Pascalinah Kabi
SUSPENDED director general of the Directorate on Corruption and Economic Offences (DCEO), Advocate Mahlomola Manyokole, has petitioned the Court of Appeal to overturn the High Court judgement upholding Prime Minister Moeketsi Majoro’s decision to appoint a three-man tribunal to investigate his fitness to hold office.
The tribunal is headed by Retired Justice Teboho Moiloa, who Adv Manyokole had sought to have disqualified on the grounds that he could be biased against him because he was being investigated by the DCEO for money laundering and corruption. Other members of the three-person tribunal are High Court Judge Polo Banyane and retired judge Semapo Peete.
In his 18 February 2021 judgement, High Court Judge Moroke Mokhesi “dismissed with costs” Adv Manyokole’s application challenging his suspension and seeking the reversal of the appointment of the tribunal as well as nullifying the appointment of Justice Moiloa as its head.
However, the judge also ruled that Adv Manyokole’s suspension while his case challenging that decision was pending was illegal. The judge also noted that the decision to recommend the tribunal without first giving Adv Manyokole a hearing “was unfair”.
However, Justice Mokhesi ruled that the DCEO boss should still face the tribunal because this did not automatically mean that he would be found unfit to remain in office.
He said the tribunal was merely set up to inquire about Adv Manyokole’s fitness to remain in office and it could still clear him after its probe.
Adv Manyokole should therefore have his day before the tribunal and either be cleared of any wrongdoing or found guilty depending on the evidence, Justice Mokhesi ruled.
However, Adv Manyokole is unhappy with the High Court judgement and he has now approached the Court of Appeal to reverse the ruling.
Dr Majoro, Justice and Law Minister Prof Nqosa Mahao, Chief Justice Sakoane Sakoane, Attorney General, the tribunal on the removal of director general of the DCEO, Justice Teboho Moiloa, Justice Semapo Peete and Justice Polo Banyane are first to eighth respondents respectively in the application.
“The applicant prays for the appeal to be upheld and the order of the court a quo (previous court) in this respect to be corrected to read as follows:
“The decision of the 1st respondent (Majoro) to appoint the tribunal on the removal of the director general of the DCEO in terms of legal notice No 139 of 2020 is hereby removed, corrected and set aside.
“The legal notice of No139 of 2020 appointing the tribunal on the removal of director general of the DCEO is declared illegal, irregular, null and void and of no force or effect in law,” Adv Manyokole states in his court papers filed this week.
He argues that the High Court erred and misdirected itself in dismissing his application when it ought to have set aside Dr Majoro’s decision to appoint the tribunal to investigate him.
He argues that his suspension and the appointment of the tribunal should have been reversed on the grounds that he was not given a hearing to defend himself beforehand.
“The appellant was not given any opportunity to make representations and to be heard on the relevant issues and was consequently treated unfairly. The court a quo had made the correct finding that the ‘decision to recommend the appointment of the tribunal without pre-decision hearing was unfair’ thus rendering the decision to establish the tribunal a nullity.
“But the court a quo erred in holding, paradoxically, that the appellant was treated fairly. 1st and 2nd respondents (Majoro and Mahao) knew that before any adverse representations are made and the tribunal is appointed, the appellant is entitled to make representations on the relevant issues, but the 1st and 2nd respondents…went ahead regardless and made the adverse representations and established a tribunal,” Adv Manyokole argues.
Adv Manyokole further argues that the legal notice which established the tribunal was vague in so far as determining the scope of its investigation of him was concerned.
“The legal notice was vague and left the grounds and circumstances of the investigations to the subjective estimate, assessment, discretion and judgement of the tribunal, to the serious prejudice of the appellant.
“The legal notice authorised the investigation of all and any matter which the 1st and 2nd respondents can imagine to place before the tribunal, even if it went beyond the prescriptive terms of the section of 4 of the Prevention of Corruption and Economic Offences Act 1999.
“The legal notice consequently violated the principles of legality, intelligibility and certainty and was void for vagueness. Therefore, it is null and void and of no consequences in law. The legal notice was inconsistent with the mandatory precepts of section 4 of the Prevention of Corruption and Economic Act 1999 as amended which require the grounds and circumstances for the investigations to form the essential and necessary part of the question to be referred to the tribunal,” Adv Manyokole argues.
Adv Manyokole had approached the High Court last December after Prof Mahao and Dr Majoro initiated moves to suspend him from office for alleged incompetence. Dr Majoro nevertheless suspended him while his application was pending in the courts.
In challenging his suspension Adv Manyokole alleged that Dr Majoro and Prof Mahao were “crusaders of corruption” who had only suspended him because he was investigating them and other high-profile people for corruption.
After the nullification of his suspension last week, Dr Majoro issued a fresh suspension letter, saying Adv Manyokole should not return to work as he was also facing criminal charges of money laundering and corruption.
The parties had gone back to court to seek a clarification of Justice Mokhesi’s disputed judgement on Adv Manyokole’s suspension. The judgment was not particularly clear on the issue of Adv Manyokole’s suspension. It had mentioned the illegality of his suspension in passing while granting the reliefs that had been sought against him.
In his 22 February 2021 judgement, Justice Mokhesi said “that order should read as follows; suspension of the application is declared null and void ab initio (from the beginning)”.
But Dr Majoro did not waste any time as he slapped Adv Manyokole with a fresh suspension letter less than two hours after Justice Mokhesi’s order.
