Mohalenyane Phakela
THE Lesotho Police Staff Association (LEPOSA)’s Constitutional Court battle with Police Commissioner Holomo Molibeli failed to take off on Tuesday due to the ill-health of the presiding judge Thamsanqa Nomngcongo.
LEPOSA wants the Constitutional Court to strike down a section of the Police Service Act which empowers the police commissioner to dismiss police officers without affording them a hearing.
LEPOSA, Inspector Moraleli Motloli and Lance Sergeant ‘Mathebe Motseki are the applicants. They are represented by Advocate Hoolo Nyane.
Commissioner Molibeli, Police and Public Safety Minister ‘Mamoipone Senauoane and Attorney General Haae Phoofolo are the first to third respondents respectively. They are represented by Adv Tekane Maqakachane.
The hearing was supposed to begin on Tuesday before Justices Nomngcongo, Sakoane Sakoane and Polo Banyane.
However, it failed to proceed after Justice Sakoane stated that Justice Nomngcongo could no longer proceed with the matter due to an undisclosed illness.
“The presiding judge (Justice Nomngcongo) is indisposed and will no longer participate in this case,” Justice Sakoane said.
“I was advised that he requested that he be substituted. However, the matter is already part-heard and we cannot have another judge who is not privy to arguments joining the bench. What should happen when another judge falls sick in the middle of a case?” asked the judge.
Justice Sakoane further asked Adv Nyane and Maqakachane whether the case should proceed with just two judges. But the two lawyers objected to this, saying they wanted the ailing Justice Nomngcongo replaced so that there would be three judges as per the practice in constitutional cases.
Justices Sakoane and Banyane then adjourned the matter to today to allow Adv Nyane and Maqakachane to file additional papers justifying why the case cannot proceed with just two judges.
In their court papers filed last week, the applicants want the court to strip Commissioner Molibeli of his powers to fire them without a hearing.
They also want the court to revoke Commissioner Molibeli’s dismissal of Lance Sergeant Motseki.
They further argue that Section 31(1)(i) of the Police Act which Commissioner Molibeli has relied upon to dismiss their members should be declared unconstitutional because it is inconsistent with sections 12(8) and 18 of the constitution which provide for a fair hearing and freedom from discrimination respectively.
Section 12(8) of the constitution states that, “any court or adjudicating authority…shall be independent and impartial and where proceedings…are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time”.
Section 18 of the constitution states that, “… no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority”.
Before the main application is heard, the Constitutional Court will have to first rule on the applicants’ preliminary application to bar Adv Phoofolo from hiring a private lawyer to represent him and his co-respondents in the matter.
Adv Phoofolo had hired Adv Tekane Maqakachane to represent them. But according to Adv Nyane, the attorney general cannot hire a private lawyer to represent the state. He should either appear himself or instruct juniors from his office to handle the case.
