Deputy Prime Minister Mothetjoa Metsing wants Chief Justice Nthomeng Majara and Justice Tšeliso Monaphathi to recuse themselves from a case in which he is challenging the release of his banking details to the Directorate on Corruption and Economic Offences (DCEO) by two local financial institutions.
Mr Metsing lodged an urgent application before the Constitutional Court on 11 August 2014, seeking the court to declare the acquisition of the banking details as part of the DCEO’s corruption investigations against him, unconstitutional.
However, in a new twist to the case, Mr Metsing’s lawyer, King’s Counsel (KC) Motiea Teele on Tuesday this week informed the two judges in Justice Majara’s chambers he would file an application for their recusal from a panel of three judges set to hear the case on 17 November this year.
The third judge on the panel is Justice John ‘Musi—a South African who also presides over cases in the Lesotho High Court. According to High Court sources close to the matter, who spoke to the Lesotho Times on condition of anonymity, Mr Metsing only wants foreign judges to preside over his case.
According to the sources, the judges allegedly directed Advocate Teele to file a formal application requesting the recusal before tomorrow.
It is expected the application would include reasons why the deputy premier wants the two senior judges off the hearing.
Advocate Teele yesterday confirmed the new developments to the case.
“We are now preparing papers to lodge a formal application for the recusal of the two judges. We will file the application in court by this Friday and the reasons for asking for their recusal will be fully articulated in the application,” Advocate Teele told the Lesotho Times.
Meanwhile, in his application, Mr Metsing not only accuses the DCEO of violating his rights when obtaining the details in question, but also believes the two financial institutions should have refused to disclose the information.
The deputy premier cites the DCEO Director General, DCEO, Minister of Justice, Human Rights, Rehabilitation, Law and Constitutional Affairs, Attorney General, Standard Lesotho Bank and Nedbank Lesotho as first to sixth respondents, respectively in the application.
In the court papers, Mr Metsing gave all the six respondents 10 days (until 21 August) to have lodged their notices if they intended to oppose the case.
However, by the set deadline, only the DCEO and Nedbank had filed the notices, while the remaining four respondents filed their papers last month .
According to their notices, all the six respondents are maintaining the acquisition of the financial transactions was in compliance with the law.
According to his affidavit, Mr Metsing insists the DCEO violated his “right to private and family life” as guaranteed by Section 11 of the country’s constitution, in obtaining the information.
The DPM also wants the DCEO to “surrender or destroy” all the information obtained from the two banks as part of the investigations, and the anti-graft body to be “restrained and interdicted” from “any further violations” of his rights.
Mr Metsing—who is also the leader of the Lesotho Congress for Democracy (LCD), which formed a coalition government with the All Basotho Convention (ABC) and Basotho National Party (BNP) in June 2012—notes in the affidavit: “On 10 July 2014, the DCEO, purporting to act in terms of Section 9 (1) (c) of the Prevention of Corruption and Economic Offence Amendment Act (PCEOA), wrote me a letter requesting information relating to the deposit of monies in the two bank accounts between April 2013 and January 2014.
“It will immediately emerge ex facie, that the (DCEO) was already in possession of information about not just my bank accounts, but also had intimate knowledge of the cash deposits and dates of such deposits.
“I declare that I never gave the DCEO this information nor did I authorise anyone to disclose this information. This was given in stark violation of my rights to privacy guaranteed by the constitution.”
The LCD leader says his lawyers had since asked the DCEO to justify their request and under what authority his banking details were obtained, but without success.
The DCEO, he adds in the court papers, declined to answer “directly or at all” to the specific questions raised by his lawyers in their written communication of 22 July 2014.
“On 30 July 2014, the DCEO simply reiterates a fact that is already contained in the first letter (demanding information on the sources of the funds deposited in the accounts).
“Though the DCEO describes the demand as a request, it is nothing of the sort. It is a demand and failure on my part to supply the demanded information, or if it is considered that I supplied false information, that is a criminal offence in terms of Section 7 (2) (b) of the Act as amended, of which I would be charged.”
However, Mr Metsing says his lawyers advised him the DCEO’s request was illegal, hence he would not be complying with it.
“I am legally advised and believe the same to be true that Section 7(1) (c) read with 7(2) (b) is unconstitutional.
“I do not intend complying with the unconstitutional and unlawful demand (of the DCEO) based on that law.
“It follows, therefore, that unless this court entertains this application and strikes the said law as unconstitutional, I stand the risk of criminal prosecution and sentencing.
“It is important to also disclose that as recently as 1August 2014, I was summoned to appear before the Maseru Magistrate’s Court on ill-prepared charges which were withdrawn on the same day, and I have no doubt that those were connected to what I am being subjected to by the first (DCEO Director General) and second (DCEO) respondents, herein,” he states in the affidavit.
Mr Metsing also takes issue with the two banks for complying with the DCEO’s request without consulting him first.
“In obtaining and receiving information regarding my bank accounts from the fifth and sixth respondents (Standard Lesotho Bank and Nedbank Lesotho, respectively) without informing me, they collectively violated my rights to privacy guaranteed by Section 11 of the Constitution. My personal banking details are matters of my private life, which should not be disclosed without my authority by the fifth and sixth respondents.
“I wish to disclose to this honourable court that I sought information from the managers of the fifth and sixth respondents regarding the basis and instruments used by the DCEO to obtain the details. The managers of both banks declined to give me the information, save to say they supplied the data under Section 8 of the PCEO Act, and hence claimed statutory compulsion.
“But on legal advice, I have been informed that the banks made themselves willing parties to the violation of my privacy, which they are supposed to protect. I am legally advised that in terms of Section 8 (2), a party from whom information is required under Section 8 (1) may refuse to supply the same without exposing himself to criminal liability, if he has reasonable excuse.
“The fifth and sixth respondents knew, or ought to have known, that the notice requiring my private banking information is a matter that violates my right to private and family life guaranteed under the constitution, and that they could decline giving out the information.
“I declare that at the very least, they ought to have contacted me to explain to them why they should not give away my private information. I verily aver that this must be because by using their banking facilities, I did not thereby surrender my rights of privacy to be exercised by me only subject to their approval.
“I also declare that in the circumstances where my private banking information has been obtained and given away in violation of my constitutional right, this honourable court will provide the relief sought.”