THE Court of Appeal has reserved judgment in a case in which Attorney General (AG) Tšokolo Makhethe wants the appointment of Justice Kananelo Mosito as President of the Court of Appeal, nullified.
The AG lodged the case in April this year after losing the same challenge in the Constitutional Court the previous month.
He had asked the Constitutional Court to nullify Justice Mosito’s employment on the grounds that then Prime Minister Thomas Thabane had unilaterally advised King Letsie III to make the appointment in January this year.
In papers filed before the Constitutional Court on 12 February 2015, Advocate Makhethe had argued cabinet had the powers to make such recommendation, while the Prime Minister’s duty was only to communicate the decision to His Majesty.
However, the Constitutional Court dismissed the case on 3 March 2015, saying the AG did not have the authority or locus standi to sue the respondents as he was their legal advisor.
King Letsie III, Dr Thabane, Law, Constitutional Affairs and Human Rights minister Haae Phoofolo, Justice and Correctional Services minister Motlohi Maliehe and Justice Mosito had been cited as First to Fifth respondent respectively.
But when the Court of Appeal convened on Monday, it reserved judgment and did not give a date when a ruling would be made. Advocate Makhethe is being represented by King’s Counsel Motiea Teele, while Senior Counsel Jeremy Gauntlett appears for the respondents.
During court proceedings, Advocate Teele maintained the Constitutional Court misdirected itself in holding that Advocate Makhethe could not sue the government.
“The Attorney General alleges he has a duty to uphold the constitution. That is the basis on which he approached the court.
“It is my submission that the Attorney General has a duty to advise the government and when he finds there is violation of the constitution, the first thing he does is come to court.
“The Attorney General can take legal action where no one can do so. He can take action on matters of public importance,” Advocate Teele said.
But in litigating against government, the lawyer said Advocate Makhethe should not disclose certain information given to him by government in confidence.
“Due to the lawyer-and-client relationship, he cannot disclose what was discussed between him and the Prime Minister or cabinet. He can only rely on the facts available in the public domain,” he said.
Yet Advocate Teele maintained the Constitutional Court should not have dismissed the Attorney General’s case, while Advocate Gauntlett said the dismissal was in order.
Meanwhile, the case was before Acting Justices F.D.J. Brand, A. Cachalia, J.B.Z. Shongwe, M.M.L. Maya and M.J.D. Wallis, who are all judges of the Supreme Court of Appeal in South Africa.
They were sworn in as Acting Judges of the Court of Appeal on Monday by Chief Justice Nthomeng Majara.
In the notice the Attorney General filed last month, he wants the Court of Appeal to declare that the Constitutional Court erred and misdirected itself by ruling he did not have the locus standi to institute a constitutional challenge against the government or His Majesty the King.
“The Attorney General has such locus standi in terms of Section 98 (2) (c) of the Constitution, which reposes on the Attorney General the duty to take necessary legal measures for the protection and upholding of the Constitution and other laws of Lesotho.”
He further seeks an order declaring that the Constitutional Court erred in holding that he could only sue the government when there is political interference in the discharge of his functions.
“The Constitution could not have sought to empower the Attorney General to uphold it and other laws and then at the same time subject this responsibility and power to the disposal of the violates,” he charged.
He also argues the Constitutional Court erred and misdirected itself when holding that Section 88 (2) of the Constitution is only applicable in respect of advice given to the King on policy matters and not appointments.
He further contends the court made a mistake in deciding that the Prime Minister does not need authorisation and approval of cabinet before making the recommendation to the King.
“The Court erred and misdirected itself in holding that the appointment of the Fifth Respondent (Justice Mosito) did not require to be referred to cabinet for its decision and approval before the Second Respondent (Dr Thabane) could make a recommendation for appointment to the First Respondent (the King) in as much as collective decisions of cabinet are communicated to His Majesty the King by the Prime Minister as his advice,” he argues.
Advocate Makhethe also wants the apex court to discard the Constitutional Court’s conclusion to accept Dr Thabane’s evidence that he informed the cabinet about Justice Mosito’s appointment.
There were conflicting statements on whether cabinet was informed about the appointment as Deputy Prime Minister Mothetjoa Metsing, in his supporting affidavit, had said there was never a cabinet meeting to discuss Justice Mosito’s appointment.
However, Dr Thabane maintained in court papers that there was a cabinet meeting in which the matter was discussed.
The Constitutional Court ruled then ruled since there was a dispute of fact the court opted for the version of events as stated by Dr Thabane.
But in his papers, Advocate Makhethe wants the Court of Appeal to declare that: “The court a quo consequently erred in holding that the issue of whether or not the second Respondent referred the appointment of Fifth Respondent constituted a material dispute of fact because the second Respondent neither produced a date of the supposed meeting of cabinet where the appointment of the fifth respondent was discussed nor did the Second Respondent furnish any minutes of such meeting.
“Even assuming it is accepted that the Second Respondent had informed cabinet that would not be sufficient compliance with the provisions of section 88 (2) (of the constitution), which requires cabinet to decide on the recommendation to be made to the First Respondent.”
He said there was overwhelming grounds by which his application should have succeeded in the Constitutional Court.
“Consequently, the Court a quo erred and misdirected itself in not granting the application as prayed in view of the welter of evidence presented before it,” he noted.
Justice Mosito was appointed President of the Court of Appeal on 15 January, 2015, and his swearing-in ceremony held on 27 January 2015.