Criminal charges preferred against lawyers

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Pascalinah Kabi

Prime Minister Thomas Thabane says that criminal charges have been preferred against the three prominent lawyers who filed a constitutional court challenge against the appointment of Justice ‘Maseshophe Hlajoane as acting Court of Appeal President.

Dr Thabane said the trio of Zwelakhe Mda, Karabo Mohau and Qhalehang Letsika would be charged with contravening the Official Secrets Act and the Internal Security Act after they illegally obtained the government gazette which they used as the basis for their lawsuit against the appointment of Justice Hlajoane in February this year.

The lawyers used the government gazette to argue that the appointment of Justice Hlajoane violated the constitution because she was appointed when the government had already appointed a South African judge, Justice Yvonne Mokgoro, to the same position on 27 February this year.

Following the three lawyers’ court application, Justice Tšeliso Monapathi ruled in March this year that Justice ‘Maseshophe Hlajoane should not assume office as acting president of the Court of Appeal.

Justice Monapathi said the court had to first finalise the trio’s substantive court application for an order to nullify the removal of Justice Mokgoro from office as acting President of the Court of Appeal.

Justice Mokgoro had not been sworn in when Dr Thabane advised His Majesty, King Letsie III to replace her with Justice Hlajoane with effect from 20 March 2018.

It was on this basis that the three lawyers petitioned the Constitutional Court to have her removal (Justice Mokgoro) reversed and her replacement with Justice Hlajoane declared null and void.

And the three lawyers’ court challenge did not go down well with Dr Thabane who recently told the High Court that a criminal docket had already been opened against the trio for violating the Official Secrets Act and the Internal Security Act.

Dr Thabane said this in his response to the court application that was filed against him by the Chief Justice Nthomeng Majara.

Justice Majara has petitioned the court for an order to interdict Dr Thabane from recommending the appointment of a tribunal to consider her impeachment over a plethora of misconduct allegations.

However, Dr Thabane responded by accusing Justice Majara and the three lawyers of “directly and indirectly paralysing the Court of Appeal by bedeviling the re-appointment of Court of Appeal president… on the basis of a fraudulently accessed copy of the government gazette”.

“A criminal docket and or case has been opened against the lawyers for criminal misconduct for violating the Official Secrets Act and The Internal Security Act,” Dr Thabane further stated.

In March this year, King’s Counsel Advocate Motiea Teele criticised Dr Thabane for contemplating criminal prosecution against the three lawyers for “illegally” obtaining the government gazette that announced the appointment of Justice Mokgoro.

Adv Teele said Dr Thabane’s stance on filing criminal charges was wrong since the government gazette was merely a communication tool to inform the public about the appointment.

He said Justice Mokgoro’s appointment was effective from the moment that His Majesty King Letsie III accepted and acted on the advice of the Prime Minister to appoint her.

“I have never seen in my experience as a lawyer a Prime Minister who, instead of answering the merits of the case, threatens people with criminal prosecution.

“The government gazette is just a newspaper. It merely informs the public about what happened when they (the Prime Minister and His Majesty) met in the palace where we cannot go.

“It (the government gazette) does not constitute the appointment, but it only publishes the appointment. The applicants are not saying Justice Hlajoane is a bad Judge but they are merely saying she was appointed when Justice Mokgoro was already appointed. If Justice Mokgoro was indeed appointed, when was she removed,” Adv Teele said.

Adv Monaheng Rasekoai, who is representing King Letsie 111 and Justice Hlajoane, however, argued that the lawyers should be prosecuted because they had unlawfully obtained the gazette announcing Justice Mokgoro’s appointment.

Dr Thabane’s lawyer, Adv Christopher Lephuthing, concurred with Adv Rasekoai, saying the lawyers should be prosecuted for fraudulently obtaining a document that contained classified information.

“The Prime Minister is not threatening applicants as they claim. To him they are just ordinary three men. They must go to the police and explain how they obtained a classified document. They should go and report themselves to avoid the embarrassment.

“The applicants are a very dangerous group of people because they obtain things criminally. By obtaining classified documents to destabilise the country, they should be dealt with accordingly.

“The Prime Minister says these three men are dangerous to the nation and security of this country,” Adv Lephuthing said.

Adv Teele replied by saying that he and the applicants felt “insulted by our colleagues calling us criminals”.

However, the date for the lawyers’ court appearance has not been set. Police Spokesperson, Superintendent Mpiti Mopeli, this week told the Lesotho Times that investigations were ongoing into the matter.

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