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Lesotho Court of Appel decision on SADC Commission of Inquiry

On Friday 28 October 2016, the Lesotho Court of Appeal, per Farlam AP, handed down judgment in the case of Tefo Hashatsi v Prime Minister and 5 Others.

A year earlier, on 16 October 2015, the Lt Col Hashatsi, a member of the Lesotho Defence Force (LDF) brought an application to set aside the proceedings of a Commission of Inquiry. The Commission of Inquiry (Phumaphi Commission) was appointed by the Prime Minister at the initiation of the Southern Africa Development Community (SADC) to enquire into political and security incidents which occurred between July 2012 and June 2015. A primary task of the Commission was to investigate the circumstances surrounding the killing of the former LDF commander, Lt Gen Mahao in June 2015.

The Prime Minister and Phumaphi Commission, for different reasons, did not oppose the application. For this reason, Lt Gen Mahao’s wife entered the proceedings as the fifth respondent to ensure that the legal challenge does not result in the Commission’s proceedings being set aside in its entirety.

Lt Col Hashatsi challenged the proceedings of the Phumaphi Commission on a number of grounds, focusing primarily on the manner in which he was questioned by the chairperson of the Commission on whether he was present during the incident that led to Lt Gen Mahao’s death. After this initial evidence, when the applicant refused to answer any questions, he received a notice from the Commission calling on him to appear before the Commission on 21 October 2015. In an attempt to avoid appearing before the Commission, he then launched his application on 16 October 2015.

Whilst the applicant’s position was that he was not informed in sufficient detail of the allegations against him, the Court of Appeal held that this was not the case since the summons to give evidence specifically mentioned the allegations raised during evidence. The Court of Appeal agreed that much of the relief sought in the matter was moot from the point when the Prime Minister handed the expunged Phumaphi Commission report to Parliament on 8 February 2016. The expunged report does not contain the name of the applicant as his case was said to be sub judice at the time. The Court of Appeal further emphasised that the argument raised by the applicant in the proceedings was incorrect in that there was no specific finding of guilt by the chairperson of the Commission against the applicant during the Commission hearings. The Court of Appeal accordingly dismissed the appeal.

A significant consequence of the dismissal is that the argument by the Lesotho government that the validity of the Commission’s proceedings was before the courts and could not be implemented no longer stands. A key recommendation by the Phumaphi Commission was that the government of Lesotho should ensure that criminal investigations into the death of Lt Gen Mahao be pursued vigorously and that the Lesotho Mounted Police Service be empowered and resourced accordingly. The Commission further recommended that the investigation should be conducted expeditiously and comprehensively without any hindrance and that all physical evidence be surrendered. Now that the Court of Appeal process has come to an end, there is no reason why these and other recommendations of the Phumaphi Commission should not be fully implemented.

Issued by the Southern Africa Litigation Centre (SALC)

For court documents:

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