Out-of-court settlement for Senekane
RELEBOHILE TSOAMOTSE
MASERU – The Lesotho Defence Force (LDF) and retired soldier Private Mokitimi Senekane have reached an out-of-court settlement regarding the payment of salary arrears owed to Senekane during the period of his unjust termination. Following extensive litigation, the LDF and Senekane mutually agreed to a separation, with the understanding that his salaries would be paid from January 2008 to February 2023, the time of his scheduled retirement. This agreement was formalised as a court order this week by Judge Polo Banyane, who directed the payment of “salary arrears calculated from January 2008 to February 2023.”
Senekane was discharged from the LDF in December 2007 amid allegations of misconduct and derogatory statements made about the LDF and its officers during an interview with Public Eye on November 23, 2007. Despite challenging the dismissal in 2008, the legal process extended over 12 years, finally reaching a hearing in 2020. On October 15, 2020, High Court Judge Moroke Mokhesi declared Senekane’s dismissal invalid, asserting that he had never been legally out of employment.
However, the court victory did not immediately resolve Senekane’s predicament, as the LDF continued to deny his status as a member of the force. He faced rejection upon attempting to enter the barracks on the day he reported for duty with his legal representatives.
Senekane’s lawyers, Nthontho Attorneys, in their efforts to compel the LDF to comply with the court order, sent a letter on November 5, 2020. The letter emphasised the court’s declaration that Senekane’s dismissal was null and void from the beginning, entitling him to all arrears with interest.
Despite these legal assertions, Senekane was not allowed entry when he reported for duty on June 11, 2021, as the LDF insisted that the court did not order reinstatement and maintained that he was not part of their ranks.
Despite Senekane being accompanied by a letter from his legal representatives, warning the army to reinstate him immediately, this was not taken into consideration. “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,” read the letter in part.
The letter further stated: “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.”
Judge Mokhesi had clarified that an order of reinstatement was not applicable when the dismissal was invalid, considering it a contradiction in terms. The army’s appeal against the judgement was unsuccessful.
The prolonged resolution of Senekane’s case resulted in him spending 14 years out of service, even after favourable rulings from both the High Court and Appeal Court.
Senekane’s estrangement from the military can be traced back to incidents in 1997 involving the death of his brother, police Sergeant Monyatsi Senekane. The circumstances surrounding the killings suggested extrajudicial executions. These events led to Private Senekane’s subsequent arrest and charges of treason.
In the years that followed, the legal proceedings were marred by additional arrests, including that of Attorney Haae Phoofolo, who represented the accused.
Concerns were raised about the political motivations behind these charges, potentially aiming to impede the defence of Private Senekane, Sergeant Tšukulu, and other police officers Phoofolo represented.
