MASERU – December 15, 2023 marked an end of the 2023 legal year and the High Court is set to resume its full operations on February 1. While the majority of the staff and services are on a break during this period, there is a judge on call who attends to urgent matters including bail petitions instituted during the vacation. The break is also an opportunity for judges to write pending judgments. When the new legal year begins on February 1, Chief Justice Sakoane Sakoane is expected to give an update on the work and performance of all courts as the head of the judiciary, including the statistics of cases recorded, those disposed of and those that are still pending. Several cases that made headlines in the past year are yet to be solved.
Mothala VS NSS Director General
A case involving 77 former National Security Services (NSS) officers who got fired by the 2017 Thomas Thabane-led coalition government is yet to be solved after the Court of Appeal ordered High Court Judge Keketso Moahloli to pronounce judgement on the matter. Justice Moahloli had declined jurisdiction after hearing arguments in the case as NSS sought to justify the expulsion of the 77 disgruntled officers. In a long-drawn-out legal battle, the agents approached the court sometime in 2018 following their dismissal but the then High Court Judge Semapo Peete nullified their dismissal a year later, on May 21, 2019.
However, Justice Peete’s judgment did not result in the automatic reinstatement of the 77 officers as NSS successfully appealed the matter on November 1, 2019 when the Appeal Court cancelled Judge Peete’s order and ordered that the matter be heard afresh before a different judge.
Justice Moahloli then became seized with the matter. He heard arguments in the matter on November 7, 18 and 22, 2020 and as well as on March 25, 2021 and reserved judgment.
The ruling only came on August 12, 2022 following protests by litigants who said the judge was taking forever to give a verdict. In his judgment, Justice Moahloli ruled that the High Court does not have jurisdiction to entertain the complainants’ case since theirs was a labour matter that fell outside the jurisdiction of the court.
It is said the question of jurisdiction was not raised by any of the parties before Judge Moahloli and that he had listened to all arguments despite dismissing the whole case on the jurisdictional point. The 77 appealed yet again and the Court of Appeal ruled on November 17, 2023 that the High Court has jurisdiction to determine the disgruntled officers’ case and also ordered Judge Moahloli not to hear the matter again but to give reasons on the basis of arguments made when he declined jurisdiction on August 12, 2022. The Appeal Court ordered Justice Moahloli to hand down judgement “within a reasonable time.”
Rex Vs Tlali Kamoli and four others (Treason)
The first witness in the infamous treason trial is yet to take the stand after the trial experienced several setbacks since it was registered in the criminal registry. First, it was awaiting the appointment of foreign judges that would be appointed to hear it along with other high profile cases earmarked for foreign judges. High Court judge Justice Maliepollo Makhetha postponed the trial to April 2024 and only then when progress might be made on the case. The case has already come before two other judges.
Botswana Judge Kabelo Lebotse, then Acting High Court Judge, was initially seized with the trial but resigned before making any substantial progress. He only dealt with interlocutory applications, including an application where his recusal was sought.
When Justice Lebotse resigned, Chief Justice Sakoane Sakoane took over the trial but was ordered to recuse himself by the Court of Appeal. The Apex court’s order came after Judge Sakoane declined to recuse himself when Director of Public Prosecutions (DPP) Advocate Hlalefang Motinyane applied for his recusal.
Motinyane was unhappy with Judge Sakoane’s decision to bar Abrahams from further leading prosecution in the trial. Abrahams’ expulsion followed his failure to show up in court on the date set for hearing. Advocate Motinyane successfully appealed Justice Sakoane’s refusal to recuse himself and Abrahams’ expulsion and the Appeal Court then ordered him to recuse himself and for the trial be heard by a different judge.
Justice Makhetha then became seized with the matter and has so far dealt with two interlocutory applications; a bail petition and application to quash charges against some of the accused. The actual trial is yet to start.
Motion of no confidence/ 9th amendment to the Constitution
The Revolution for Prosperity (RFP) sanctioned court application to block a motion of no confidence against Prime Minister Ntsokoane Matekane and an attempt to prevent and block a change of government within parliament made headlines in the past legal year and is also likely to be decided when the High Court re-opens.
The Constitutional Court made up of High Court judges: Ts’eliso Monapathi, Molefi Makara and Keketso Moahloli heard arguments from RFP MP Lejone Puseletso’ s lawyers and opposition parties opposing the application to nullify the 9th amendment to the Constitution.
Puseletso instituted the application when PM Matekane was faced with a motion of no confidence and he prayed that the motion be deferred until the reforms process, including those regulating motion of no confidence, are finalized.
He also wants the 9th amendment to the Constitution to be nullified so that Matekane may call for elections should a motion of no confidence against him succeed. The amendment allows for a change of government within parliament as it did away with the option a Prime Minister had to call for elections when confronted by a motion of confidence.
Puseletso argues that the amendment violated the basic structure of the Constitution. He said when section 87(5) (a) of the Constitution was amended and removed the power of the Prime Minister under the old section to opt for the dissolution of parliament in the event of the 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 need to get fresh mandate but decide on a blank cheque by themselves as to who should be the Prime Minister, contrary to how the electorate had elected,” he said.
He added 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 Constitution is not capable of being divorced (sic) 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 in the premises, the basic structure of the constitution has been violated and that calls for the pronouncement per the order sought in the notice of motion.”
Tholoana Molapo Vs Mankuebe Molapo
In a land mark case, the High Court (sitting as the Constitutional Court) will in March make a determination as to whether female offspring and children borne out of wedlock can become heirs to their biological fathers. This after Tholoana Molapo a 22-year-old adult female from Katlehong in the outskirts of Maseru CBD, challenged the customary law provisions and those of Children Welfare and Provision Act preventing her from inheriting her late father’s property.
In particular, Section 11 (1) of the Customary Law states that the heir in Basutoland shall be the first male child of the first married wife, and that if there is no male in the first house, then the first born male child of the next wife married in succession shall be the heir. Tholoana is also challenging the Children Welfare and Provision Act 2011’s definition of a child. The Act describes a child as a person under the age of 18 and Tholoana argues that it is discriminatory and narrow.
She says the definition should be broad enough to include children beyond the 18 years of age and that the definition in its current form has the legal effect of disinheriting her and children in her position of their rights to inherit properties of their parents.
“A child will always be a child to his or her parent despite age,” she says. Tholoana argued that Section 11 (1) of the Customary Law discriminates against her and girls or women from inheriting and administering property on the basis of their sex or gender. She also said the rule envisaged in Section 11 of the Laws of Lerotholi provides that only male children may inherit property of their parents and thereby rendering boy children competent and superior to female children. By so doing, Tholoana argues that it renders female children incompetent to inherit and administer property by reason of their gender alone. On top of that, she said customary law recognises only male children beyond the age of 18. This, she argues, is discriminatory, unreasonable, unnecessary and unconstitutional.
All these provisions, she argues, “serve no legitimate purpose but to punish innocent children like me on grounds beyond their control, i.e., sex and birth status. It also discriminates between men and women who bear children out of wedlock. Women who bear children outside marriages are burdened with liability to provide property open for inheritance by their illegitimate children.” If anything, she argues that that the law removes the responsibility from men who bear illegitimate children.