Moorosi Tsiane
PROMINENT lawyer Neil Fraser has condemned former Commissioner of Police, Holomo Molibeli’s, relentless attempts to have the Lesotho Times shut down as a blatant effort to silence the media.
Attorney Fraser, of Webber Newdigate, made these remarks on Tuesday during his submissions before Justice Keketso Moahloli.
In this case Mr Molibeli, represented by his lawyer, Tekane Maqakachane, seeks to have the Lesotho Times shut down on the grounds that it is operating illegally in the country.
Advocate Maqakachane argued that the Lesotho Times is improperly registered under the Societies Act of 1966 instead of the Printing and Publication Act of 1967, which he contended governs the publication of newspapers. He presented a letter from the Registrar General in which his client requested the full registration details of the Lesotho Times after it published an article allegedly defaming him.
“My Lord, my client seeks a declaratory judgment, against the infringement of his rights by the Lesotho Times, which publishes information without complying with the regulatory framework set out by the Printing and Publishing Act,” submitted Adv Maqakachane.
He further claimed that in March, the newspaper published an article implicating Mr Molibeli in fraud related to Tholo Energy. After reading the article, Mr Molibeli discovered that the Lesotho Times, despite being a news publication, is not registered under the appropriate law but rather under the Societies Act of 1966. This, according to Adv Maqakachane, renders its activities unlawful.
The story – the Lesotho Times published – was entirely based on court proceedings and on an affidavit by ‘Malerato Khutlisi, one of the accused in the Tholo Energy fraud case. A newspaper cannot be legally sued for publishing what it is said by litigants in court or by MPs in parliament, no matter how defamatory the content. That information is classified as public.
Nonetheless, Mr Molibeli feels he has enough grounds to force the closure of this publication.
Adv Maqakachane therefore urged the court to declare the Lesotho Times’ operations, including the publication of articles such as the one involving Mr Molibeli, as unlawful, null, and void. He also requested that the court restrain the newspaper from publishing any material until it complies with the requirements of the Printing and Publishing Act of 1967. Furthermore, he sought an order for the removal of any online content that suggests the Lesotho Times is authorised to operate as a newspaper under the said Act.
In his defence, Mr Fraser argued that Mr Molibeli’s application was merely an attempt to intimidate and silence the media. He contended that the Lesotho Times had registered as a newspaper, as its name indicates, and that any discrepancy in its registration was due to an oversight by the Registrar General’s office, which was later rectified.
“My Lord, we have a letter dated 15 March indicating that the Lesotho Times was registered as a company. It is impossible for a company to be registered as a society. The initial mistake was an oversight by the regulator, and it was corrected in subsequent correspondence. The applicant’s persistence in this matter, despite the rectification, is misguided,” argued Mr Fraser.
He further asserted that whether the article in question was defamatory or not should be determined through proper legal channels and that the current application was an abuse of the legal process designed to suppress the media.
Mr Fraser also pointed out that the issue of the registration certificate could not be resolved because the Office of the Registrar General was not included in the application. Failure to join the Office of the Registrar was irredeemably defective as no one from that office was in court to corroborate Mr Molibeli’s version.
“This is an abuse of the legal process. There is a certificate, which was not challenged by the applicant, and without the regulator here to clarify the matter, this application should be dismissed,” Mr Fraser argued.
Mr Molibeli’s request to close down the Lesotho Times follows its publication of a story implicating him in a M40 million fraud case involving Tholo Energy.
After hearing both sides, Justice Moahloli reserved judgment to an unspecified date.
“Thank you for your submissions. Judgment is reserved and will be issued within the prescribed period (90 days).”
Justice Moahloli had earlier on 26 March 2024 ruled that the Printing and Publishing Act of 1967, which Mr Molibeli had relied on in seeking the closure of the Lesotho Times, did not prescribe the banning of a newspaper from printing, but instead stipulated a fine not exceeding M200 or six months in jail for the offender. There was thus no basis for demanding that the newspaper be closed urgently. However, Justice Moahloli was at the time adjudicating on the urgency of Mr Molibeli’s application and not the merits. The merits were only argued this week and judgement is now pending.
An independent, investigative and analytical media was the lifeblood of any democracy, Mr Fraser argued. To say an outlet that has obtained for nearly two decades and has been an integral part of the national discourse should be shut down on a whim or caprice of a registration technicality was fallacious and loutish, Mr Fraser argued.
The Lesotho Times was a fierce critic of Mr Molibeli during his tenure as police commissioner. The newspaper repeatedly called him out for his egregious incompetence which saw crime spiral out of control with little action from the police.
The newspaper also relentlessly condemned police brutality against civilians under Mr Molibeli’s watch. The police have as a result lost many lawsuits filed by brutalized civilians with none other than Chief Justice Sakoane Sakoane condemming the police for their Gestapo style tactics.
But the newspaper took major umbrage with Mr Molibeli when it championed the case of a businesswoman, ‘Mathabang Radiile, who was killed by his boyfriend, Lebohang Nkuebe. Nkuebe also burnt the businesswoman’s then four-month-old infant granddaughter, paralysing her in the process.
Despite the heinous nature of the crime, the officer handling the case, one Kubutu Kubutu, justified the State’s refusal to oppose bail, telling the Lesotho Times at the time that “we did not oppose bail because there was no basis for opposing bail”.
Almost eight years on, the Radiile family has not found justice and Nkuebe is freely roaming the streets. When an appeal was made to Mr Molibeli over the behaviour of Kubutu Kubutu and the police’s general inaction on the case, he simply cast the Radiile family aside.
Inevitably, the World Population Review ranked Lesotho among the world’s top six most murderous countries during Mr Molibeli’s tenure.
That left the Lesotho Times with no option but to conclude that police officers like Mr Molibeli and his surrogate, Kubutu Kubutu, were themselves criminals and expecting them to lead the fight against crime was akin to letting the fox guard the henhouse.
And now Mr Molibeli seems determined to have his pound of flesh by asking the courts to ban the Lesotho Times. The fact that he wants to achieve such a nefarious objective almost 20 years after the company was established does not seem to bother him and his legal team at all.
