Army loses appeal bid over officer’s benefits

RELEBOHILE TSOAMOTSE

MASERU – The Lesotho Defence Force (LDF) has lost a court bid to overturn a High Court judgement ordering the payment of the salary and terminal benefits of its late officer Kelebone Maieane. The army had appealed the judgment arguing that they are unable to reinstate a late officer in order to afford him the benefits, but the Appeal Court last week dismissed them and upheld the High Court judgement – basically declaring that Maieane was still in service when he passed and, therefore, his benefits are to be paid.

Maieane died in detention on May 9, 2003, serving a seven-year jail sentence when he died on May 9, 2003. He died at the Maseru Central Correctional Institution, having been discharged from service a year before. He was discharged on May 6 2002 on account of his conviction by the Maseru Magistrate Court.

Maieane, along with six of his colleagues were on March 4, 2002, convicted of attempted murder, armed robbery, assault with intend to cause bodily harm and malicious damage to property following an incident that happened in 1998. The then LDF commander, Lieutenant General Makhula Mosakeng, on May 2, 2002, asked Maieane along with his co accused/ convicts to show cause why they should not be dismissed from the army on account of their conviction.

They reportedly did not respond to the letters and were subsequently fired. Approximately 12 months later, Maieane died while still serving his sentence; his co-accused (also soldiers) completed their sentences. In an unexpected turn of events, Maieane’s co-accused were reinstated to their positions 14 years later, in 2017. They were also paid their salaries in arrears, from the date of their discharge. The reinstatement was as a result of a court application by one of them (Letuka) which resulted in the Constitutional Court setting their conviction aside. They argued that they were similarly placed with Letuka and were as a result allowed back to their positions.

When she learned about the developments, Maieane’s daughter, Palesa Maieane Raselemane wrote to the LDF and asking for his father to be treated as having been in service until his death. She also cited Letuka’s case, arguing that his father was similarly placed with his fellow accused. She argued that had he not met his death, his father would have been reinstated along with the other soldiers. However, the LDF refused to release the funds, prompting Raselemane to approach the High Court.

By refusing to pay his father’s benefits, she contended that the army was discriminatory and thereby asked the High Court to declare that his father was entitled to his salary arrears and terminal benefits for the period up to his death and that it be declared that the LDF’s “decision treating the late Kelebone as still discharged from the LDF as at the time of his death, to be discriminatory.”

On top of that, Raselemane asked the court to direct the army to afford and treat his father’s case the same way with his co accused and reinstate him as it has done with other convicts.  “This Letuka was convicted together with my late father and he was the only one who took up the appeal hence the decision in C OF A (CIV) No 38/14. Thus, it is clear, that as some members of the LDF who were convicted together with my late father got re-instated, he would as well have been reinstated had he been alive; otherwise the whole exercise would have been discriminatory and thus wrongful.

This being the case, it would suffice to treat my late father’s case up to his date of his demise same as his convicts; he has to be regarded as having also been reinstated until his date of death…” Raselemane said in an affidavit. She added “As I have mentioned some of my late father’s colleagues have been reinstated and even paid their salary arrears.” However, LDF insisted it cannot reinstate in death but was dismissed.

“The application is granted as prayed,” the High Court ruled, but dissatisfied with the outcome, the LDF appealed the High Court judgment but were dismissed once more. The Appeal Court said it is convinced that Maieane’s co-accused were reinstated on the basis of the Letuka case and, therefore, that ought to apply to him as well. The court also said no evidence has been placed to prove otherwise.

“I am satisfied that the evidence before the court below and this court shows that Letuka’s case determined the general treatment that was to be accorded to Kelebone’s co-convicts. That to me, absent other evidence to the contrary, was the reason that 1st Appellant reinstated them.

There does not appear to be any reason that the respondents father should not be deemed to have been re-instated and his salary and terminal benefits paid up to the time of his death,” Justice Moses Chinhengo said in his judgment.

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