Lesotho: Supporting Access to Justice

Salc : Staff Writer

SALC supported the wife of the late former commander of the Lesotho Defence Force (LDF), Brigadier Maaparankoe Mahao, to oppose court proceedings brought to set aside an investigation into her husband’s killing in the matter of Hashatsi v the Prime Minister of Lesotho and Others.

Brig Mahao was killed in June 2015 by members of the LDF. His killing occurred in the context of a security crisis in Lesotho and under the allegation that he and a number of others were plotting a mutiny against the current LDF Commander General Kamoli.

At the invitation of the Lesotho government, the Southern Africa Development Community (SADC) was called to intervene. With the cooperation of the government, SADC established an independent Commission of Inquiry (the “Phumaphi Commission”) to investigate the circumstances of Brig Mahao’s death and the mutiny plot allegations.

The applicant in the case, Hashatsi, is a Special Forces Commander who has been implicated in Brig Mahao’s killing. Amongst other relief, the applicant filed an urgent application in the High Court to interdict the Commission from making any findings against him and to set aside the Commission’s proceedings.

None of the cited respondents, including the Prime Minister, opposed the application. Mrs Mahao successfully sought leave to intervene as the fifth respondent. Mrs Mahao argued that the application should be dismissed and that the applicant was not entitled to the relief he sought.

The Transformation Resource Centre (TRC) successfully sought leave to intervene as amicus curiae. They argued that the Commission aimed to advance peace and security in Lesotho more broadly than the applicant’s interests. The TRC submitted that the Commission should be allowed to finalise its proceedings and release the Report in the absence of any valid legal objections against its process.

The matter came before Monaphati J on 2 December 2015 for hearing. Monaphati J granted the TRC leave to intervene as amicus curiae. The fifth respondent advanced procedural objections against the application. The hearing was postponed at the request of the applicant’s legal counsel until 18 and 19 January 2016. Arguments on the procedural objections and merits were advanced on 18 and 19 January. The matter was postponed once more until 5 February 2016 for further argument on whether the case must be dismissed as moot in the light of a communique from SADC indicating that the Commission’s report had been received by the Lesotho Government. On 5 February the High Court dismissed the plea that the application was moot. On 8 February the High Court dismissed the application in its entirety, affirming the legality of the Commission and its proceedings. The Prime Minister presented the Commission report to Parliament on the same day with references to the applicant expunged from the report. The applicant appealed the High Court’s decision to the Court of Appeal. The Court of Appeal heard oral arguments on 17 October 2016 and judgment was handed down on 28 October 2016 dismissing the appeal.

 

Court of Appeal judgment
Appellant’s Heads of Argument
Court Diary