…as Metsing defends Attorney General
South African judges, George Maluleke, Sulet Potterill and John ‘Musi, will preside over a case in which Attorney General Tsokolo Makhethe is challenging last month’s appointment of Kananelo Mosito as the new Court of Appeal president.
Advocate Makhethe is opposing the appointment in the Constitutional Court, arguing Prime Minister Thomas Thabane did not have the powers to advise King Letsie III to make such a nomination.
Justice Tšeliso Monaphathi is today expected to set a roadmap for the defendants—King Letsie III, Dr Thabane, Law, Constitutional Affairs and Human Rights Minister Haae Phoofolo, Justice and Correctional Services Minister Motlohi Maliehe and Justice Mosito who are cited as First to Fifth respondent respectively— to file their answering affidavits.
Former Court of Appeal judge, Justice Jeremy Gauntlett, is representing the respondents in the lawsuit.
In his court papers, Advocate Makhethe says he has the legal standing to make such a court challenge should he believe the integrity of the administration of justice and judicial officers is being compromised.
“In my capacity as the Attorney General (AG), I have a legal duty to protect their integrity and ensure that I assist judicial officers in the discharge of their obligations.
“I declare that this legal duty obliges me to take such measures in circumstances where the government itself violates provisions of the Constitution and other laws.”
Advocate Makhethe further outlines the nature of his case. “This is an application in terms of which the powers of the Second Respondent to make recommendations without reference to Cabinet are questioned.
“The Constitutional Court has jurisdiction to hear the case because the matter raises important and serious issues, namely whether the decision of the King is constitutionally wanting in that the process for the appointment and consequently the appointment itself is invalid.
“At the heart of this application is that the Second Respondent (Dr Thabane) failed to apply his mind to relevant facts with the result that his recommendation to His Majesty for the appointment of the Fifth Respondent (Justice Mosito) as the President of the Court of Appeal was made arbitrarily or mala fide.
“It is the case of the applicant that the Second Respondent misconceived the nature of his powers in relation to a recommendation to be made to His Majesty conferred upon him in terms of section 124 of the Constitution, and also relied on irrelevant considerations and ignored relevant ones.”
Meanwhile, Deputy Prime Minister Mothetjoa Metsing yesterday said he was opposed to the appointment simply because it violated agreements signed by various political party leaders ahead of the 28 February 2015 general elections.
Since the AG challenged the appointment, and was supported by Mr Metsing through an affidavit, Advocate Makhethe has been subjected to severe criticism on social media for being “used” by politicians.
However, Mr Metsing yesterday told a press conference in Maseru that the lawsuit only sought to challenge Dr Thabane and not King Letsie III.
“You would realise that the case is against the prime minister who has been contravening the constitution of Lesotho and all other agreements he has entered into during the entire duration of the coalition government we formed with him in June 2012.
“The King is said to have made an appointment. However, you will realise our King is unlike the King of Swaziland who has executive powers. The executive powers are vested in the prime minister who only seeks the King’s ceremonial endorsement of his decisions,” said Mr Metsing.
The Lesotho Congress for Democracy (LCD) leader further said even if the King was to decline the prime minister’s advice, the constitution empowers him to go ahead with his decision.
Mr Metsing said the AG only included the King in the lawsuit as a legal requirement.
He also said the case was not challenging Justice Mosito KC as a person but the prime minister’s action.
“It is not insulting to have the Office of the King in a civil claim before the courts. We know of a case by Charles Dube Molapo, who is uncle to the Minister of Home Affairs, Joang Molapo and brother to his father Mooki Molapo, who took King Moshoeshoe II to court.
“In that case, the King was cited as the first respondent and mentioned by name in a lawsuit where Ntate Molapo was challenging his dismissal from the Senate.
“What is interesting is that the court set aside the decision by the King and the complainant was reinstated into the Senate. And in another matter, the King was sued by Ntate Mokotso and the case was heard by the court,” said the Metsing.
However, in an apparent counter to Mr Metsing’s press conference, the Prime Minister’s spokesperson, Thabo Thakalekoala issued a statement in which he said Dr Thabane was determined to defend the King.
“The Prime Minister appeals to Basotho to remain calm as the lawsuit would be dealt with through all the necessary channels,” Mr Thakalekoala said.
“All the people of Lesotho are reminded that the King is a unifying figure of the Basotho nation, and the prime minister is going to do everything within the law, to defend his name.”