Molibeli blames case for fallout with PM

RELEBOHILE TSOAMOTSE

MASERU – Police Commissioner, Holomo Molibeli, says the fallout between him and Prime Minister Motsoahae Thabane is a result of the ongoing investigations into the murder of his late wife Lipolelo Thabane. Molibeli says Thabane informed him of his decision to send him on retirement a few days after he had implicated him in Lipolelo’s murder, and therefore contends that the decision is irrational.

Arguing in the High Court yesterday Holomo’s lawyer, Advocate Tekane Maqakachane told Justice Molefi Makara that attempts to fire his client started after he wrote to Thabane on December 23 implicating him in the murder of Lipolelo. Molibeli had earlier informed Thabane that investigations into the murder of Lipolelo revealed that his (Thabane) mobile number was communicating with a cellphone that was at the crime scene.

Molibeli then requested Thabane to: name the person his mobile was communicating with, his/her place of residence as well as their current contacts as well as the subject matter of their communication. On January 2, approximately 10 days after writing to Thabane requesting particulars of the person he was communicating with on the phone, Molibeli was sent on forced indefinite leave.

Thabane not only suspended and sent Molibeli on forced leave but he also replaced him with Assistant Police Commissioner Jankie Hlaahla prompting Molibeli to approach the court. He asked the court to cancel his suspension and forced leave.

High Justice Semapo Peete on January 3 interdicted Thabane from proceeding with his suspension and sending Molibeli on forced leave but on the same day, Thabane again wrote to Molibeli suspending him as well as asking him to show cause why he (prime minister) cannot advice the King to retire him from police service, a move described by Holomo’s lawyer as irrational.

Maqakachane said it was irrational for the prime minister to seek to retire Molibeli despite entering into an out of court settlement with him earlier. Thabane had previously withdrawn a letter by which he sought to send Molibeli on forced leave. Also, Maqakachane said Prime Minister Thabane’s bid to fire Molibeli was not justified and that Thabane misdirected himself when he asked Holomo resigned. The decision was irrational and illegal.

Maqakachane said while Thabane invited Holomo to make representation, he went ahead to advise the King to appoint a new police commissioner. Thabane on January 10 wrote to King Letsie III informing him that Molibeli had retired as the Commissioner of Police and thereby advised him (King) to appoint Hlaahla. In his letter, Thabane also warned the King that he would proceed and make the appointment himself in terms of Section 91 (3) of the Constitution if he failed to act on the Prime Minister’s recommendation by the noon of Friday, 10 January 2020, the same day the letter was written and sent to the royal palace.

King Letsie III did not immediately act on the advice of the Prime Minister (PM) and the prime minister did not follow through on his threat to resort to Section 91 (3), leaving room for Commissioner Molibeli to approach the court.

Section 91 (3) empowers the Thabane to proceed with any action he has recommended to the King if he fails to act on premier’s advice within a period specified by the latter. However, the premier can only do so in terms of the manner stipulated in the constitution.

Molibeli wants Thabane’s recommendation to King Letsie III to remove him from office “to be reviewed, corrected and set aside for the reason that it is irrational and illegal and therefore unlawful and of no force and effect in law.” He contends that the Constitution does not specifically deal with the removal of the police commissioner and Thabane thus enjoys no right to deploy Section 91 (3) to oust him.

“The first respondent (Dr Thabane) has no authority in law to act on the basis of section 91 (3) of the constitution in the circumstances of the present case, dealing with the retirement of the commissioner of the police, such matter being prescribed and required under section 5 of the Police Act 1998.

“in terms of section 91 (3) of the constitution, the first respondent is only entitled to act… only in circumstances where His Majesty failed to perform an act that is required by the constitution. Retiring or requiring the commissioner of police to retire is not required by the constitution but by section 5 of the Police Act of 1998.

To act on the basis of this section without this important condition precedent, the first respondent is committing serious jurisdictional error or mistake of law on his part… the first respondent clearly misconstrued his powers under section 91 (3) of the constitution,” Molibeli states.

For its part, government asked the court to dismiss the case on technicalities. Advocate Prince Cronje, who appeared with Attorney General Haae Phoofolo, argued that the nature of the case does not pass the test of urgency despite the reliefs sought being urgent and for that basis, he asked the court to dismiss it.

Cronje said the complainants have asked the court to exercise its review powers but said there was no record to review. He argued that the High Court rules does not allow for a review of the case of Molibeli’s nature.

“There is no basis for this application, it does not pass the test for urgency, there is not even a record that this court is asked to review,” he argued. Cronje maintained that the court cannot review letters and questions of irregularities.