LDF loses 14-year bid to eject soldier

As army loses Apex Court case to dismiss PVT Senekane

RELEBOHILE TSOAMOTSE

MAFETENG – The Lesotho Defence Force (LDF) has lost its tedious 14-year-long bid to kick Private (PVT) Mokitimi Senakane out of the force. The Court of Appeal last Friday November 12 dismissed the army’s appeal against a High Court judgment that overthrew Senekane’s dismissal from the force. Senekane was fired from the military in December 2007, accused of insubordination and making derogatory statements about the LDF and its officers in an interview he had with Public Eye on November 23, 2007.

In the interview, Senekane spoke to news reporter Nthakeng Pheello Selinyane about the death of his brother – Monyatsi Senekane on February 16, 1997, during a military operation to quell a police strike. His quest for justice for his brother cost Senekane his job but he successfully challenged the dismissal after a long-drawn-out legal battle with the army. High Court judge, Justice Moroke Mokhesi, on October 15, 2020 declared Senekane’s dismissal invalid for the commander’s failure to comply with the law as well as other ulterior moves used to get rid of the soldier.

“Even though the commander is endowed with the discretion to discharge, the manner in which that was exercised, sullied or colored the entire decision. The invocation of discretion to discharge under Section 31 (c) was coloured by ulterior motives and was used for dishonest purposes,” read Mokhesi’s judgment in part. The judge ruled that Senekane’s discharge was invalid and of no force and effect. The net effect of the ruling was to reinstate Senekane to his position, but the LDF argued that the court did not order reinstatement and denied Senekane entry back into the army barracks.

In an interview with Public Eye after this particular High Court judgment, the army said they did not consider Senekane as part of the institution and that they were waiting for the Court of Appeal to settle the matter. This was after Senekane reported to work but was denied entry to the army base headquarters in Maseru, with authorities saying he would be contacted at a later stage.

When Public Eye sought an explanation from the LDF in June this year, the institution’s Public Relations Officer, Captain Sakeng Lekola said “in our view, Ntate Senekane is not a member of the LDF and there was no way he could be allowed back.”

Lekola had also argued that the High Court had not ordered 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…”

At the time, the army had already noted an appeal against Justice Mokhesi’s judgment but failed to prepare a record on time for the case to be determined in the May session of the court. Lekola maintained then that the disagreement between Senekane and the LDF would be solved by the Apex Court when it finally determines the case (October session).

They argued that Justice Mokhesi erred and misdirected himself 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 argued that the judge misdirected himself in holding that the commander when exercising his power to discharge in terms of Section 3 of the LDF Act of 1996 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.” The Appeal Court has dismissed all of the LDF’s contentions in its Thursday judgment authored by President of the Court, Dr Kananelo Mosito, and agreed to by Justices Petrus Damaseb and Van der Westhuizen.

On the argument that the commander’s power to invoke Section 31 of the LDF Act to discharge a soldier is not only applicable after the conviction has been made by military courts or summary trial, the Court of Appeal dismissed the point saying that “there is no substance in this complaint.” The three judges agree with the High Court and state that Section 31 (1) (c) of the LDF Act “expressly provides that the power can be exercised where, the soldier has been convicted of a civil or military offence, this means that the conviction must precede the discharge.”

The court also disagreed with the LDF’s stance that the commander need not to invoke Defence Force (Regulations) of 1998 when exercising his power of discharge in terms of Section 321 of the Lesotho Defence Force Act. In the judgment Justice Mosito continued that “there is no merit in this ground as well because Regulation 2 of the Defence Force (Regular Force) (Discharge) Regulations clearly provides that, having been convicted by a civil court during his service for offences committed before enlistment, a soldier may be discharged from the LDF.”

The judgment also concluded that Justice Mokhesi was correct in concluding that Senekane’s expulsion was of no force and effect in that the lawgiver sought to reign. With the LDF now expected to pay Senekane’s salary from the date of his expulsion from the army, the institution has also been ordered to pay him his cost for the application. Speaking to Public Eye in a brief interview yesterday LDF spokesperson, Captain Lekola, said the army has taken note of the court decision and command was still interrogating it for further appropriate action by the LDF legal division.