Lesotho: Mosisili Loses Court Appeal

12 February 2019

RETHABILE Mosisili, the son of former prime minister Pakalitha Mosisili, has lost his appeal against his 2017 dismissal from the Lesotho Highlands Water Commission (LHWC).

The verdict was delivered last Friday by the Acting Justice of Appeal, Moses Chinhengo, who said Mr Mosisili's appeal had been dismissed with costs.

"The matter has been decided on by myself (Justice Chinhengo), the Acting Justice of Appeal (Phillip) Musonda and the Acting Chief Justice ('Maseforo) Mahase and we came to the decision that the application is dismissed and appellant must pay the defendants legal costs," Justice Chinhengo said.

He however, did not provide reasons for their judgement. The Lesotho Times subsequently learnt from the Court of Appeal and High Court information offices that a written judgement, which would reveal reasons for the decision, would be made available during the course of this week.

Mr Mosisili was appointed chief delegate to the LHWC on 1 April 2017 during his father Pakalitha Mosisili's tenure. Prior to that appointment he was the deputy principal secretary in the Ministry of Water Affairs.

His tenure at the LHWC only lasted three months as the Thomas Thabane regime, which assumed power in June 2017, cancelled his appointment the following month.

Dissatisfied with the government's decision, Mr Mosisili lodged an urgent application in the High Court seeking the nullification of the cancellation of his appointment to the water commission.

But in October 2017, High Court judge Justice Tšeliso Monaphathi dismissed his application and ordered him to pay the costs of the lawsuit.

He subsequently appealed to the apex court which only heard his case last Tuesday as it only recently resumed its sittings after almost two years due to a protracted legal battle over the suitability of its president Kananelo Mosito to hold office.

The LHWC's lawyer, Advocate Dyke Thejane, last Tuesday asked the apex court to dismiss Mr Mosisili's appeal on the grounds that he was unprocedurally appointed to the LHWC.

Adv Thejane said Mr Mosisili was appointed when he still had a binding contract with the Public Service Commission (PSC) and therefore he was recalled in order to rectify the anomaly of him having two simultaneous employment contracts.

"The appellant signed a contract with the commission (LHWC) on 31 March 2017 and only applied for the secondment with the public service on 3 April 2017 whereas he had to be cleared by PSC before he could sign a new contract," Adv Thejane told the court.

"He signed a contract with the LHWC while he was still contracted by the public service (as deputy principal secretary) but in law, two contracts cannot coexist. This renders his second contract null and void.

"In recalling him back to the civil service, the principal secretary to the Ministry of Water was taking corrective measures because the right procedures were not followed when the appellant was appointed to the commission.

"The appeal is also silent in that the appellant returned to his previous position in the civil service and he was also moved to the office of the Ombudsman," Adv Thejane said.

He also said the appeal should be dismissed for the reason that it was not accompanied by the written judgement by Justice Monaphathi which would show why Mr Mosisili's High Court application was dismissed in October 2017.

Adv Thejane said in the absence of the written judgement, Mr Mosisili was basing his appeal on "speculation" rather than solid facts.

In his application at the apex court, Mr Mosisili argued that Justice Monaphathi misdirected himself by dealing with the merits of his case instead of the procedure that government followed in nullifying his appointment to the LHWC.

"The learned judge in the High Court misdirected himself in dealing with the merits of the recall instead of the process leading to the recall, thereby misinterpreting the nature of review proceedings because in the review proceedings the correctness of the decision is not an issue.

"The learned judge erred and misdirected himself in dismissing the application as the evidence reveals that the appellant was not granted a prior hearing," part of Mr Mosisili's application states.

And last Tuesday his lawyer, Adv Thabo Mpaka, argued that the appeal should succeed even if it was not based on any written judgement as there were other appeals which were heard in the absence of written judgements.

"The mere fact that a written judgement is not part of the record does not make the appeal incomplete. My colleague (Adv Thejane) knows that the problem of absence of written judgements persists and several cases have been heard in the absence of written judgements.

"Furthermore, we have been rallying to get written judgements but to date we have failed," Adv Mpaka said.

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