Appeal Court faults ‘overzealous’ PAC

 RELEBOHILE TSOAMOTSE

MASERU – The Public Accounts Committee (PAC) overstepped its mandate when it looked into individual complaints about estates handled by the Master of the High Court, the Appeal Court of Lesotho has ruled.

This the Appeal Court said in a judgment where the Committee had appealed a judgment in which the High Court had similarly found the PAC to have acted outside its mandate and powers when it interrogated specific financial affairs of the Office of the Master of High Court in 2018. Three employees of the Office of the Master of the High Court, ’Matahleho Matiea, Hlahlobo Morori and Moroesi Tau-Thabane (executor) had in 2018 complained about the conduct of the PAC when they were summoned for questioning before the Committee.

They were questioned in relation to a complaint received from one Mpho Mapetla who protested the manner in which the Master of the High Court handled her late father’s estate. In the petition before the High Court Matiea challenged, in an affidavit, the manner in which the parliamentary committee conducted itself in questioning her, where she says she was “criticised extensively that she serves members of the public badly while also being unfairly criticised without being allowed to give her side of the story.” Matiea said there were also threats of intimidation that suggested she could be handcuffed and arrested right on the spot.

She said her appearance before the PAC was “utter violation” of the administration of the estates proclamation and “this was notwithstanding the fact that some of the cases complained of were still pending before the courts of law.” “I wish to take the court into my confidence and assert that the PAC was the judge, the complainants’ representative and the prosecutor at the same time for all the cases,” she said. Matiea and company complained that they were questioned in a degrading manner by the PAC members and that “in terms of the law, interrogation of financials and accounts of private citizens under custodianship of the institution of the Master of the High Court falls outside the powers of the PAC.”

High Court judge, Justice Tšeliso Monapathi, agreed with them in his judgment delivered in March 2019 prompting the PAC to appeal the decision. In his judgment, Justice Monapathi said PAC’s constitutional mandate was limited to investigating public funds and that monies belonging to specific agents were private monies that the Committee should not investigate. However, the judge did not fault the PAC in its manner and line of questioning.

The parliamentary committee then appealed justice Monapathi’s judgment on at least the following grounds, that: the High Court erred and misdirected itself in holding that the PAC had acted ultra vires its constitutional power by investigating the financial affairs of the deceased estates governed by the Master of the High Court; that the High Court also erred and misdirected itself by holding that complainants in the High Court had locus standi (legal right) to seek an interdict and a declaratory on behalf of the Office of the Master of the High Court.

Also, the PAC had argued that the High Court did not have jurisdiction to hear the case, saying “the court a quo erred and misdirected itself by holding that it had jurisdiction to intervene in the unfinished proceedings of parliament.” On top of that, the Committee maintained the High Court had no power to intervene in unfinished parliament proceedings and that the deceased estates are public funds as defined in the Public Financial Management and Accountability Act of 2011 arguing that they are empowered to consider financial affairs of all government organs, ministries and departments, as well as oversight over them.

To support their argument, they cited the National Assembly Standing Order 97 (5) which states “the Committee shall consider the financial statements and accounts of all government ministries and departments, executive organs of state, courts, authorities and commissions established by the Constitution and of each of the two Houses of Parliament; consider any audit reports issued on the financial statement, accounts or reports referred to the committee by the House…” A bench of five appeal court judges last Friday dismissed PAC’s submissions saying while it is empowered to oversee finances of government ministries and departments as well as executive organs of state, investigation of the handling of a particular estate for which executors have been appointed was something else.

The court said PAC should be able to distinguish between concerns about irregular spending, mismanagement or corruption in the office and probing into handling of a private estate based on an individual complaint. “Naturally, in view of the oversight function of the PAC, it should be able to investigate concerns about irregular spending, mismanagement or corruption in the office of the Master of High Court or elsewhere in the state machinery…”

The court further stated “this, however, differs from using a hearing by the PAC to probe into handling of a private estate based on an individual complaint. The High Court has a role to play…” The judgment further states that the fact that the Auditor General may audit and that the PAC may investigates the financial affairs of the High Court (example) does not mean that they may probe into specific dispute between parties before it.

President of the Appeal Court, Dr Kananelo Mosito, handed the judgment that dismissed the appeal with costs. He determined the case with acting judges of the Appeal Court Petrus Damaseb, Phillip Musonda, Moses Chinhengo and Van Der Westhuizen. The judges warned about employees of the Office of the Master of High Court who they said were often engaged in corruption and malpractices in many countries.

“It must also be added that the Master’s office and its officials should not be allowed to avoid having to respond to queries. Corruption and similar malpractices in this office in various countries have caused considerable financial loss and chaos,” reads the judgment in part. The judges also found that employees of the Master of the High Court had the locus standi (legal right to sue) to have approached the High Court seeking the relief they sought against the PAC submission that they had no locus standi when they sued in their personal capacity.