…accuse her of delay tactics
Moorosi Tsiane
AN irate panel of Constitutional Court judges tore into suspended Director of Public Prosecutions (DPP) Hlalefang Motinyane, accusing her of deliberately frustrating her own case in which she is challenging Prime Minister Sam Matekane’s efforts to remove her from office.
The rebuke came as the court dismissed yet another of Advocate (Adv) Motinyane’s interlocutory applications, this time calling for the recusal of the three judges hearing her constitutional challenge.
Earlier this month, the suspended DPP launched a constitutional application seeking to block Mr Matekane from impeaching her.
She then filed several interlocutory applications, the latest being a recusal application targeting three judges; Fumane Khabo, Tšeliso Makoko, and Moneuoa Kopo who are presiding over her case.
Their appointments by Chief Justice Sakoane, who is also a respondent, present a conflict of interest, she argues.
Meanwhile, the Law Society of Lesotho has also filed an urgent application challenging Adv Motinyane’s suspension, describing it as unconstitutional and a threat to judicial independence.
Justice Tšeliso Mokoko earlier this month ordered that the case by the Law Society returns to court on August 4, 2025 for mention.
Advocate Motinyane’s work troubles, which have been playing out for over a year, culminated in her suspension from office by Mr Matekane earlier this month with an acting DPP having since been appointed in her place while Motinyane continues to fight her suspension in court.
Since its inception, the case has been dogged by a string of procedural challenges, many filed by Adv Motinyane herself, which have delayed the main hearing and appear to have tested the court’s patience.
This week Justice Mokoko described Motinyane’s conduct as “frustrating”.
“This application has proved to have characteristics of frustrating the opponent or that the applicant has not weaned from the old practice . . . This will not be countenanced in the future,” declared Justice Mokoko, as he delivered the court’s ruling this week.
DPP Motinyane’s troubles started when Prime Minister Matekane kick-started the process to establish a tribunal to impeach her from office.
In a letter dated 14 May 2024 to Adv Motinyane, the Prime Minister gave her a 10-day ultimatum to show cause why he should not recommend to His Majesty King Letsie III to establish an “Impeachment Tribunal” to consider her fitness to remain in office.
Mr Matekane’s letter followed spirited efforts by his Justice and Law Minister, Richard Ramoeletsi, to compel Adv Motinyane to accept a demotion to a lower position of advisor to Attorney General (AG) Rapelang Motsieloa or to accept a diplomatic posting to Geneva.
Adv Motinyane rejected both options preferring to fight to remain in her statutory post.
At that time Mr Ramoeletsi denied that moves were afoot to remove the DPP in interviews with the Lesotho Times, further denying ever proposing to redeploy DPP Motinyane to the AG’s office.
Adv Motinyane filed the constitutional application in August 2024, after receiving the show cause letter demanding that she justify why a tribunal should not be appointed to assess her fitness to remain in office.
On 23 October 2024, when the substantive matter was scheduled to proceed, her lawyer, Adv Tekane Maqakachane, filed a review application questioning the legality of the appointment of the judges presiding over the case.
Adv Motinyane argued that Chief Justice Sakoane Sakoane had erred in assigning the matter to Justices Khabo, Mokoko and Kopo, arguing that the new 2024 High Court and Civil Litigation Rules do not empower the Chief Justice to constitute panels. She maintained that while the Chief Justice can regulate the appointment of judges, the actual allocation of judicial panels was outside his authority.
That application was dismissed on 4 December 2024, with the court affirming that the Chief Justice, as head of the judiciary, had the constitutional authority to assign judges to cases.
Following that decision, the court directed the parties to file heads of argument in preparation for the substantive hearing and set a timeline for compliance.
Adv Motinyane, instead, filed a fresh interlocutory application, this time seeking the recusal of the same three judges, on grounds that they had been appointed by Chief Justice Sakoane, who is himself a respondent in the main matter.
She argued that the three judges were recently appointed and as junior to Chief Justice Sakoane, they were under his supervision, therefore their direct association with him could unduly influence their judgment and compromise their impartiality in a case where he is personally implicated.
However, Prime Minister Matekane, represented by Adv Guido Penzhorn, countered that Adv Motinyane’s claims were res judicata (already adjudicated by the court in a prior ruling) and that the principle of res judicata barred her from raising the same issue again under the guise of a different application.
Justice Mokoko dismissed her argument and ruled that the application lacked merit.
“The issue regarding the period of appointment of the individual judges on this panel is neither here nor there. The critical issue is that each judge has taken an oath of office to dispense justice without fear or prejudice.”
He took issue with the DPP’s implication that the judges lacked independence.
“It is regrettable that the applicant, who is not only an advocate of this Court but also a Director of Public Prosecutions, would cast such aspersions on the judges’ integrity and competence.”
Justice Mokoko reminded the court that the loyalty of every judge is to the Constitution and not to any individual, including the Chief Justice.
He said Adv Motinyane had failed to demonstrate reasonable suspicion of bias.
“We have found that the applicant has not demonstrated that there was a suspicion that we might be biased. The applicant has further failed to prove that a reasonable person in the applicant’s position would have had a suspicion. Lastly, the applicant has not demonstrated any reasonable grounds for suspicion.”
He also described the application as an abuse of court process, pointing out that the court had already charted the way forward during a case planning conference.
“It would be remiss of us not to address the approach of the applicant in raising another preliminary issue when the court had already directed on the way forward through the case planning conference.”
Justice Mokoko supported the government’s objection that the matter was res judicata.
“We allowed the institution of the present application even after the road of the proceedings had been mapped, thinking that the applicant may have come with genuine grounds…”
Ultimately, the court dismissed the recusal application and ordered Adv Motinyane to pay costs.
“It is for these reasons that this court makes the following Orders: The respondents’ objection of res judicata is upheld, and the recusal application is dismissed with costs,” Justice Mokoko ruled.
Adv Motinyane now has until 11 August 2025 to file her heads of argument in the main case while the government is to file its heads by 25 August 2025.
The hearing date is yet to be determined.
