Prime Minister Moeketsi Majoro insists that suspended Directorate of Corruption and Economic Offences (DCEO) Director General, Mahlomola Manyokole, should appear before the tribunal which was set up last December to determine his fitness to remain in office.
By appearing before the tribunal, Advocate Manyokole "will have all the time and tools to defend himself" and prove his fitness to remain in office, Dr Majoro said.
The premier said this in his papers submitted to the Court of Appeal in response to Adv Manyokole's appeal against the February 2021 High Court judgement which upheld his suspension and Dr Majoro's decision to appoint a tribunal to investigate the DCEO boss.
The tribunal is headed by Retired Justice Teboho Moiloa, who will be assisted by High Court Judge Polo Banyane and retired judge, Semapo Peete.
Adv Manyokole was suspended on 7 January 2021 by Prime Minister Majoro on allegations of incompetence. He was suspended on the advice of Justice and Law Minister, Professor Nqosa Mahao.
In his 18 February 2021 judgement, High Court Judge Moroke Mokhesi "dismissed with costs" Adv Manyokole's application challenging his suspension and seeking the reversal of the appointment of the tribunal.
However, the judge also ruled that Adv Manyokole's suspension while his case challenging that decision was pending was illegal.
Justice Mokhesi ruled that the DCEO boss should still face the tribunal because this did not automatically mean that he would be found unfit to remain in office.
He said the tribunal was merely set up to inquire about Adv Manyokole's fitness to remain in office and it could still clear him after its probe.
Adv Manyokole should therefore have his day before the tribunal and either be cleared of any wrongdoing or found guilty depending on the evidence, Justice Mokhesi ruled.
Unhappy with the High Court ruling, Adv Manyokole subsequently appealed to the apex court to reverse the verdict.
Dr Majoro, Justice and Law Minister Prof Nqosa Mahao, Chief Justice Sakoane Sakoane, the Attorney General, the tribunal on the removal of director general of the DCEO, Justices Moiloa, Peete and Polo Banyane are first to eighth respondents respectively in the application.
The matter was heard yesterday by the Court of Appeal bench comprising of the court's president, Justice Kananelo Mosito, as well as Justices Phillip Musonda (Zambia) and Petrus Damaseb (Namibia). They reserved judgement to 14 May 2021.
Adv Manyokole's lawyer, Adv Tekane Maqakachane, asked the apex court judges to nullify the tribunal because his client was not afforded a hearing before it was set-up.
"The previous court held in paragraph 43 of its judgement that it is clear the decision (by Prof Mahao) to advise the prime minister to establish a tribunal without hearing the appellant is unfair," Adv Maqakachane argued.
"However, the same court comes back to decide in paragraph 45 that the appellant was fairly treated. The approach of the court was wrong as it has run inconsistently with the audi alteram partem (hear the other side) rule.
"A concerned party must be afforded a hearing before an action can be taken against him. Neither the prime minister nor the minister (Mahao) afforded the appellant a hearing. If the minister moves to advise the prime minister to establish a tribunal without affording the appellant a hearing, it is the duty of the prime minister to afford him such. Public powers must be exercised fairly.
"The Legal Notice (establishing the tribunal) must also state the grounds of his inability to hold office. We therefore pray that the decision to establish the tribunal without hearing the appellant be set aside and that the Legal Notice should also be set aside as null and void."
The respondents were represented by Attorneys Monaheng Rasekoai and Kuili Ndebele as well as Adv Christopher Lephuthing.
Mr Rasekoai counter-argued that Adv Manyokole waived his right to make representations by failing to reply to the "show cause" letter from Prof Mahao. He argued that Adv Manyokole would now be afforded a proper hearing by the tribunal.
"We stand by the reasoning of paragraph 42 of the previous court judgement which states that, 'it is true that the appellant was not afforded a hearing before the decision to advice the appointment of the tribunal was made but that alone does not spell the end of the matter because it is still incumbent upon the appellant to satisfy the court that in the circumstances of this case, the first and second respondents (Majoro and Mahao respectively) did not treat him fairly'.
"The purpose of the tribunal is to accord the appellant a hearing. It is an enquiry where he will have all the tools to defend himself. He (Manyokole) was afforded a show cause letter in order to make representations but he chose not to respond. A number of issues relating to the inquiry into his fitness were tabled in the show cause letter. I find no blemish in the conduct of the prime minister or minister. The office of the DCEO must be held accountable to the minister and the prime minister," Mr Rasekoai argued on behalf of Dr Majoro and Prof Mahao.
In reserving judgment, Justice Mosito said they had "enjoyed the arguments and we will return on 14 May with the judgment".