Mareka & 22 Others V Commander of the LDF & Others (C of A (CIV) No. 52 of 2016)

• Author: A. Meerkotter,M. Lepeli
• Published date: 01 January 2017
• Pages: 137-153
• DOI: 10.10520/EJC-bf5b30cd1
• Record Number: lesotho_v25_n1_a8
• Date: 01 January 2017

PUBLIC LAW

Meerkotter, A. ⃰ & Lepeli M.**

MAREKA AND 22 OTHERS V COMMANDER OF THE LESOTHO

DEFENCE FORCE AND OTHERS (C of A (CIV) No. 52/2016)

INTRODUCTION

In April 2016, the Lesotho Court of Appeal, per Farlam AP, handed

down judgment in the case of Mareka and 22 Others v Commander of

the Lesotho Defence Force and 7 Others. The decision followed the

October 2015 High Court decision by Makara J.

1

This article

discusses the Court of Appeal judgment and the extent to which it

represents a missed opportunity to address the particular

vulnerabilities faced by military detainees in accessing justice.

FACTUAL BACKGROUND OF THE CASE

The appellants in the case are all members of the Lesotho Defence

Force (LDF) who to date face mutiny charges under the Lesotho

Defence Force Act of 1996 (LDF Act). The appellants (the applicants

in the High Court) were arrested between May and June 2015,

shortly before the murder of Lt Gen Mahao, and most remain in

custody. On 3 July 2015, the SADC Extraordinary Double Troika

Summit, held in Pretoria, South Africa, took the decision to

establish an ―independent commission of inquiry‖ to, among other

things, investigate the death of Lieutenant General Mahao and

―review the investigations into the alleged mutiny plot‖.

2

The

Terms of Reference (TORs) of the Commission of Inquiry were also

⃰B.Proc, LLB, M.Soc, Litigation Director, Southern Africa Litigation Centre.

1

CIV/APN/322/2015.

2

Para 3(1)(a) of Legal Notice 88 of 2015.

carefully framed to incorporate the different versions on the

appointment of the commanders of the LDF in 2014 and 2015

respectively.

The appellants were charged with mutiny in terms of section

48(1)(a) of the LDF Act read with sections 48(2) and 103(1) of the

Lesotho Defence Force Act of 1996.

3

The particulars of the offence in

the charge sheet indicates that the charges relate to acts that were

allegedly committed between September 2014 and May 2015 to

arrest, detain and remove from service certain officers of the LDF

and later to kill such officers. Paragraph two of the charge sheet

dated 7 August 2015, states that ―such officers were perceived as

being supportive of Lt Gen Kamoli, who had not stood down as

Commander of the LDF after the then Brigadier Mahao had been

gazetted as Commander on 29 August 2014‖. On 13 August 2015,

the Minister of Defence and National Security issued a convening

order subject to section 92(1) of the LDF Act establishing a court -

martial to try the appellants. It was in the light of this convening

order that the appellants sought the court‘s intervention in the

Mareka case.

THE PROCEEDINGS BEFORE THE HIGH COURT

The High Court became seized with mainly two issues. The first

issue was whether the decision to establish the court-martial and

the convening order was unlawful, arbitrary and unreasonable and

should be set aside on review. The argument of the applicants was

that it was unreasonable to convene the court-martial when a

parallel commission of inquiry was taking place which had as its

mandate to objectively determine the veracity of the charges against

the applicants.

3

Act No 4 of 1996.

138

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