MASERU – The controversy surrounding the appointment of Thabang Mothepu to Lesotho Correctional Services (LCS) commissioner and his fitness to hold office deepened recently when the High Court nullified his promotion to his previous rank, a springboard to his current job.

Mothepu’s promotion to the rank of assistant commissioner in 2015 - and eight other officers who were appointed with him to various ranks - was in June this year declared unlawful by Justice Masehlophe Hlajoane Lesotho Correctional Services Staff Association (LCSSA) chairperson, Lebonajoang Ramohalane yesterday told Public Eye that they are going to challenge Mothepu’s appointment to commissioner because he got the position out of an illegality.

“Our stance is that the commissioner got his current position out of an illegality and we will be challenging it on those grounds,” he said. The other officers are K.Moeno who was appointed senior assistant commissioner, M. Raphuthing appointed acting assistant commissioner, Thabang Mothepu as assistant commissioner, one Selahla appointed senior Superintendent, Ntsasa as Superintendent, Rammasa as assistant Superintendent as well as Matingoe Phamotse who was promoted to acting deputy commissioner.

Lawyers this week cast doubt over Mothepu’s chances of holding on to his powerful position in the wake of the court decision, saying his continued tenure can be successfully challenged in court on the back of the court decision. This, the lawyers said, was because he had qualified for his current position largely because he had been an assistant commissioner when the commissioner’s position became “vacant”, thrusting him in pole position to grab the coveted job.

Advocate Raboloetse Makara who in 2015 represented the LCSSA in the case challenging the disputed promotions told Public Eye in an interview that his clients had a legal right to challenge Mothepu’s appointment. Since his elevation to commissioner of LCS, Mothepu has been accused of disrespecting the office of the Ombudsman after he was summoned to explain alleged irregular promotions he had made.

He was accompanied to the Ombudsman’s office by heavily armed bodyguards because he feared being attacked by junior LCS officers who had complained of being overlooked for promotions on the basis of their political affiliation. Commissioner Mothepu also refused to answer some of the Ombudsman`s questions and was accused of being rude to Advocate Leshoele Thoahloane. Police had to be called in to disarm his bodyguards.

Mothepu yesterday said he was not aware of the judgement and would only comment after studying it. Mothepu was appointed commissioner of LCS on June 2 this year after acting in the position for almost a year despite his predecessor, ‘Matefo Makhalemele still legally holding the office. Makhalemele has since challenged her dismissal from office arguing that she is still the substantive LCS boss.

The former commissioner last month filed an application in the High Court asking for her reinstatement and that her removal be declared unlawful. She said in her court papers that she could only be removed from office on the basis of a recommendation of a legally constituted tribunal. She also said in the same papers that on November 7 last year, she received a termination letter from the Government Secretary Moahloli Mphaka purporting to terminate her employment as the commissioner of LCS.

She is however arguing the GS has no legal authority to dismiss her and has cited him in court papers. The LCSSA in 2015 petitioned the court to declare the promotions of the officers including Mothepu null and void arguing the institution`s promotion guidelines were not followed when effecting the promotions. The promotion guidelines state that there has to be a vacancy before an officer can be promoted and that the post should be advertised widely internally.

In its papers, the LCSSA argued the whole promotion process was defective as the positions had not been advertised, thus the process was “irregular, unlawful and of no legal effect”. In that regard, the LCSSA had asked the court to order that promoted officers be interdicted from performing the duties of their new offices pending finalisation of the case.

It also wanted the auditor general who was also cited in the matter to be ordered to refrain from making new or further adjustments to the salaries of the promoted officers. But in the 2015 case against the LCSSA, Makhalemele, who was then acting LCS commissioner in her answering affidavit challenged the association’s capacity to sue arguing that instituting the proceedings of the case was not within the associations mandate or main objective.

The organisation did not not have a legally enforceable right to challenge staff promotions but the court ruled that the LCSSA has locus standi (legal right) to challenge the promotions. This stems from the fact that it is a legally registered entity that safeguards the interests of its members. LCSSA members look up to it for protection of their interests. Makhalemele then argued that promotion guidelines which the LCSSA had relied on were of no force of law and legislative effect as they were never published in any Gazette as required by the law.

The court nonetheless dismissed this argument ruling the promotions guidelines provided a sound basis on which to mount a case as long as the provisions are not in contravention of applicable legislation. “The existence of such guidelines has not been denied and the fact that the guidelines has not been denied and that the fact that the guidelines had never before been put into effect is not reason enough to say they have no force of law as they must have been designed for a purpose,” read part of the judgement.

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