Cabinet Minister ignored 'God-given blessing' - Lesotho court

24 October 2019 · Carmel Rickard

The Lesotho courts, already embroiled in a scandal-ridden series of cases involving the Acting Chief Justice, the Prime Minister and others, have now had to intervene in what has been held to be the unlawful action of the Minister of Local Government and Chieftainship. At the end of July, Litsoane Litsoane disbanded the Maseru City Council’s tender board, citing certain ‘irregularities’. But Judge Molefi Makara has now set aside the decision because the tender board members, including Maseru’s mayor and her deputy, had not been given a chance to put their views on the issue. The judge described this as ‘disregarding the God-given blessing upon (all) mankind that a person should be heard before any adverse decision is taken.’ This dispute, and the action involving the ACJ, come as the judiciary struggles with a widespread perception that certain politicians feel entitled to have judges ‘on their side’ in the decisions they make.

Read judgment

Like virtually every other institution in Lesotho, the Maseru City Council – or at least certain of its tenders and some of its members – have been accused of corruption. In response, and citing certain ‘irregularities’, the Minister of Local Government and Chieftainship, Litsoane Litsoane, dissolved the city’s tender board at the end of July 2019.

But tender board members, angered by the move, asked the high court to intervene. Six members, including the mayor and deputy mayor of Maseru, wanted an interim order that the minister and other officials be stopped from ‘interfering’ with board members and their rights and privileges, including their salaries, ‘occupation of houses they currently occupy’ and use of their normal office space.

They also asked that the minister be interdicted from appointing any new members to the tender board while their legal action was finalised. Further, they wanted all decisions made by the board that the Minister had purported to appoint in their place, to be declared null and void.

The presiding judge, Molefi Makara, urged that the two sides try to settle. Despite some attempts, the court was later told no progress was made and that they had ‘agreed to disagree on all the material issues’.

At the next hearing, counsel for the tender board applicants told the court there was a move to oust the mayor. Counsel had written to the Town Clerk explaining that the issue was before the court and that any no-confidence vote thus would be unlawful. But the vote went ahead and the mayor was replaced. While counsel for the mayor argued that this move was intended to frustrate the continuing legal action, the minister’s legal team said there was ‘no nexus’ between the two events. This led to a sharp interjection by the court, with the judge calling for a ‘profound reflection’ on the link and for supplementary affidavits to be filed on this issue.

One of the main complaints by the mayor and other tender board members was that the Minister took the decision to remove them all, without having given them a hearing. The Minister, on the other hand, argued that he had the power to act as he had done and that there was no need to have first heard the applicants’ views.

Judge Makara, however, said that the relevant sections of the Local Government Service Act did not give the Minister the authority to disband the council.

‘It is inconceivable how counsel for the (Minister) assigned such a construction to it while it does not by any stretch of the imagination do so.’

Even if the Minister believed the board had been illegally constituted, it would have had to be lawfully disbanded. In this case, counsel for the Minister had not expressly pleaded facts showing there were special circumstances that ‘justified a disregard of the God-given blessing upon (all) mankind that a person should be heard before any adverse decision is taken,’ said the judge.

What about the vote of no confidence that ousted the mayor, despite an order that the status quo was to be retained while the case was finalised? And what about the argument that the move in no way undermined the court?

The people on the Maseru City Council knew about the case, said the judge. They should have known about the temporary order and that their actions would ‘frustrate’ the case then pending before the court.

‘It is of cardinal importance for the maintenance of the rule of law that judgments of the courts should be respected and honoured.’ In this case the actions of the rest of the council seemed aimed at getting round the court’s interim order. As leaders, the council members should set an example by respecting decisions of the courts. It might be that they suddenly faced a change in their own fortunes and needed the help of the courts. ‘They would certainly not be happy if, after the judgment is entered in their favour, their adversaries resort to unorthodox tactics calculated (to render) it impotent.’

The judge also stressed that while he had granted most of the orders requested by the tender board, he could not agree to interdict the pending disciplinary inquiry against the mayor. To do so would have unjustifiably deprived the Minister of the power to discipline someone who commited misconduct. The court may not frustrate the exercise of disciplinary powers, properly exercised, he said.

While the Minister comes to terms with the significance of the orders against him in this case, other government parties are preparing for a showdown with three high court judges. The trio is set to hear a misbehaviour case against the ACJ – despite the fact that they are her juniors and are said to be facing disciplinary action as a result of complaints she has made against them. And despite the fact that there is a long-established practice in Lesotho, as elsewhere, that a neutral judge from outside should be invited to preside where litigation involves a judge from the local judiciary.

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.