The on-going tribunal to determine the future of suspended Director General of the Directorate on Corruption and Economic Offence (DCEO) Advocate Mahlomola Manyokole, at the helm of the anti-graft body took a different and unfathomable twist as his referral application was turned down this week.
Manyokole was dissatisfied with the tribunal’s ruling on the matter of authority where the latter was questioning the issue of expired period of tribunal since the commencement of its duty back in June 4, 2021. After his argument was brushed aside, he opted for a notion of referral, where he sought the same tribunal to refer the same legal questions to the High Court for further determination, which also amounted to naught when the tribunal this week denied the application without reasons.
The tribunal was chaired by retired High Court Judge, Justice Teboho Moiloa, retired Justice Semapo Peete and High Court Judge, Justice Polo Banyane.
“What we will do at the moment is to give you a decision of a tribunal and promise to give you the full reasons on Monday. The decision of the tribunal is that the application is refused and the full reasons will be available on Monday afternoon,” Moiloa said.
The argument of Manyokole who is legally represented by Advocate Tekane Maqakachane, is that the tribunal’s prescribed eight weeks’ period within which the Tribunal had to complete the work and submit the Report of its findings and recommendations has long lapsed.
The decision of tribunal which was conveyed by Justice Banyane on November 1, 2021 stated that in terms of section 3 of the constituent Legal Notice No. 139 of 2020, the investigatory work of the tribunal starts when tribunal hears the evidence of the witness, and therefore the authority of the tribunal has not expired as no evidence has yet been heard.
It was then when the respondents in the matter applied for the decision to be referred to the High Court of Lesotho for determination. This issue follows the matter of recusal where Manyokole sought the chairman of the tribunal to recuse himself due to the fact that he is implicated in the matter.
“In the law the exercise of any public power is inextricably intertwined and connected with the performance of functions and mandate of the public functions and mandates of the public functionary or statutory functionary, such that no power may be exercised but for the purpose for which the law granted the power,” he said.
“A member of the tribunal enjoys protection and immunity as a judge of the High Court only “in the exercise of his or her duty,” such that if the work of the tribunal has then not yet started, there is no duty then to perform or exercise, and the issue of immunity and protection does not arise.
“Manyokole as a farmer and a father is duty bound to daily transport (to and fro) his children who attend school in the Republic of South Africa, and as a farmer is entitled to pursue farming activities for purpose of growing food and feeding his family, and section six and seven of the Constitution guarantees his rights to personal liberty and to freedom of movement, unless such rights are limited by a law which justifies such a limitation for reasons prescribed in those sections of the constitution, and yet the tribunal on the basis of the Legal Notice 139 requires Mr Manyokole to be in attendance and not free to pursue his aforesaid interest and to enjoy the aforesaid rights and freedoms,” he said.
“Manyokole, in terms of section 23 of the Public Inquiries Act 1994 read with section 4 of the Legal Notice 139 of 2020, requests the Honourable Tribunal to refer the following questions of law to the High Court for determination.
“The tribunal was in law (Legal Notice 139 0f 2020), the Interpretation Act 1977 and public law principles) correct to hold that it still has legal authority to discharge the functions and mandate granted to it and delimited by Legal Notice number 139 of 2020,” he said.
He continued that, “Whether if the commencement of the work of the tribunal will only start when tribunal hears evidence, and is yet to hear such evidence, though loads of documents (charge sheets, affidavits, documentary evidence, etc.) have already been generated before the Tribunal, whether there are in law any charges, affidavits and documentary evidence before the Tribunal, and whether the Tribunal is in law entitled and authorized to rely on any such charge sheets, affidavit or document for any finding or recommendations pursuant to the Legal Notice 139 of 2020,” he said rising the questions he intends to be referred to the High Court.
“On what basis in law is Manyokole required filing his opposing or answering affidavit in reaction to the affidavits filed by the seven dependents already filed with the tribunal?” he asked.
“If the tribunal is wrong on the first legal question, and consequently the tribunal’s authority expired on August 6, 2021 or thereabout and has no power or authority beyond August 6, 2021 whether the tribunal has any powers, protection and immunity as prescribed by Legal Notice Number 139 0f 2020 and the Public Inquiries Act 1994 beyond August 6, 2021.
“Manyokole is none the less legally obliged to continue to respect the tribunal by attending the proceedings and remaining in attendance until excused by the tribunal, and in the event of non-compliance as a result of his engagement for reasons afore-mentioned or for other reason, Manyokole would have disobeyed the Tribunal and consequently subject to contempt jurisdiction thereof (and whether such) jurisdiction or power survives the termination of the eight weeks period from August 6, 2021.
“If the tribunal is wrong on the first legal question, to continue summoning or requirement by the tribunal of Manyokole to attend the proceedings and to remain in attendance until excused by the tribunal effectively renders Manyokole to be in detention by the Tribunal and prevented from moving and going about his business and family affairs as mentioned above, and consequently in violation and contravention of section six and seven of the Constitution, which entrench and enshrine Manyokole’s personal right to liberty and freedom of movement,” he said.
“If the tribunal is wrong on the first legal question, whether the Legal Notice 139 of 2020 and or Public Inquiries Act 1994 constitute a law as envisaged by section 6 (1) and 7 (3) (a) to (h) of the Constitution so as to justify the detention of Manyokole before the Tribunal and his denial of his freedom of movement by the tribunal.” He said.
Meanwhile, advocate Koili Ndebele on behalf of Attorney General (Advocate Rapelang Motsieloa) stated that the tribunal does have the jurisdiction to determine whether the point raised qualify as such for referral he illustrated that the points do not qualify as such. He said Manyokole has to be present during his hearing throughout the trial and that the application of referral is only meant to delay the case.
“The point raised in paragraph 4.2 and 6 is ill-taken, there has never been any proposition that the non-attendance of the Tribunal hearing by the Director General attracts contempt jurisdiction as alleged or at all. This is fictitious point of law raised without any jurisdictional basis and any proposed suggestion to that effect is taken issue with and the Tribunal has the full jurisdiction to decide this issue as it does not qualify as a substantial point of law as alleged or at all.
“I aver that the Director General is an employee of the Government of the Kingdom of Lesotho and he is bound by the principles which govern his employment contract to attend his disciplinary enquiry. He is on full pay and all issues which have to do with his employment inclusive of a disciplinary enquiry cannot be attended by himself at will.
“He remains an employee and is bound by law to be in attendance of his disciplinary enquiry and cannot attend it at will when it is clearly an integral part of his employment contract,” he said.
He continued that, “He is on suspension on full pay with benefits and the reciprocal rights of the employer include that of demanding his attendance of his hearing until concluded. His disciplinary hearing cannot be conducted in absentia on his part on grounds that he is farmer entitled to pursue farming activities for purposes of growing food and feeding his family; and further that the constitution guarantees that he utilizes the time of the employer meant for the conduct of his disciplinary hearing to fetch his children from Republic of South Africa and to forge ahead with his farming activities when the disciplinary enquiry is ongoing.
“I wish to take the Tribunal into my confidence and assert that this is not a substantial question of law but a ruse aimed at derailing and delaying the proceedings and must be dismissed outright. It does not pass the muster as contemplated in section 23 of the Public Enquiries Act and neither does it pass the muster as envisaged in section 128 of the constitution of Lesotho,” he said.
He further pointed out that the Tribunal does have the jurisdiction to determine whether the point raised qualify as such for referral he illustrate that the points raised are of no moment and do not qualify as such.
“There is no constitutional violation of the right to freedom of movement as alleged or at all and neither is there any violation of the right to personal liberty as alleged or at all. Director General must attend all the proceedings of his disciplinary enquiry and no constitutional issue can be raised from this novel and misleading proposition raised in this frivolous application.
“Clearly the Director General is abusing the tribunal processes in everything that he does and his conduct is telling in this regard. This application is nothing but a red herring and must be rejected outright. Wherefore I respectfully aver that this application must be dismissed forthwith,” he said.