D-Day for Thetsane
Director of Public Prosecutions to know his fate today regarding his retirement age
THE Director of Public Prosecutions (DPP), Leaba Thetsane (King’s Counsel), will know his fate today regarding his retirement age when the Court of Appeal delivers judgment on the issue.
Advocate Thetsane appealed against a Constitutional Court judgment which ruled he should retire at the age of 55 years.
The Court of Appeal reserved judgment on the issue on 20 October 2014 after hearing arguments from Advocate Thetsane’s lawyer, Motiea Teele and government’s legal representative, Kananelo Mosito, on the issue.
However, the Court of Appeal this week indicated judgment would be delivered today on the case.
According to Advocate Teele (KC), the Constitutional Court erred in ruling Advocate Thetsane’s retirement age should be 55 years as per the country’s constitution, and not 60 as stipulated by the Public Service Act of 2005.
The court made the ruling on the grounds that although he is a public officer, the DPP is not governed by the Public Service Act of 2005, but the constitution of Lesotho.
However, the Constitutional Court’s judgment did not sit well with Advocate Thetsane (56), who then lodged a case before the Court of Appeal.
Advocate Thetsane’s lawyer, Advocate Teele, told the court that the Public Service Act of 2005 applied to his client as he is a public officer as defined by that particular law.
Advocate Teele added when the Act came into force, it provided that all public officers who were already employed had the right to choose whether they wanted to retire at 55 or 60 years of age.
The Constitutional Court, he added, misinterpreted the constitution when it said parliament should have made a specific law for Advocate Thetsane to change his retirement age.
“The court says an Act should be made for a specific person, but I submit this cannot be the correct position.
“The mere fact that the retirement age of the DPP is contained in the constitution does not mean the Public Service Act is not applicable to him,” he said.
The Public Service Act, Advocate Teele further said, provides that an officer could elect if he or she wishes to retire at the age of 60 years as may be prescribed by the Minister of Public Service.
However, Advocate Teele added: “Failure of the minister to make prescription did not prevent the appellant (Thetsane) from making the election.
“He made the election and it was noted by the Principal Secretary.”
On the other hand, Advocate Mosito, for the government, said the Constitutional Court was correct in holding that Advocate Thetsane’s retirement age should be 55 years as stipulated by the constitution.
The Public Service Act, he added, was only applicable to Advocate Thetsane regarding his appointment as the DPP.
“Except in relation to his appointment, the Act does not apply to him.
“Our submission is that the section (of the constitution that deals with the law to alternate the DPP’s retirement age) is couched in mandatory terms. It specifically says the minister shall make prescription for the election. If the minister does not prescribe, nothing should be done. Instead, the appellant (DPP) should have approached the court of law for an order directing the minister to do his job,” he said.
The ruling will serve as a landmark judgment as Advocate Thetsane’s case is similar to Attorney General Tšokolo Makhethe’s case, which is still pending in the High Court.