Moorosi Tsiane
THE highly anticipated constitutional case in which the Director of Public Prosecution (DPP) Hlalefang Motinyane is challenging the government’s decision to remove her from office failed to take off this week.
This after DPP Motinyane challenged Chief Justice Sakoane Sakoane’s decision to assign a panel of three judges to preside over her case.
She contends that the Chief Justice overstepped his authority by assigning the three judges. The task should have been left to the judiciary’s registrar, as per the court’s new rules, she claims.
DPP Motinyane’s lawyer, Advocate Tekane Maqakachane, raised the issue when the case was about to start before a panel of three judges: Justices Fumane Khabo (presiding), Moneuoa Kopo, and Tšeliso Mokoko.
Adv Maqakachane argued that Justice Sakoane’s decision to assign three judges violated the new 2024 High Court rules.
“We are here under rules 86 and 87 of the High Court rules, challenging the constitutionality of the DPP’s removal. This is not a case against statutory bodies, as the Prime Minister, the Minister of Justice and Law, and the Attorney General are not statutory bodies. Therefore, we believe this case should not have been heard by a panel of three judges. According to the new rules, a single judge is competent to hear a constitutional case,” Adv Maqakachane argued.
He further contended that Justice Sakoane exceeded his authority by constituting a panel, stating that his role is to regulate the appointment of judges, not allocate cases.
“The Chief Justice does not have the power to assign three judges under Section 12 of the High Court Act. His responsibility is to regulate, not allocate judges. We submit that it was improper for him to assign this case, let alone to three judges. The composition is wrong, particularly since the old 2000 High Court rules have been replaced by the 2024 rules,” added Adv Maqakachane.
On behalf of the respondents, Advocate Jaco Roux SC defended the Chief Justice’s decision, arguing that constitutional reviews can be heard by three judges under the rules, and that the Chief Justice has the discretion to decide otherwise.
“This application is for constitutional review, and it is appropriate for it to be allocated to three judges, as it involves constitutional litigation. The High Court rules state that the Chief Justice has the discretion to decide how cases are allocated,” Adv Roux argued.
He further asserted that the DPP would not suffer any prejudice by having the case heard before a panel of three judges and urged the court to dismiss the application, allowing the matter to proceed before the panel.
After hearing submissions from both parties, Justice Khabo reserved the ruling on the matter, promising it will be delivered soon.
DPP Motinyane filed the Constitutional Court application in August 2024, seeking to prevent her removal after Prime Minister Sam Matekane’s government initiated efforts to oust her on grounds of alleged gross incompetence. She was served with a show-cause letter, demanding an explanation as to why an impeachment tribunal should not be convened to investigate her fitness for office.
DPP Motinyane has claimed she is being targeted for defending the independence of her office, after refusing directives to drop treason and murder charges against Health Minister Selibe Mochoboroane and Lesotho Congress for Democracy (LCD) leader Mothetjoa Metsing—both political allies of Prime Minister Matekane.
Attorney General Rapelang Motsieloa had not denied this, but instead said the Deputy Prime Minister had merely “suggested” to DPP Motinyane to drop charges against Messrs Metsing and Mochoboroane. She had not issued an “order” for that to be done, he said.
