Govt demands answers from SADC

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Regional bloc dumps SA lawyers paid M100 000 by government to represent Phumaphi  in Hashatsi lawsuit

’Marafaele Mohloboli

THE government is demanding answers from the Southern African Development Community (SADC) after the regional body dumped a South African law firm it had requested the Attorney General to engage and represent the Phumaphi Commission in its legal battle against Lieutenant-Colonel Tefo Hashatsi.

Justice Phumaphi had told the government that he would be represented by either Advocate PU Fischer or Adv PJ Loubser through Lovius Block Attorneys of Bloemfontein in the lawsuit.

In his application filed before the High Court on 17 October 2015, Lt-Col Hashatsi is challenging the legitimacy of the commission which was established by SADC to establish the circumstances surrounding the army’s fatal shooting of former Lesotho Defence Force (LDF) commander Maaparankoe Mahao.

Lt-Gen Mahao was killed outside Maseru on 25 June 2015, and the LDF later said he was resisting arrest when he was shot.

After the killing, Prime Minister Pakalitha Mosisili sought SADC’s assistance to probe the tragedy, resulting in the establishment of the Phumaphi-led commission which conducted its investigations between 31 August and 23 October in Maseru and Thaba-Nchu, South Africa.

Lt-Col Hashatsi was among several people interviewed during the probe but the Special Forces Commander later accused the commissioners, in particular Justice Phumaphi, of being biased against him. The LDF officer said, in his court application, that the commissioners’ line of questioning made him appear a suspect in Lt-Gen Mahao’s killing, which he said violated his constitutional right to be presumed innocent until proven guilty by a competent court.

Because of the alleged bias, Lt-Col Hashatsi wanted 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 declared illegal.

Lt-Col Hashatsi also wants the commission declared illegal for allegedly violating its terms of reference by hearing evidence in South Africa when it had been established by Lesotho laws.

After the lawsuit, Foreign Affairs Minister, Tlohang Sekhamane, advised Justice Phumaphi that the office of the Attorney General was available for “either seeking advice and/or legal representation of counsel of your own choice mandated by the Attorney General at the expense of the State”.

This advice is contained in a letter dated 22 October 2015, a copy of which the Lesotho Times managed to obtain.

In response, Justice Phumaphi said he wanted to be represented by the South African firm.

After the communication, government engaged Lovius Block Attorneys, and deposited M100 000 into the company’s trust account—only to realise later that the commission had engaged a local lawyer, Advocate Molefi Ntlhoki.

Foreign Affairs and International Relations PS, ’Mathoriso Monaheng then wrote to SADC Executive Secretary Dr Stergomena Lawrence Tax on 15 December 2015, demanding an explanation on this development which she said was never communicated to the government.

Part of the letter reads: “During the course of its proceedings, the commission was cited in litigation before the High Court of Lesotho (Civil Application 309- Hashatsi vs Prime Minister and Others).

“In fulfillment of its commitment and undertaking, the government, through the office of the Attorney General, contributed and actually paid an amount of M100 000 towards the legal fees of Lovious Block Attorneys of Bloemfontein, who had been presented to us by the commission as their legal representatives.

“We had also, after due confirmation, written to the said Lovious Block Attorneys, to appoint them to represent the commission, as the commission’s own chosen representatives.

“Having gone through all the exercise above and completed it (difficult and tedious as it has been at some stages), we now learn that instead, SADC has engaged the services of Molefi Ntlhoki KC, a local practicing advocate, and that, without a word to us that they have since abandoned Lovius Block Attorneys.
“In the meantime, there is M100, 000 which is earmarked for the trust account of Lovius Block Attorneys per a written arrangement with SADC itself.”

According to Ms Monaheng, Dr Tax owed the government an explanation regarding the new turn of events and what would happen to the deposited M100 000.

“I think we are entitled to urgent clarification on the part of the Executive Secretary (and the SADC Chairman President Ian Khama of Botswana) as to really what it is that they want us to do in relation to the money.

“Are we now to withdraw the mandate we gave Lovius Block Attorneys, including to mandate different attorneys to represent SADC? And who are those? What exactly is SADC expecting us to do in all these circumstances? What of Advocate Ntlhoki KC, of whom we know nothing about from SADC?” Ms Monaheng asks Dr Tax.

Asked if Dr Tax had responded to her letter, Ms Monaheng said she had not, while Dr Tax and Lovius Block Attorneys were not immediately available for comment.

On his part, Advocate Ntlhoki yesterday told the Lesotho Times: “Nobody was appointed to represent Phumaphi and his Commission until I was approached by Phumaphi himself to handle that case. He signed me a power-of-attorney and that’s how I got engaged. I even had to put aside three of my cases due to the urgency of the Commission’s case.”

Meanwhile, Lt-Col Hashatsi’s lawsuit continues in the High Court tomorrow.

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