LDF bars Senekane, again
As army denies the reinstated soldier entry into barracks
RELEBOHILE TSOAMOTSE
MASERU – The Lesotho Defence Force (LDF) on Monday refused to allow Private Mokitimi Senekane to return to active duty after the court declared his expulsion from the army unlawful.
Senekane was denied entry into the Ratjomose Barracks by soldiers stationed at the military facility’s main gate who said they have been instructed not to allow him in.
In reporting for duty, Senekane was accompanied by a messenger from his legal representatives – Nthontho Attorneys – but only the messenger was allowed inside to deliver a letter.
In the letter, Nthontho Attorneys informed the LDF Command about their client’s date of return to work after their failed attempts to get the army to facilitate his return.
“Reference is made to our letter dated the 5th November, 2020. In terms of the aforesaid letter, the court held that the applicant’s dismissal was a nullity from ab initio. As an upshot, in law he is deemed to have been in the work place for all intents and purposes at all material times. Hence he is entitled to all his arrear salaries commencing from the date of his purported dismissal with interest,” reads the letter in part.
The letter further states that “since, albeit legally speaking, plaintiff is deemed to have been in the work place calculating from the purported date of his dismissal, factually he was out of work and it was incumbent upon your good office to direct him and facilitate his smooth returning to work as the judgement clearly imposed a positive duty upon you as the employer to heed the declaratory and allow the plaintiff to discharge his duties upon reporting back to work.
“Now since your office did not arrange and communicate with client as to the mode of reporting back to work you are hereby notified humbly that the plaintiff will report to work on the 11th June 2021 with the expectation founded on the judgement that he will be welcomed to work and assigned duties accordingly.”
The letter was received and the LDF promised to respond accordingly but had not responded at the time of going to print. High Court judge, Justice Moroke Mokhesi, invalidated Senekane’s dismissal on October 15, 2020.
He had been fired from the defence force in December 2007, accused of abomination and making derogatory statements about the LDF and its officers in an interview he had with Public Eye on November 23, 2007.
Judge Mokhesi invalided the dismissal for failing to comply with the law and the ulterior moves he said were used to get rid of Senekane. However, the LDF insists that Private Senekane is not a member of the defence force.
“In our view, Ntate Senekane is not a member of the LDF and there was no way he could be allowed back into army,” LDF Public Relations Officer, Captain (Capt) Sakeng Lekola said in an interview with Public Eye on Monday this week. In any case, he said, the court did not order his reinstatement.
In his judgment, Justice Mokhesi said “an order of reinstatement is not competent where the dismissal is invalid and of no force and effect. To speak of an order of reinstatement in that case is a contradiction in terms. An invalid dismissal is a nullity. In the eyes of the law an employee whose dismissal is invalid has never been dismissed.
“If, in the eyes of the law, that employee has never been dismissed, that means the employee remains in his or her position in the employ of the employer…”
Capt Lekola also explained that there is a pending appeal wherein the LDF is appealing the High Court judgment nullifying Senekane’s discharge. He maintained that the issue between the parties will be solved by the Apex Court.
Public Eye has, however, established that the LDF noted the appeal on November 17, 2020, but failed to prosecute the appeal in the April 2021 session of the court.
The defence force did not prepare the record for the appeal to be heard but blamed the Appeal Court for failure to dispose the matter.
This is what Capt Lekola said when asked about the LDF’s failure to prosecute/peruse their appeal: “The court said there are technical challenges with our appeal, the problem was on their side not ours, we are now waiting for the next session of the court.”
Appeal Court Assistant Registrar, Advocate Realeboha Makamane dismissed the LDF’s claims when contacted for comment on Monday.
He denied that there was any technicality on the part of the court as the case was enrolled for hearing. Instead, he said LDF had not prepared the record when the court was finalising April’s roll.
“It is untrue that there were any technicalities on our side. LDF had two appeals with us in this session; I even inquired with their lawyer when I noticed a record had not been availed in this particular matter in vain,” Makamane said.
He added: “It is the responsibility of the Appellant to prepare the record, and it’s the LDF in this case.”
The army appealed the High Court judgment on four grounds. They argue that the High Court erred and misdirected itself in holding that the power of the commander to invoke Section 31 of the LDF Act of 1996 in order to discharge is applicable after conviction is made by military courts.
The LDF also argues that the judge misdirected himself in holding that when exercising his power to discharge in terms of Section 3 of the LDF Act of 1996 the commander is bound to invoke Defence Force (Regulations) of 1998.
Further they said “the learned judge erred and misdirected himself in failing to appreciate that the conviction and sentence of plaintiff in 2004 serves as previous convictions which are aggravating in nature in the consideration of discharge of plaintiff based on the ill-discipline reflected in the newspaper interview of 2007.”
Senekane was booted from the military in December 2007, prompting him to challenge the dismissal in court.
He was accused of abomination and making derogatory statements about LDF and its officers in an interview he had with Public Eye at the time, and then commander Lieutenant General Thuso Motanyane, fired him.
His case dragged for a staggering 12 years in court and was only heard in 2020. The delay in determining his complaint saw Senekane spend 14 years out of the service, including the six months’ period after the High Court ruled in his favour.
Pivate Senekane fell out of favour with the military following incidents in 1997 in which his brother, police Sergeant Monyatsi Senekane – one of nine police officers wanted in connection with shootings at the Maseru Central Police Station, and another police officer were killed in circumstances suggesting they may have been extrajudicially executed.
Sergeant Senekane was shot dead on the night of February 15, 1997, by elements of the LDF who reportedly ambushed his vehicle around Ha Thamae, Maseru.
Earlier, on January 31 police Trooper Nthako who was reportedly a sympathizer of the nine, had been shot dead at his home by unknown assailants.
In June of the same year Private Senekane and one police Sergeant Thabo Tšukulu were charged with treason, in connection with an alleged petition calling upon the King to resolve the then existing conflict between the police and the army and secure the release of arrested police mutineers.
In the weeks preceding his initial arrest Private Senekane had been pressing the police authorities for information concerning the death of his brother.
In December 1997 Attorney Haae Phoofolo, the lawyer representing the two accused in that case, was also arrested and charged with conspiring with his clients to commit treason.
He was later released on bail. There was concern, however, that the charges against Phoofolo were politically motivated, aimed at hampering the defence of Private Senekane, Sergeant Tšukulu and other police officers whom he was representing.
