….says she has been “incompetent” long before getting top job
…but confirms DPM Majara indeed asked her to drop treason charges against the gvt’s allies
…admission likely to bolster DPP’s case against gvt
Moorosi Tsiane
THE government has hit back at the Director of Public Prosecutions (DPP), Hlalefang Motinyane, accusing her of neglecting her prosecutorial work from as far back as 2008 when she was still the chief attorney in the DPP’s office before her elevation to the helm of the organisation.
She had been slapped with a written warning on 22 June 2010 for “neglecting” more than 70 cases which she had been mandated to prosecute, the government alleges in its response to Advocate Motinyane’s court application in which she is seeking to forestall a spirited bid to oust her.
DPP Motinyane served under former DPP Leaba Thetsane as a prosecutor and then chief attorney in that office. Adv Thetsane KC was fired in 2017 and she was subsequently promoted to replace him by ex-premier Thomas Thabane.
Prime Minister Sam Matekane’s government, which took over government, in October 2022 has since tried to oust Ms Motinyane, accusing her of gross incompetence. It had served her with a demand to show cause why an impeachment tribunal should not be appointed to probe her fitness to remain in office.
But a defiant Adv Motinyane is standing her ground. She has gone to court seeking an order to stop her removal. She claims she is being victimised for safeguarding the independence of her office after she rejected directives to drop serious charges against Mr Matekane’s political allies.
Incompetent
And now Attorney General Rapelang Motsieloa insists that it is prudent for DPP Motinyane to be sent packing, claiming she had always been “incompetent” even before being elevated to the plum post.
Adv Motsieloa KC makes the claim in his answering affidavit filed in opposition to DPP Motinyane’s petition to have the Constitutional Court halt efforts to impeach her from office.
“The DPP carefully crafted the narrative advanced in her founding affidavit and failed to take the court into her confidence by not disclosing the historic complaints against her refusing to work through dockets that were piling on her desk. These complaints range as far back as 2 June 2008 when the DPP was the chief attorney in the former DPP’s office,” Advocate Motsieloa states in his affidavit.
“The DPP was issued a written warning in this respect on 22 June 2010.”
Adv Motsieloa annexes to his affidavit a letter dated 30 March 2010 addressed to Adv Motinyane by her then supervisor, Lehlanako Mofilikoane, which raises the issue of 77 dockets claimed to have been stuck on her desk for over five years without being issued with prosecutorial directives.
Advocate Mofilikoane subsequently slapped her with a written warning on 22 June 2010 over her alleged failures to prosecute the dockets.
Adv Motsieloa states: “The complaints canvassed in the show cause letter (dated 14 May 2024) deal with inter alia complaints of dishonesty, ineptness and substandard prosecutions experienced by the judiciary when dealing with the DPP.
“It is no secret that the DPP has been reprimanded by High Court judges such as Chief Justice Sakoane (Sakoane), Justice (Moroke) Mokhesi and Justice (‘Maliepollo) Makhetha ranging from mismanagement of the DPP’s office, to the manner in which she conducts herself in court, the reckless disregard for court procedure/decorum and complaints of dishonesty.
“In addition, the Lesotho Mounted Police Service, the Directorate on Corruption and Economic Offences and myself voiced complaints regarding the DPP’s general lack of prosecution directives…”
Representations
Prime Minister Matekane had invited DPP Motinyane on 14 May 2024 to make representations on why he could not advise His Majesty to establish an impeachment tribunal to consider her fitness to remain in office. She was given until 24 May to respond, a deadline she said was unreasonable. Among others, she was accused of failing to prosecute cases and of stifling the work of the police and the Directorate on Corruption and Economic Offences (DCEO) in trying to bring criminals to book. She was also accused of not having disclosed her entanglement in a fraud issue over her South African identity document. She rejected all the allegations.
She had subsequently requested for further particulars from the PM to enable her to formulate her answers comprehensively. That angered Mr Matekane who then accused DPP Motinyane – through another letter dated 17 June 2024 – of playing delaying tactics. The Prime Minister piled more accusations of “incompetence” against Adv Motinyane. She accused her of failing to prosecute Mr Thabane and his wife ‘Maesaiah for the 2017 murder of Mr Thabane’s estranged wife, Lipolelo. She also accused her of maliciously prosecuting Deputy Commissioner of Police (DCP), Paseka Mokete, for allegedly sexually harassing another police officer, Inspector Makatleho Mphetho. DCP Mokete was acquitted of the charges by Senior Resident Magistrate Peter Murenzi. DCP Mokete had been the lead investigator in the Lipolelo case.
Mr Matekane had then sought an engagement between the Public Service Commission and King Letsie III for Adv Motinyane’s suspension pending the completion of the impeachment process.
Interference
However, DPP Motinyane ran to court for intervention. In her Constitutional Court application filed earlier this month, DPP Motinyane accused Deputy Prime Minister, Nthomeng Majara, of instructing her to drop treason and murder charges against politicians Mothetjoa Metsing and Selibe Mochoboroane. This was when Ms Majara still doubled as Minister of Law and Justice before the portfolio was re-assigned to Richard Ramoeletsi in a cabinet reshuffle in November 2023.
She claims Ms Majara ordered her to withdraw charges against Messrs Metsing and Mochoboroane, whose Lesotho Congress for Democracy (LCD) and Movement for Economic Change (MEC) respectively, are coalition partners with Mr Matekane’s ruling Revolution For Prosperity (RFP).
Mr Metsing is listed as political advisor to Mr Matekane by the DPP while Mr Mochoboroane serves as the Minister of Health. Adv Motinyane states her refusal to drop charges against Mr Matekane’s coalition allies is the real reason behind the bid to oust her. She had rejected the directive because it infringed on her office’s constitutionally guaranteed independence. By replacing her, the government wanted to appoint its stooge as DPP who would then protect its allies while going after its enemies, the DPP has charged.
Adv Motsieloa does not fully deny the DPP’s allegation on the withdrawal of charges issue. He instead states Ms Majara had only “suggested” and not “instructed”, her to withdraw charges. He therefore accuses DPP Motinyane of “lying”.
“There is no instruction and/or coercion, but a cordial discussion between the Deputy Prime Minister, Justice Majara, and the DPP to possibly have the charges against the heads of the respective coalition parties (Members of Parliament Metsing and Mochoboroane) withdrawn. The assertion that the DPP was given an instruction and/or was coerced is simply untrue.
“In terms of sections 98(2)(b), 99(2), (4) and (6) [properly constructed] of the Constitution, the Attorney General (I) have the authority to withdraw such charges. It is not alleged that I did so or attempted to do so. For avoidance of doubt, I certainly did not, or orchestrate anything of this nature.”
But therein lies the problem for the government that amplifies how it has bungled its bid to oust the DPP and how it has possibly bolstered her case. Ms Majara has no authority to even “suggest” how the DPP should do her work as that interferes with the constitutionally guaranteed independence of the DPP’s office.
The admission will likely bolster the DPP’s argument that she is being victimised for protecting her office’s independence. It is difficult to see how the government can justify “suggesting” to the DPP that she drops charges against its allies, then embarking on an impeachment process after she turns down the “suggestion”.
Moreover, the government will have to explain why it first mollycoddled the DPP by offering to transfer her on similar benefits to Adv Motsieloa’s own office if she was so incompetent. Why did it not just embark on a process to remove her from office if she was so useless?
New Post
Ms Majara’s successor as Minister of Law and Justice, Mr Ramoeletsi, had written to DPP Motinyane on 26 February 2024 offering her the new post of Special Advisor to the Attorney General (SAAG) on the same benefits and salary of the DPP. DPP Motinyane declined the transfer offer in writing on 28 February 2024. She said her rejection of the transfer was not welcome by Mr Ramoeletsi who then threatened her with impeachment.
Adv Motsieloa refutes these allegations, saying they had negotiated with the DPP to vacate office and she had “agreed”, only to summersault later on. This he says made it difficult to deal with her going forward hence the decision to go for the impeachment route.
“First the DPP indicated she wanted to vacate her office because of stress, anxiety and workload pressure, later that she wanted out because she was ‘frustrated’, then she indicated that she was not willing to vacate the office. Finally, the DPP indicated her willingness to vacate her office subject to receiving the same pecuniary benefits, status and standing.
“We believed we could no longer accommodate the DPP because we were receiving mixed signals. Either we were being set up (for this application) or the DPP was not negotiating in good faith.
“To this end, the Prime Minister had no alternative but to engage the DPP requiring her to answer to the complaints prior to representations being made to the King to appoint an impeachment tribunal. There is simply no other disciplinary mechanism in place because Advocate Motinyane was appointed as DPP, which is a constitutional appointment.
“The Constitution does not envisage a disciplinary procedure other than prescribed in terms of section 141 of the Constitution. The Prime Minister’s letters addressed to the DPP align with the provisions of section 141 of the Constitution, together with legal precedents set by the Court of Appeal. In any event, section 141 of the Constitution does not require the Prime Minister to engage in an overburdensome administrative task or to make findings of guilt or otherwise. It only requires him to weed out seemingly meritless complaints and to decide whether to advise the King to ultimately appoint an impeachment tribunal.
“No decision has been made yet. It should be remembered that only after the appointment of the tribunal will the question of suspension be considered by the King on advice of the Public Service Commission. In addition, the security of tenure of the DPP does not immunise her from removal from office through impeachment proceedings.”
Messrs Matekane and Ramoeletsi, as well as Ms Majara, also deposed to affidavits supporting Adv Motsieloa’s averments.
This matter is yet to be allocated a hearing date as it was not filed as an urgent application. The DPP has, nonetheless, sought in her application the staying of all procedures to remove her from office pending the finalisation of her case on the merits.
Problematic
Adv Motsieloa’s averments are nonetheless problematic. It seems its him who could be lying and not the DPP. When the Lesotho Times first broke the story about the bid to remove the DPP, it was based on correspondence between the DPP and Mr Ramoeletsi. The letters between the two do not prove that the DPP Mottinyane at any stage ever agreed to vacate office. In fact, in one letter, she only acknowledged the meeting she had had with Messrs Ramoeletsi and Motsieloa after they had presented her with a letter to sign agreeing to a transfer to Adv Motsieloa’s office.
She explained in her response that she had never agreed to such but had only asked them to put their offer in writing so that there was a document trail. She then rejected the transfer offer and outlined the reasons why she could not agree to be effectively demoted. There is no evidence in the documents in possession of the Lesotho Times that Adv Motinyane ever agreed to be transferred before summersaulting as claimed by Adv Motsieloa.
Also, Adv Motsieloa does not explain why he was scurrying to have Adv Motinyane transferred to become his chief advisor if he knew about her incompetence dating way back to 2008 as he now claims. Which self-respecting Attorney-General would wish to be effectively deputised by a lawyer so “incompetent” as Adv Motinyane? That’s a question Adv Motsieloa would have to answer credibly, if any court is to buy his story.
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