Advocate Molefi Ntlhoki yesterday told High Court judge Justice Tšeliso Monaphathi he had no powers to hear a case in which Lieutenant-Colonel Tefo Hashes wants the SADC inquiry into the death of former army commander Maaparankoe Mahao declared illegal.
Lieutenant-General Mahao was killed by the Lesotho Defence Force (LDF) on 25 June this year allegedly as he resisted arrest for masterminding a revolt against the army command.
Advocate Ntlhoki, who is representing the Commission’s chairperson Justice Mpaphi Phumaphi and the Commission as second and third respondents in the case, argued the High Court should not hear Lt-Col Hashatsi’s case due to a number of reasons.
The first respondent in Lt-Col Hashatsi’s lawsuit is Prime Minister Pakalitha Mosisili, while Attorney General Tšokolo Makhethe is the fourth respondent. Ms ‘Mamphanya Mahao is the fifth respondent and civic group Transformation Resource Centre is the sixth respondent.
Lt-Col Hashes on 16 October filed an urgent application seeking to block the proceedings of the Commission as he accused it of bias against him.
He alleged in his court papers this bias was clear when he first appeared before it in September. The Special Forces commander says Justice Phumaphi suggested to him that he participated in the killing of Lt-Gen Mahao hence his conclusion the investigation was not impartial.
But Advocate Ntlhoki yesterday told the court his clients wanted the case dismissed on points of law only.
“We did not dispute the merits at all because as far as we are concerned, the merits do not concern us.
“Ours is just a point of law.
“All we say is that Lesotho is a member of SADC and as such, the third respondent (Commission) was set-up pursuant to an agreement of SADC states of which Lesotho is a member.
“This regional organization is concerned with, among others, security and instability of its member-states, and the person who approached his SADC partners was the first respondent, Prime Minister Pakalitha Mosisili.
“SADC did not just impose itself on Lesotho and I’m surprised because in the papers, the prime minister is cited together with the Attorney General but he has not filed any papers,” he said.
“When he is being sued by his own soldier, he doesn’t say ‘no, you cannot sue Phumaphi and the commission because I was the one who consulted SADC for the establishment of the commission’.
“The issue here is about the jurisdiction of this court.
“Does this court have jurisdiction over the second and third respondents?
“Does this court have the ability to decide on this matter as far as the second and third respondents are concerned?
“If this is a SADC commission, does the applicant (Lt-Col Hashes) have the capacity to seek the relief he seeks?
“He doesn’t have the right to bring these proceedings before court,” he submitted.
On the other hand, the lawyer representing Ms Mahao, Senior Counsel Anna-Marie de Vos said Lt-Col Hashes was only entitled to seek court intervention on matters that affect him as an individual.
“In his founding affidavit, he described what happened to him and thought the commission was not fair on him.
“The applicant is not entitled to any of the prayers that are of public interest, but he is entitled to prayers that affect him directly,” she said.
Advocate de Vos also said Lt-Col Hashes had no right to challenge the admissibility of evidence obtained by the commission outside Lesotho because this did not affect him directly as an individual.
“He has no interest where the commission sits.
“If the commission wanted him to give evidence in Thaba ‘Nchu (South Africa), then he could have approached the court to challenge it because it would then be a matter that affected him directly,” she added.
In response, Lt-Col Hashatsi’s lawyer, King’s Counsel Motiea Teele said the confusion was initiated by Justice Phumaphi when he said the commission was not a Lesotho inquiry, but SADC’s.
“As far as the commission is concerned, there is no remedy for the applicant under the Act (Public Inquiries Act).
“What is important here is that what is applicable is the Public Inquiries Act.
“It doesn’t matter whether one calls it the SADC Commission or the Lesotho Commission.
“Justice Phumaphi should have come and told this court why he conducted the commission the way he did,” he submitted.
The lawyer also noted Justice Phumaphi and the commission did not file any affidavits to refute the allegations levelled against them by Lt-Col Hashes.
The case continues today.
Meanwhile, the case proceeded yesterday after Justice Monaphathi had accepted the TRC application to join the proceedings as amicus curiae, which is legally known as friends of court.