LIEUTENANT-COLONEL Tefo Hashatsi, has lost a court bid to have the SADC inquiry into the death of former army commander Maaparankoe Mahao declared illegal.
The Lesotho Defence Force (LDF) Special Forces commander had filed an urgent application on 16 October 2015 before the High Court challenging the commission’s legitimacy, and arguing that it had violated terms of its formation by hearing evidence in South Africa while it was established by a Lesotho law.
Lt-Col Hashatsi also accused the commission, and in particular its chairman Justice Mpaphi Phumaphi, of bias against him. Lt-Col Hashatsi accused the Botswana judge of making him appear as if he was the prime suspect in the killing of former LDF commander Maaparankoe Mahao.
Lt-Gen Mahao was shot dead on 25 June 2015 by his army colleagues while being arrested for allegedly being the ringleader of a group of soldiers who had plotted to topple the LDF command.
However, on Monday senior High Court judge, Justice Tšeliso Monaphathi, dismissed the challenge saying it was premature for Lt-Col Hashatsi to seek to nullify the SADC commission before it had completed its inquiry. The report was tabled in the National Assembly on Monday by Prime Minister Pakalitha Mosisili.
“Only after the commission had released its report could he (Lt-Col Hashatsi) challenge it. It is true, according to Ms (Anna-Marrie) de Vorse, that the attack was premature,” he said.
Senior Counsel de Vorse was representing the late Mahao’s wife, ‘Mamphanya, who became the lawsuit’s fifth respondent after asking the court to be part of the proceedings.
The other respondents from first to fourth respectively were Dr Mosisili, Justice Phumaphi, the SADC Commission and Attorney-General Tšokolo Makhethe. Rights group Transformation Resource Centre also joined the case as “friends of the court”.
Justice Monaphathi said Lt-Col Hashatsi could still challenge the legality of the SADC Commission of Inquiry after its release.
“I still repeat that Mr Hashatsi has a right to challenge the commission,” he said.
“The initial challenge was premature because it came by way of a review, and a review is only done on completed proceedings.”
The judge rejected Lt-Col’s Hashatsi argument that the commission acted beyond its powers by gathering evidence in Thaba-Nchu, South Africa where exiled opposition leaders and members of the army gave testimonies.
“There were reasons why this was done,” Justice Monaphathi noted.
“Since the commission was a tribunal in terms of the Public Inquiries Act, I didn’t find any serious statement in our law preventing it from sitting either in Welkom, Mooderport or anywhere.”
However, Justice Monaphathi also rejected Justice Phumaphi and the SADC Commission’s argument that they were immune from litigation in Lesotho.
“I found this submission problematic. In the first place, the Public Inquiries Act operationalised the commission,” he said.
“Therefore, the commission must operate in terms of the laws of Lesotho.”
The judge said Lt-Col Hashatsi was justified in making a High Court application in October last year not to appear before the commission for the second time because of the “worrisome” attitude of Justice Phumaphi.
“He (Lt-Col Hashatsi) denied himself an opportunity to appear before the commission because the attitude of the chairman would have manifested itself,” said Justice Monaphathi.
“There were some issues that were worrisome (in Justice Phumaphi’s line of cross-examination) such as the statement that ‘I put it to you’.
“I have never heard (such line of questioning) in this jurisdiction coming from the bench. It suggested that the chairman new something that the witness didn’t know.”
The judge did not make any order with regards to the costs of suit.
. . . as Special Forces commander appeals ruling
LESOTHO Defence Force (LDF) Special Forces commander, Lieutenant-Colonel Tefo Hashatsi, has appealed a High Court ruling dismissing his bid to have the SADC inquiry into Lesotho’s instability declared illegal.
Justice Tšeliso Monaphathi dismissed the challenge on Monday, saying it was premature for Lt-Col Hashatsi to seek to nullify the SADC Commission before it had completed its inquiry.
However, on the same day, Lt-Col Hashatsi lodged an appeal in the Court of Appeal.
In his grounds of appeal, Lt-Col Hashatsi says: “The learned judge erred and misdirected himself in holding as he did that the proceedings were brought prematurely in view of the fact that at the time the proceedings were instituted, namely on 16 October 2015, the unchallenged evidence indicated that the commission was due to complete its business on 21 October 2015.
“The learned judge erred and misdirected himself in dismissing the application when there was evidence proving and substantiating the relief sought. Had the learned judge brought his mind to bear on the evidence as a whole he should have granted the application.”
He also challenges the judge’s ruling that the commission acted within its powers by gathering evidence in Thaba-Nchu, South Africa where exiled opposition leaders and members of the army gave testimonies.
“The learned judge erred and misdirected himself in holding as he did that the second and third respondents, Justice Mpaphi Phumaphi and the Commission respectively, were entitled to sit and hear evidence in the Republic of South Africa,” Lt-Col Hashatsi argues.
“The learned judge ought to have held that such sitting and hearing was ultra vires (beyond their legal power) the provisions of section 3 of the Public Inquiries Act read with legal notices number 75 and 88 of 2015 that defined the nature and extent of their mandate.”
He further argues that: “The learned judge erred and misdirected himself in not reviewing and setting aside the proceedings of the second and third respondents as having been vitiated by an error of law in that he should have held that the proceedings before these respondents should have been conducted according to the provisions of the Public Inquiries Act.
“Had the learned judge brought his mind to bear on the evidence before him, he should have held that the second and third respondents were bound by the provisions of the Public Inquiries Act.”
He wants the probe to be declared illegal because some of its members, including a Mr Waly, were not “legally commissioned”, and says the respondents should explain to the court
Lt-Col Hashatsi also complains that the judge should have ruled in his favour to restrain Justice Phumaphi and the commission from making any findings against him.
Meanwhile, the first session of the Court of Appeal is scheduled for April this year.