Army succumbs to legal pressure

Presents offer of settlement to dismissed soldier

TEBOHO KHATEBE MOLEFI

MASERU – The Lesotho Defence Force (LDF) appears to have finally given in to mounting judicial and public pressure to settle its issues with dismissed soldier, Private (PVT) Mokitimi Senekane, Public Eye can reveal.

The army has been unmoved in its defiance of a court instruction to reinstate Senekane, who was unlawfully booted out of the LDF 15 years ago.PVT Senekane was fired sometime in 2007 accused of abomination and making derogatory statements about LDF and its officers in an interview he had with Public Eye on November 23, 2007.Following his victory for reinstatement in the High Court of Lesotho, the Court of Appeal in September dismissed an LDF appeal against the earlier high court judgement that invalidated Senekane’s dismissal from the force.

The army was served with the latest instruction on September 1, ordering commander, Lieutenant General (Lt Gen) Mojalefa Mojalefa to recall Senekane back to duty – but the LDF has remained uncooperative.The soldier sought further legal intervention, with Respondents in the latest being Lt Gen Letsoela and the Attorney General Advocate Rapelang Motsieloa.The LDF filed their intention to oppose the matters.

But appearing reluctant to appear in court, with the Commander now facing a possible charge of contempt of court, Public Eye has established that the LDF has handed Senekane an offer of settlement.In this turn of events, the army has now undertaken to pay the aggregate of PVT Senekane’s arrear salaries and all benefits dating from January 2008 to the date of his retirement coming in January 2023; and that they will compute the arrear salaries to be paid beginning of the forthcoming financial year of 2023-2024 as the budget for the current fiscal year is exhausted.

In the main application, Senekane lodged the case seeking for General Letsoela to take all necessary steps to ensure he has access to his workplace to perform his daily duties in furtherance of the court’s decision in the main trial the high court – later confirmed by the Court of Appeal of Lesotho that also held that the soldier’s discharge was of no force and effect.He further sought for the Commander to be ordered to pay the aggregate of his arrear salaries and all benefits dating from January 2008 to date with interest, and to also be ordered to regularise his promotion by promoting him to the rank of Brigadier or to the rank similar to all LDF members of the recruitment course of 1988 with effect from February 1, 2020.

Senekane successfully challenged his dismissal and after a long-drawn-out legal battle with the army, which saw High Court judge, Justice Moroke Mokhesi on October 15, 2020, declare his dismissal invalid for the commander’s failure to comply with the law- as well as highlighting ulterior moves used to get rid of Senekane.“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 colored by ulterior motives and was used for dishonest purposes,” reads Justice Mokhesi’s judgement in part.

The judge ruled that Senekane’s discharge was invalid and of no force and effect. The net effect of which was reinstating Senekane to his position but LDF argued that the court did not order reinstatement and denied him entry back into the barracks.The Appeal Court has dismissed all of the LDF’s contentions in its judgement authored by President of the Court, Justice 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 Appeal Court dismissed the point saying “there is no substance in this complaint.”The three judges agreed with the high court and stated 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 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.Judge Mosito in the judgement said “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 judgement also concluded that Judge 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.Following the earlier High Court of Lesotho judgement Public Eye spoke to the army, which indicated that they do not consider Senekane as part of them, and that they will await the Court of Appeal Court ruling to settle matter.

This was after Senekane reported to work but was denied entry into the military compound with authorities saying he would be called.In the Public Eye interview that landed Senekane in soup, he spoke about the death of his brother, police Sergeant Monyatsi Senekane, who died on February 16, 1997, during a military operation then mounted then to quell a police strike.It is his quest for justice for his brother, it is this particular interview that cost Senekane his job.