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Fired NSS officer sues govt for M5m

by Lesotho Times
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…Mofomobe’s ‘girlfriend’ says her dismissal was unfair as she was not afforded a disciplinary hearing.

Moorosi Tsiane/ Mohalenyane Phakela

FIRED National Security Services (NSS) employee, Ithabeleng Pitso, is demanding M5 million from the government for defamation and unfair dismissal.

Ms Pitso hogged the headlines in June this year after the spy agency accused her of feeding Basotho National Party (BNP) leader, Machesetsa Mofomobe, with classified NSS information. The NSS also claimed Ms Pitso was doing this because she was allegedly having an extramarital affair with Mr Mofomobe.

These allegations were made by NSS director-general, Pheello Ralenkoane, in a constitutional case in which Mr Mofomobe was challenging the constitutionality of section 26 of the National Security Service Act 1998. This Act had empowered the NSS to seize his mobile phones and those of Democratic Congress (DC) youth league president Moeketsi Shale. Messrs Mofomobe and Shale won the case which was before the court in June this year.

Mr Ralenkoane had attached a copy of Ms Pitso and Mr Mofomobe’s WhatsApp conversation to his papers opposing the BNP leader’s application to prove that the two were lovers and exchanging national security information.

Ms Pitso was recruited into the NSS in January 2022.

After their court victory, Mr Mofomobe subsequently wrote a letter to Adv Motsieloa KC, demanding M5 million for defamation. The said letter was copied to Mr Ralenkoane.

The BNP leader further held a press conference the following day where he accused Mr Ralenkoane of trading NSS promotions for sex.

In her founding affidavit filed at the High Court last week, Ms Pitso submits she was fired from the spy agency on 31 May 2023 without a disciplinary hearing after she was accused of sharing crucial NSS information with Mr Mofomobe.

Prime Minister Sam Matekane, the NSS, Minister of Justice, Law and Parliamentary Affairs, Nthomeng Majara, Mr Ralenkoane and Attorney-General Advocate (Adv) Rapelang Motsieloa King’s Counsel (KC), are cited as first to fifth respondents respectively, in the application.

According to the affidavit, Ms Pitso says her ordeal started in February 2023 when she was accosted by certain high-ranking NSS officials at the agency’s Maseru headquarters.

“Two infuriated women from the NSS Security Section namely, Mrs Lebusa and another, came in and shut all the doors and windows of the whole NSS headquarters building. They then ruthlessly drove and escorted me upstairs, locking my colleagues in the open-source room. Upstairs, I was served with a warrant of arrest of my phones issued by the Minister in the Prime Minister’s Office, Limpho Tau,” Ms Pitso narrates in her court papers.

“There I found other angry NSS officials namely Regional Security Officer (RSO) Mapakana, District Security Officer (DSO) Mbojwa and one Ntepe. I tried to resist the arrest of my phones, but I was threatened with violence and forced to surrender my phones and their passwords.

“I finally complied under immense duress to protect my own personal security and life, especially when I have previously been viciously assaulted and grievously injured by NSS officials. Following the arrest and search of my phones, a grey Hisense E50 and Blue Huawei, I was charged for having given confidential NSS information to the BNP leader.”

Ms Pitso does not state when and why she had previously been assaulted as she claims.

On 18 and 25 April 2023, Ms Pitso was formally charged for allegedly revealing classified information and labelled a security risk by the NSS.

Ms Pitso submits she was subsequently supposed to appear before a disciplinary committee on 2 May 2023, but the hearing did not materialise as her then legal representative, Adv Kelebone Monate, was asked to write a letter of competence to represent her in the inquiry. The matter was then deferred to 16 May 2023, but could not proceed again on that date as Ms Pitso was not feeling well and produced a doctor’s note to that effect. She further claims her other lawyer, Adv Christopher Lephuthing, was told by the disciplinary tribunal on 22 May 2023 that a new hearing date would be communicated as Ms Pitso was on sick-leave.

“To my shock and surprise, I found the NSS dismissal confirmation on 31 May 2023. It appears that the hearing was made in my absence after my lawyer, Adv Lephuthing, was promised that the next hearing date was to be communicated. I have a reasonable apprehension that the disciplinary tribunal was partially in favour of the state/NSS and against me.

“On 7 June 2023, Adv Lephuthing penned a letter regarding this default judgment and the NSS duly replied on 16 June 2023. On 5 July 2023, my new legal representative (Adv Mpeli Mohlabula) wrote a letter advising and warning the NSS to reinstate me to work and restore my phones.”

She says the NSS refused to release one of her phones on 18 July 2023 and also did not reinstate her.

Ms Pitso denies ever giving any classified information to Mr Mofomobe and insists she was used as a scapegoat in a political battle between him and her boss, Mr Ralenkoane.

“I have never given any classified, confidential and/or highly confidential information and/or any NSS information to him (Mofomobe) and/or any stranger at all. On the other hand, I have since learned that there is a political battle between the NSS director-general and the BNP leader for reasons unknown to me, and in the process, the NSS boss abused his public office powers and fought his battles through me to the prejudice of my fundamental rights.

“The respondents erroneously issued a warrant of arrest of my phones motivated by lack of reasonableness and diligence, but to use me as a scapegoat to fight their political battles against the BNP leader. And indeed, following the intrusion into my private conversations, they copied information (from my phones) and issued a warrant of arrest of the BNP leader’s phones. They acted absent any iota of evidence that I am a security risk. The information in my phones was clearly unnecessary for the operations of the NSS as countenanced by section 26 of the NSS Act.

“Firstly, the ensuing proceeding was invalid and unconstitutional since it was founded on illegally obtained evidence. Secondly, the warrant and its effect violated my rights to dignity and informational privacy,” Ms Pitso contends, adding she now wants the Constitutional Court to order the government to pay her M5mllion in damages as compensation for her “unfair dismissal/indignity/

defamation/violation of her privacy/fair trial rights”.

She is also seeking a constitutional review declaring the seizure of her mobile phones invalid and unconstitutional, as well as all the processes that ensued ranging from searching, copying of information, instigation of disciplinary proceeding and her ultimate dismissal.

Meanwhile, in outlawing the confiscation of Messrs Mofomobe and Shale’s phones, the constitutional panel of Chief Justice Sakoane Sakoane and Justices Fumane Khabo and Moneuoa Kopo said the NSS had no business in investigating criminal cases as that was the duty of the police.

Justices Khabo and Kopo concurred with Justice Sakoane as they outlawed section 26 of the National Security Service Act 1998.

“Section 26 of the NSS Act authorises issuance of executive warrants to interfere with the applicant’s rights to informational privacy and freedom from arbitrary seizure of their cellphones.

“The procedure outlined therein requires that the applications for warrants and their issuance meet the thresholds of information sought being of substantial value in the investigation of the alleged crimes and there being no other means of obtaining the information.

“There are no safeguards to guard against abuse of the power to issue warrants. This being a process presided over by a minister without external independent supervision, the procedure of issuance of warrants under section 26(2) lacks the necessary safeguards to provide adequate and effective guarantees against arbitrariness and the risk of abuse. For this reason, the section 26(2) procedure is declared unconstitutional.”

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