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Top prosecutor challenges transfer

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Mohalenyane Phakela

A senior prosecutor at the Maseru Magistrates’ Court, Lehlohonolo Phooko, has petitioned the High Court to reverse his transfer from the Criminal Prosecution Office to the Law Office.

The Ministry of Law and Justice’s outgoing Principal Secretary (PS) Retšelisitsoe Mohale, the Ministry of Law and Justice and Attorney General Rapelang Motsieloa are the first to third respondents respectively in the application.

In his court papers filed last week, Advocate Phooko argues that PS Mohale contravened the law by proceeding to transfer him without affording him a hearing.

“It is my contention that the first respondent (Mohale) dismally failed to comply with the Human Resource and Development Policy Manual,” Adv Phooko states.

He argues that in terms of the manual, a public officer must be given three months’ notice of an impending transfer unless operational requirements dictate an immediate transfer. This was not the case with his transfer, he says.

“The first respondent cannot claim that it was based on operational requirements or any grounds. My transfer was unfair in that it was riddled with and marred by gross irregularities. There can be no doubt therefore, that it was unfair.

“It is my contention that the primary motivation behind my transfer has no basis as this court can readily determine that there had not been any single reason advanced by the first respondent as to what precipitated my transfer.

“I aver that the reason ought to have been clearly articulated and in the absence of same, it is my contention that my transfer was unfair and arbitrary done by the first respondent without any grounds whatsoever. Furthermore, it is well calculated to place me in a position where I would idle for the rest of the day, week, month, year and probably the rest of my life or as long as I shall be placed thereat, regard being had to the fact that I am not being allocated any cases,” Adv Phooko says.

He says that he was first employed as prosecutor in January 2011 and deployed to the Mohale Magistrates’ Court. Three years later, he was transferred to the Maseru Magistrates’ Court before he was promoted to Senior Crown Counsel in November 2016.

At the time the Maseru Prosecution Office was headed by Mohale Lesaoana who was subsequently transferred to the Berea Magistrates’ Court in 2018.

Adv Phooko says he acted as the head of the Maseru Prosecution Office from February to April 2018. However, to his utter dismay, another prosecutor, Tsietsi Hlaele, was appointed as substantive head in that position. Nonetheless, he continued to deputise Adv Hlaele until June this year when the latter reached retirement age. He says he then acted as Head of the Maseru Prosecution Office until he was transferred by PS Mohale on 6 August 2022.

He states that he had a legitimate expectation to occupy the position on a substantive basis as promised by the Director of Public Prosecutions (DPP), Hlalefang Motinyane.

“I was called by the Director of Public Prosecutions and during our discussion, she indicated that she was pleased with my work and most importantly that, as the only long-serving Senior Crown Counsel at the Maseru Prosecution Office, I should continue to head the office pending a formal letter confirming me as the Head of Maseru Prosecution Office.

“I verily believed what the DPP informed me, moreso when she had no reason to mislead me and most importantly, when the assurance emanated from the head of the department with the necessary authority.

“As a Senior Crown Counsel who had been in a managerial position as Head of Maseru Prosecution Office, I had a legitimate expectation that I would continue to be in charge and further that I would be afforded a hearing before being transferred from that office,” Adv Phooko states.

He also alleges that upon receiving the transfer letter, he tried to secure a meeting with DPP Motinyane but it never materialised due to the latter’s busy schedule.

Adv Phooko further argues that he has more than 30 criminal cases pending before the Maseru Magistrates’ Court and other administrative duties which he cannot perform due to his transfer. He cannot access the dockets as his office has now been occupied by another prosecutor, he states.

“I was allocating cases to prosecutors subordinate to me. As the one in charge of the Maseru Prosecution Office, I would advise the prosecutors how to frame and prefer appropriate charges to suspects, especially in complex matters while the high profile cases would be handled by myself.

“I was prosecuting cases on a daily basis and at times, I would prosecute two trials per day. I would deal authoritatively with grievances stemming from legal practitioners or magistrates about the prosecutors subordinate to me. I would also deal with prosecutors subordinate to me for any misconduct such as arriving late, knocking off early, not coming to work and not assisting the public in general. On the contrary, at Law Office I idle every day,” Adv Phooko states.