. . . soldier barred despite High Court ruling
MASERU – Anxious Lesotho Defence Force (LDF) soldier kicked out from the army in 2007, Private (PVT) Mokitimi Senakane’s fate hangs in the balance after he was once again denied entry at the Ha Ratjomose Military Barracks. Public Eye can report that Senekane yesterday presented himself at the army base to the LDF human resource office following dismissal of the army’s appeal against a High Court judgment that invalidated Senekane’s dismissal from the force.
Senekane was fired from the military in December 2007, accused of insubordination and making derogatory statements about the LDF and its officers in an interview he had with Public Eye on November 23, 2007. In the interview, Senekane spoke to news reporter Nthakeng Pheello Selinyane, about the death of his deceased police officer brother – Sergeant Monyatsi Senekane – who died on February 16, 1997, during a military operation to quell a police strike.
In latest developments Senekane’s legal team, on November 23 wrote to the LDF human resource officer making the army aware to prepare logistics which will see him being accepted to resume his duties as a member of the LDF. The letter presented Senekane before the army command to resume his duties forthwith as a soldier in the service of the LDF; the letter was copied to the Commander LDF Lieutenant General Mojalefa Letsoela.
The LDF Public Affairs Office has, however, professed ignorance of this communication from Pvt Senekane’s legal representatives – with Captain Sakeng Lekola saying “I did state previously that the LDF commander, together with the legal office, is still studying the matter will respond in due time. “And because the Commander is out currently of the country, I cannot, therefore, confirm or deny anything about the letter or comment on action the army has decided to take…we will receive such from the commander when he has dealt with the matter.”
High Court judge, Justice Moroke Mokhesi, had on October 15, 2020, declared Senekane’s dismissal invalid for the commander’s failure to comply with the law as well as other ulterior moves used to get rid of soldier. The judge ruled that Senekane’s discharge was invalid and of no force and effect. The net effect of this was reinstating Senekane to his position, but the LDF argued that the court did not order reinstatement and denied him entry back into the army barracks.
In an interview with Public Eye after this particular High Court judgment, the army said they did not consider Senekane as part of the institution and that they were waiting for the Court of Appeal to settle matter. This was after Senekane reported to work but was denied entry to the army base headquarters in Maseru – with authorities saying he will be contacted at a later stage.
When Public Eye sought an explanation from the LDF in June this year, Captain Lekola said “in our view, Ntate Senekane is not a member of the LDF and there was no way he could be allowed back.” Lekola had also argued that the High Court had not ordered his reinstatement.
In his judgment, Justice Mokhesi said “an order of reinstatement is not competent where the dismissal is invalid and of no force and effect. To speak of an order of reinstatement in that case is a contradiction in terms. “An invalid dismissal is a nullity. In the eyes of the law an employee whose dismissal is invalid has never been dismissed. If, in the eyes of the law, that employee has never been dismissed, that means the employee remains in his or her position in the employ of the employer…”
The army maintained then that the disagreement between Senekane and the LDF would be solved by the Apex Court when it finally determines the case (October session). They argued that Justice Mokhesi erred and misdirected himself in holding that the power of the commander to invoke Section 31 of the LDF Act of 1996 in order to discharge is applicable after conviction is made by military courts.
The Appeal Court last week dismissed all of the LDF’s contentions in its Thursday judgment authored by President of the Court, Dr Kananelo Mosito, and agreed to by Justices Petrus Damaseb and Van der Westhuizen. The court also disagreed with the LDF’s stance that the commander needs 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.
In the judgment Justice Mosito continued that “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 judgment also concluded that Justice Mokhesi was correct in concluding that Senekane’s expulsion was of no force and effect in that the lawgiver sought to reign.