The High Court this week saved Lieutenant-Colonel Tefo Hashatsi from another grilling by the SADC commission after Justice Tšeliso Monaphathi granted his application not to appear before the probe team yesterday.
The Special Forces commander approached the court on Friday last week seeking temporary relief from appearing before the commission again until his application to stop its probe into the death of former Lesotho Defence Force (LDF) commander Maaparankoe Mahao, is finalised.
Lt-Col Hashatsi claims the commission was biased against him during his first appearance on 17 September, hence his application to stop the probe.
He singles out the commission’s chairperson, Justice Mpaphi Phumaphi, for special mention and says the Botswana judge made him appear the prime suspect in Lieutenant-General Mahao’s killing. Lt-Gen Mahao was shot dead on 25 June this year by soldiers who had come to arrest him for allegedly being the ringleader of a group of soldiers who had plotted to topple the LDF command.
Justice Tšeliso Monaphathi said when saving Lt-Col Hashatsi from yet another cross-examination which had been scheduled for yesterday at the State Library where the commission has been interviewing witnesses since 31 August: “I agree that prayer 1(l) be granted. It is the prayer that speaks about whether the chairman of the commission and the commission itself shall not be restricted from summoning the applicant pending the finalisation of this application.
“In other words, the commission will continue with its normal work except calling the applicant to appear before it until the application has been finalised.”
Lt-Col Hashatsi’s application
In his application, Lt-Col Hashatsi argues the “clear stance” taken by Justice Phumaphi against him violated his constitutional right to be presumed innocent until proven guilty by a competent court.
The LDF officer says Justice Phumaphi appears to have already concluded that he was responsible for Lt-Gen Mahao’s murder due to his line of questioning.
Because of the alleged bias, Lt-Col Hashatsi wants the respondents—Prime Minister Pakalitha Mosisili, Justice Phumaphi, the SADC Commission of Inquiry and Attorney General Tšokolo Makhethe—to give reasons why the inquiry should not be discontinued “for lack of impartiality”.
He further wants the probe to be stopped because some of its members were not “legally commissioned”.
Lt-Col Hashatsi says the respondents should explain to the court why:
- The proceedings should not be “reviewed and set aside as having been vitiated by an error of law that they did not have to be conducted according to the Public Inquiries Act except only to the extent of using the provisions for the compulsion of witnesses under that law.
- The proceedings should not be reviewed and set aside because of the participation of Mr Waly and everyone else who was not appointed as a commissioner in terms of Legal Notice 75 of 2015.
Lt-Col Hashatsi further wants the court to rule that the commission acted beyond its powers when it conducted hearings in Thaba ‘Nchu, South Africa, from 1-7 October, where exiled opposition leaders and members of the army gave testimonies.
He also wants the court to order the commission to surrender evidence it has since gathered about him, to the Registrar of the High Court.
Part of the notice of motion also calls for the respondents to explain “why evidence and facts relating to him shall not be expunged from the record of the proceedings”.
Lt-Col Hashatsi further wants the respondents to show cause why the commission should not be “restrained and interdicted” from making any findings in relation to him, and also stopped from summoning him again “pending the outcome of this application”.
He also states the application was made in his personal capacity and not as an LDF officer.
Meanwhile, Justice Monaphathi also granted an application by Lt-Gen Mahao’s wife, ‘Mamphanya, to be part of the case.
However, the ruling was made after a heated exchange between Ms Mahao’s legal representative, King’s Counsel (KC) Haae Phoofolo and Lt-Col Hashatsi’s lawyer, Advocate Motiea Teele (KC).
Advocate Phoofolo KC told the court his client wanted to be one of the respondents because she intended to oppose all the prayers sought by Lt-Col Hashatsi.
“In the application to intervene, my client says she opposes everything, including the interim order sought. I thought this application should be dealt with first,” Advocate Phoofolo submitted.
But Advocate Teele insisted Ms Mahao was not party to the proceedings when the application was made, hence she had no right to stop the court from granting the interim order.
“As matters stand, Mrs Mahao is only knocking at the door to be allowed in. In fact, I don’t think she has a legal right to join. But she might be joined only for emotional reasons, which we don’t have a problem with.
“This application is about someone’s rights which he alleges are likely to be violated as they have already been violated before by the commission,” Advocate Teele said.
Justice Monaphathi then asked the commission’s lawyer, Advocate Molefi Ntlhoki (KC), what his clients’ stance was concerning the interim relief Lt-Col Hashatsi was seeking.
In response, Advocate Ntlhoki said the commission had no objection to the interim order, resulting in Justice Monaphathi granting Lt-Col Hashatsi his wish.
The judge also ruled Ms Mahao could be joined to the proceedings as the fifth respondent.
But soon after the announcement, Advocate Christopher Lephuthing told the judge he would also file an application on behalf of exiled LDF members to be part of the case. The soldiers fled the country on different dates in 2014 and this year after claiming the LDF authorities were out to arrest or assassinate them.
“The soldiers in exile also want to join the proceedings. Attorney Nthontho is also going to represent the detained soldiers as they also have interest in the matter,” Advocate Lephuthing said.
In response, Justice Monaphathi said parties wishing to join the proceedings as respondents should comply with the timeframe set by the court regarding the hearing of the case, which is scheduled to begin on 2 December 2015.
Justice Monaphathi also ruled the respondents should file their answering papers by 3 November.
But with the commission expected to complete its work on 9 November, it means Lt-Col Hashatsi’s case would be heard after the probe.