grounds that the government failed to present the financial estimates in parliament.
He was addressing the Court of Appeal as he pursued the appeal lodged by Basotho National Party (BNP) spokesperson, Machesetsa Mofomobe and political activist Mohato Seleke after they lost their constitutional case last month.
The duo had lodged a constitutional case in the High Court to stop Finance Minister Tlohang Sekhamane from using the public funds for this financial year, which started on 1 April, after legislators objected to the tabling of budget in the National Assembly in February.
The MPs objected to the tabling of budget as they wanted the august house to deal with a no confidence motion against Prime Minister Pakalitha Mosisili and his government.
Dr Mosisili subsequently lost the no confidence vote on 1 March and this was followed by King Letsie III’s dissolution of the Ninth Parliament and call for snap elections to be held on 3 June this year.
The dissolution was effected before the approval of this year’s budget by parliament.
Section 113 of the constitution provides that the Minister of Finance can use one third of the financial estimates laid in parliament if the budget has not yet been passed by parliament.
But Mr Mofomobe and Seleke argue the financial estimates for this financial year were not tabled in parliament and as a result the finance minister is prohibited from using one third of the estimates.
The duo last month lost the case before a panel of five High Court judges and they subsequently appealed against the judgment.
And on Tuesday, Attorney Mosotho told the Court of Appeal that the judges erred by dismissing the application.
He said the law provided that the minister could use one third of the financial estimates laid in parliament.
He however, said the estimates were not laid before parliament and it was therefore unconstitutional for the minister to use the public funds under the constitutional section that provides for usage of one third of the estimates.
“The Standing Orders state clearly the procedure of laying, tabling or presenting a document in parliament.
“They state that a minister shall rise from his or her seat, go and lay document on a table.
“This was not done and it cannot be correct to say the financial estimates for this year were tabled in parliament,” he said.
He admitted that there was a document that showed that the budget was given to the Clerk of the National Assembly, but said that did not amount to tabling it before parliament.
“Indeed it was given to the clerk and that’s why the order paper for the 27 February indicated that there would be budget that day. But that did not happen because the MPs objected to it.
“In other words, what the minister did was just to give notice but he never stood up in the house and moved the motion.
“I submit what he did was not tabling and as a result the government cannot take money from the public purse when the budget was not tabled as the law requires,” he said.
But the lawyer representing the government, Senior Counsel Guido Penzhorn insisted the tabling was done because the document was given to the Speaker and the Clerk of the National Assembly.
“Once the document is in the office of the Clerk the MPs have access to it.
“It means they knew about the financial estimates,” he said.
Advocate Penzhorn also said the government was correct in giving the Independent Electoral Commission (IEC) money for the forthcoming elections because the IEC had a budget of over M200 million for the 2016/2017 financial year.
“The Appropriation Act number 1 of 2016 gives IEC M237 million.
“It means the IEC has money that can be used for elections,” he said.
But Attorney Mosotho contradicted Advocate Penzhorn’s argument.
He said the MPs would only have access to a document after it had been tabled in the house, not when it was still with the Clerk.
“That budget is still a secret between the government and the Speaker because it was not tabled in parliament.
“The government now seeks to advance withdrawals based on this secret document,” he said.
Regarding the M237 million allocated to IEC for last year’s financial year, he said the money was not allocated for general elections.
However, the said his clients, on new reflection did not want the court to stop the elections.
“My clients say they only want a declarator on the issue because they are aware that a lot has already been done in preparation for the election.
“All they want now is the proper interpretation of the law,” he submitted.
Judgment was reserved to 12 May this year.