…after ConCourt throws out his wife’s application
Moorosi Tsiane
BASOTHO Covenant Movement (BCM) leader Reverend Tšepo Lipholo’s lawyer, Advocate Fusi Sehapi, says he will stop at nothing to seek justice for his client.
This follows the Constitutional Court’s dismissal of a bizarre application by Dr Lipholo’s wife, ‘Mathapelo Lipholo, for an order to restrain the governments of Lesotho and South Africa from arresting her husband or subjecting him to any form of torture or rights violations, pending the finalisation of the so-called Basutoland restoration petition before the United Nations General Assembly (UNGA). Dr Lipholo had launched the petition as part of his efforts to reclaim Lesotho’s land he claims was stolen by South Africa during the colonial era.
Ms Lipholo also wanted the court to compel the United Nations Security Council (UNSC) to provide personal security for her and Dr Lipholo until the matter before the UNGA was resolved.
The application was heard yesterday (Wednesday) by Chief Justice Sakoane Sakoane, sitting with Justices Molefi Makara and Mabatšoeneng Hlaele.
Adv Sehapi appeared alongside Adv Borenahabokhethe Sekonyela for Ms Lipholo, while Advocate Letsie Moshoeshoe represented the Crown. The other respondents who included the South African government and the United Nations Security Council were not represented.
Adv Moshoeshoe argued that the Constitutional Court lacked jurisdiction to entertain the matter, as the reliefs sought extended beyond Lesotho’s legal authority.
The court agreed to hear the issue of jurisdiction as a preliminary matter, with Adv Moshoeshoe presenting his arguments first. He contended that Lesotho’s courts had no legal basis to interdict sovereign states or dictate their actions.
“The Constitutional Court of Lesotho has authority to interpret and enforce the Constitution and protect fundamental rights under Chapter II. However, the applicants have failed to provide credible evidence that Dr Lipholo’s constitutional rights are under actual or imminent threat,” argued Adv Moshoeshoe.
“This Court does not have jurisdiction over the Republic of South Africa or its government. Sovereign immunity and international law principles prevent domestic courts from issuing binding orders on another sovereign state.”
On the matter of security, Adv Moshoeshoe submitted that the Court was being asked to overreach by interfering in matters of international policy:
“This Court cannot direct the UNSC to provide personal security for individuals, including Dr Lipholo and his wife. The UNGA is not a judicial body and lacks authority to stop or suspend enforcement actions by states.”
In response, Adv Sekonyela argued that the case was exceptional and deserved a unique legal approach.
“This is a unique matter where the life of a citizen is allegedly threatened by his own country in concert with a foreign state. The South African police have allegedly operated within Lesotho’s jurisdiction.”
The panel of judges questioned Adv Sekonyela on whether Lesotho courts have jurisdiction over South Africa and international organisations, and why the matter was not brought before an international tribunal instead.
Adv Sehapi asserted that local remedies had to be exhausted before approaching international courts:
“We cannot go to international courts before first approaching the local courts, hence we began here.”
He also argued that the South African government had been served with the court papers and its failure to oppose the application amounted to tacit consent, which he claimed gave the local courts jurisdiction.
However, when pressed by the panel on how they intended to enforce any interdict against South Africa, Adv Sehapi conceded that such an order could not be implemented. He then suggested that the order be territorial in nature.
Justice Makara advised him to consider withdrawing and rephrasing the application:
“Given your pleadings and the nature of the reliefs sought, considering how domestic and international law interact, wouldn’t it be strategic to tactfully withdraw and reconfigure the prayers so the court may consider a more viable application?”
After a short recess, Adv Sehapi informed the court that he was taking Justice Makara’s advice and would abandon the three prayers in the application.
These included the request for the United Nations Security Council to provide personal security to Dr Lipholo and his wife; an interdict against the Lesotho and South African governments from arresting Dr Lipholo or any person seeking remedy before the United Nations General Aseembly; and a stay of South Africa’s consideration to grant Lesotho citizens free movement or annex Lesotho as its 10th province.
Adv Sehapi also sought to amend the prayers by removing South Africa and leaving only Lesotho as a respondent.
However, Adv Moshoeshoe objected.
“Prayer two will still prejudice us. Their argument has consistently involved both Lesotho and South Africa. The only proper course is for the court to make a ruling based on the arguments already presented.”
The bench agreed with Adv Moshoeshoe, noting that Adv Sehapi could not amend the application orally from the bar. A formal amendment application would be required.
The court then proceeded to deliver judgment.
“In light of the arguments presented, the point on jurisdiction is upheld, and the application is dismissed. Written reasons will be provided within a month,” Chief Justice Sakoane said.
Speaking outside the courtroom, Advocates Sehapi and Sekonyela told BCM supporters that they intended to appeal the ruling once the written judgment was available.
“We will appeal and, if necessary, escalate the matter to international courts. We couldn’t bypass local remedies. Even international courts would expect us to have started here,” said Adv Sehapi.
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