THE Constitutional Court (ConCourt) is today expected to hear a case in which the Director of Public Prosecutions (DPP) Leaba Thetsane is pushing for the imprisonment of Acting Government Secretary Moahloli Mphaka.
Advocate Thetsane (King’s Counsel) wants Mr Mphaka jailed for contempt of court for instructing the police to eject him from his office on 25 August 2014.
The DPP argues his removal was against a ConCourt judgment, which said Mr Mphaka and Prime Minister Thomas Thabane had no powers to remove him from his post.
The ConCourt ruling, which was delivered on 8 August 2014, indicated only the Public Service Commission (PSC) was empowered to advise the DPP of his retirement age.
Advocate Thetsane had approached the court in reaction to a letter written on 16 June 2014 by Mr Mphaka, ordering that he vacates office with immediate effect because he was past the retirement age of 55. The DPP turned 56 last month.
However, the Constitutional Court on 8 August 2014 rejected Advocate Thetsane’s claim that he should retire at the age of 60 years as provided by the Public Service Act of 2005.
The DPP had acknowledged his retirement age, as stipulated by the constitution, was 55 years, but argued there was a specific section in the Act which allows public officers who wish to retire at the age of 60 years, to make such a choice.
Advocate Thetsane further argued he had made such a choice and provided documentary proof of the decision, which should have seen him retire in 2018.
He has since appealed the Constitutional Court’s decision regarding his retirement age, and the case is still pending before the Court of Appeal.
However, in a twist of events, three police officers bearing a letter from Mr Mphaka, arrived at Advocate Thetsane’s office on 25 August 2014, and asked that he vacates the premises.
The letter instructed Advocate Thetsane to vacate office, and await the outcome of his appeal while at home.
This, he says, is an act of contempt because the Constitutional Court had already ruled that Mr Mphaka had no powers to retire him.
In papers filed on Thursday last week, Advocate Thetsane wants the court to commit Mr Mphaka “to prison for contempt of court and for such period and on such terms as this honourable court may determine.”
In his affidavit, Advocate Thetsane narrates how he was forced out of his office.
“On the 25th of August 2014, and at 16:15pm, I was in my office, namely office No 023C, Government Complex in Maseru, where I work as the Director of Public Prosecutions, as usual.
“At this time, there arrived three policemen and a messenger of the first respondent (Mr Mphaka).
“On arrival, the messenger handed a letter to my secretary who, in turn gave it to me.
“I read through the letter. My secretary informed me that the messengers were waiting for my response and that in addition, there were four gentlemen who wished to see me in connection with the letter.
“It is at this point that I saw three policemen, namely Makharilele, Chechile and Molelekoa and another who was a complete stranger to me and who refused to give his name. They all walked into my office.”
He further said one of the officers, Makharilele, informed him that they had been instructed by Mr Mphaka “to ensure that I vacated the office and also make sure that they locked it and handed over the keys to him.”
Advocate Thetsane said he refused to comply until the officers called Mr Mphaka.
“The first respondent (Mphaka) then arrived and confirmed that he had sent the police to ensure that I vacate the office in accordance with the tenor of his letter.
“I asked the first respondent whether he was removing me from office in spite of the judgment. He told me that he was doing so and that he was not concerned about the other prayers which were granted by this court, namely, prayers 2(a) to (e) inclusive, but was only with concerned with prayer 2(f) which had been dismissed.
“I told him that he was violating the court order,” he stated.
Advocate Thetsane says after Mr Mphaka left, the police officers told him to go home as they did not want to force him out of the office.
The police officers, he said, then took the keys to his office from his secretary and locked the office.
He further stated: “The office still remains locked to-date and is not accessible to me or my secretary.”
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