No confidence motion case: AG costs taxpayers

RELEBOHILE TSOAMOTSE

MASERU – Taxpayers will pay a portion of opposition parties’ legal costs in opposing a court application meant to block a motion of no confidence against Prime Minister Samuel Matekane. This as the government, through the office of the Attorney General (AG), has been slapped with costs on an attorney and client scale for its failure to comply with the timeliness set for filing court papers in the Revolution for Prosperity (RFP) sanctioned application to block a motion of no confidence against the Prime Minister.

High Court Judge Justice Tšeliso Monapathi yesterday ordered the Attorney General to pay opposition parties attorneys and clients for the time wasted as the case stalled due to the office’s failure to file on time. This means AG will, with taxpayers’ money, pay for all costs incurred by the opposition, including consulting attorneys and the cost of their appearance in court yesterday.

The office failed to meet the Monday, 13th, deadline set for all parties to file their papers so that the case could proceed yesterday. It was revealed during the short court proceedings yesterday that Advocate Thomas Thakalekoala only filed Attorney General’s papers on Wednesday, and opposition parties took issue with it.

Adv. Monaheng Rasekoai told the court that he has a serious problem with the fact that the Attorney General failed to comply with the court’s order as far as filing is concerned. Rasekoai said when the office finally filed, it was a 50-page document with no less than 30 authorities (cited cases) that needed time to study and respond accordingly.

He explained that because the respondent came a few hours before the matter was due to be argued, he was unable to respond accordingly. “I am ill equipped to do justice to this matter as a result of the late filing of papers by the Attorney General. Effectively, I pray that I be allowed to do justice to this matter and that we be given the next date of hearing.” Rasekoai then asked that the Attorney General be charged with costs.

Adv. Christopher Lephuthing, also on behalf of the opposition, explained that while they wanted to proceed with the matter, the postponement was forced on them by the AG’s office for its failure to file on time. Lephuthing also requested that they be awarded the cost of the day wasted. For his part, King’s Counsel Motiea Teele asked the court to find a way to consider the Attorney General’s submissions. He explained that he also received AGs submissions on Wednesday, just a day before the hearing, but found them to be “very learned submissions that must not be taken lightly. I hope their lordships will find a way to consider them.”

In responding to concerns that the office he represents did not comply with the timelines set to file papers, Thakalekoala said the office initially took the position that it would not file a substantial answer but also state the position of the law, but on a second reflection, he noticed that any party that is given an audience by the court is obliged to make a written submission, hence the delay in filing.

The response prompted one of the presiding judges, Justice Keketso Moahloli, to ask: “Counsel, you undertook to file on Monday just like anyone else, but we only received your response yesterday. Why? Advocate Lephuthing even made it clear that since you do not have an affidavit, they will want to see your heads first before filing theirs.”

Justice Moahloli further pressed Thakalekoala to respond on why there was no formal application for pardon for failure to file on time.  “Tell us your reason for your misconduct that has put everyone here.” Thakalekoala said he has applied for condonation and pleaded with the court to allow it to consider their papers so that they can be assisted.

After a short adjournment, Justice Monaphathi ruled that the situation was indefensible, prejudicial, and inconveniencing, especially “due to the fact there was an agreement earlier on how to go about this matter. The last time we adjourned, there were already challenges in proceeding with this matter; the Crown will have to pay costs on an attorney and client scale.”

The case was then postponed to today for a hearing. In the main application, Thaba Moea RFP legislator, Lejone Puseletso Lejone has asked the court to defer the motion against Prime Minister Matekane until the conclusion of the reforms process, in which Parliament shall promulgate provisions to regulate the passing of votes of no confidence.

He also wants the court to nullify the 9th amendment to the Constitution, which basically removed the option that a sitting Prime Minister had to call for elections when a motion of no confidence was successfully passed against him. Puseletso says the amendment violates the basic structure of the Constitution.

He says that since section 87(5)(a) of the Constitution was amended and removed the power of the Prime Minister under the old section to opt for dissolution of Parliament in the event of a vote of no confidence being passed, the process has done away with not only the Prime Minister’s rights to advise the King to dissolve the Parliament but also the right of participation of the public to determine their own government.

“The right to be exercised in forming government has been given exclusively to the Members of Parliament who no longer get fresh mandate but decide on a blank check by themselves as to who should be the Prime Minister, contrary to how the electorate had elected.”

For as long as the situation prevails, pending the promulgation of the Reforms Act and extensive amendments to the constitution, Puseletso claims that there is a violation of the basic structure of the Constitution provided for in Section 1 of the Constitution.

He adds that there “was also a flaw in the manner in which the process leading to the complete amendment was also embarked upon, as Section 87 of the Constitution is not capable of being divorced from Section 86. Section 86 spells out the executive authority of Lesotho, while Section 87 spells out how that authority can be exercised. I submit that on the premises, the basic structure of the Constitution has been violated.”