….as court condemns the NSS for seizing their phones
…BNP leader immediately demands M5million from NSS for defamation
Moorosi Tsiane
MACHESETSA Mofomobe has demanded M5 million from the Director General of the National Security Service (NSS), Pheello Ralenkoane, for defamation after the latter accused the Basotho National Party (BNP) leader of killing journalist, Ralikonelo Joki.
Mr Mofomobe’s lawyer, Christopher Lephuthing, this week wrote to Attorney General, Rapelang Motsieloa, demanding the M5 million as compensation for defamation against his client. The letter was copied to Mr Ralenkoane.
The demand followed Mr Mofomobe and Democratic Congress (DC) youth league president, Moeketsi Shale’s, Constitutional Court victory against the NSS.
They had gone to court to challenge the constitutionality of Section 26 of the National Security Service (NSS) Act of 1998, which the NSS had used in trying to seize their mobile phones as part of its investigations into the alleged criminality of the two politicians.
The constitutional case was presided over by Chief Justice Sakoane Sakoane alongside fellow High Court Judges, Fumane Khabo and Moneuoa Kopo, a fortnight ago.
The two politicians had run to the Constitutional Court after the NSS obtained a search and seizure warrant from the Office of the Prime Minister on 16 May 2023 to confiscate their mobile phones.
This after Mr Ralenkoane had written to Prime Minister and Minister of Defence and National Security, Sam Matekane, to authrotise the warrant. The warrant was subsequently issued and signed by Minister in the Prime Minister’s Office, Limpho Tau. Mr Mofomobe had refused to surrender his phones while Mr Shale handed over his to the NSS.
According to Mr Ralenkoane, the duo was suspected of involvement in Mr Joki’s murder in addition to illegally siphoning information from the NSS. Mr Mofomobe was further accused of money laundering.
The Constitutional Court ruled in the two politicians’ favour this week.
Justice Sakoane, who authored the judgement, stated that the NSS had no business in conducting criminal investigations. That was the responsibility of the police. Only the police could seek a judicial warrant to facilitate their investigations. The “executive warrant” sought by the NSS from Mr Matekane’s offices was illegal.
Adv Lephuthing had argued on 5 June 2023 that the search warrant was unlawful. It was signed by an unauthorised person, Mr Tau, whereas the law was clear that only Mr Matekane as the Minister of Defence and National Security was entitled to do so and could not delegate such powers.
Mr Shale’s lawyer, Tembo Lesupi, had concurred with Adv Lephuthing, adding his client’s warrant was vague in that it did not state which mobile phone was used in the alleged criminality and which NSS officers were feeding information to Mr Shale. It could therefore not stand legal scrutiny.
State counsel, Letsie Moshoeshoe, had counter-argued that the warrants had been issued by Minister Tau as the designated officer of the prime minister. They were thus lawful. He said the NSS had invoked section 26 of the NSS Act, which legally empowered it to conduct such seizure and searches of cell phones.
However, the three judges unequivocally rejected that argument. They declared Section 26 (2) of the NSS Act No.11 of 1998 as unconstitutional. They ruled the said warrants to seize Mr Mofomobe and Shale’s mobile phones violated their rights to privacy and freedom.
Justice Sakoane, who authored the judgment, said there were no safeguards to guard against the abuse of power to issue warrants as per Section 26 of the NSS Act.
“There are no safeguards to guard against abuse of the power to issue warrants. This being a process presided over by a Minister without external independent supervision.
“The procedure of issuance of warrants under section 26(2) lacks the necessary safeguards to provide adequate and effective guarantees against arbitrariness and the risk of abuse. For this reason, the Section 26(2) procedure is declared unconstitutional.”
Justice Sakoane also agreed that Minister Tau was not designated to perform the section 26 statutory functions. He, therefore, lacked authority to issue the warrants.
“I find that Minister Tau was not designated. It follows that on this ground alone, the issuance of the warrants is invalid, null and void
“The warrants did not tell the applicants what offences they are suspected to have committed as to authorise seizure and search of their cell phones. They only got to know them (offences) when the Crown filed its opposition to their applications for relief in court. It emerged from the Crown’s papers that they are suspects in crimes of possession of classified information, murder and money laundering.
“The crimes of murder and money-laundering are not national security offences. Their investigation is outside the constitutional mandate of the NSS. Furthermore, seizure and search of property of persons suspected of committing these offences is by judicially authorized warrants.
“The crime of possession of classified material/information by persons who are not members of NSS is found nowhere in the NSS Act. What is found under section 39(b) is persuading a member to omit to carry out his duty or to do any act in conflict with his duty. This is understandably so because unlike members, non-members have no lifelong secrecy obligations.”
Justice Sakoane also ruled that Mr Ralenkoane had failed to disclose the nature and level of classified material allegedly possessed by Messrs Mofomobe and Shale to justify the search warrants. He had also failed to amplify any basis of his allegations that they were involved in crime.
“It is only in the answering affidavits that the nature and contents of the communications between Mofomobe and Pitso (Mofomobe’s alleged girlfriend working in the NSS) are disclosed. This has been done by annexing a print-out of WhatsApp messages.
“No effort is made in the answering affidavit to direct the court to specific messages that indicate the classified material/information and the nature of damage to national security caused by its disclosure.
“In my respectful opinion, in order for the Minister to properly discharge his functions, the Director General must take him in his confidence by disclosing all relevant and necessary details and sources of the ‘credible information’ in his possession. This will enable the Minister to determine whether the information sought from the cell phones is indeed classified and likely to be of substantial value in assisting the NSS to discharge its functions and also to be satisfied that there are no other reasonable means of obtaining it.
“As regards the investigation of murder, the NSS’s application was an overreach of its statutory functions of protecting national security. Murder is a crime whose investigation is the business of the police service.
“The application (of Messrs Mofomobe and Shale) is granted, It is declared that; Section 26 (2) of the NSS Act No.11 of 1998 is unconstitutional as the said warrants to seize Mr Mofomobe and Shale’s mobile phones …..violates their right to privacy and freedom from arbitrary seizure of property and is hereby declared unconstitutional and the DG-NSS is directed to return forthwith Mr Shale’s cell phones and to delete all the information copied from the cell phones,” ruled Justice Sakoane.
Basking from the court victory, Mr Mofomobe immediately dispatched a letter of demand to Adv Motsieloa, the Attorney General, alleging that he had been defamed by Messrs Ralenkoane and Tau and demanding M5 million in compensation.
Mr Mofomobe, through his lawyer Adv Lephuthing, accuses Mr Ralenkoane of triggering the “executive warrant” for political reasons and to cast him in bad light by accusing him of killing Mr Joki and involvement in money laundering.
“We have noted with dismay that the Director General — National Security Service (NSS) authorized the ‘Memo’ referenced [SF.2/9/2] to the Minister of Defence on 16 May 2023. The said memo triggered the executive warrant which Minister Tau signed purporting to be the Minister of Defence for political manipulation (sic) of supporting the view that our client is involved in money laundering and murder of the late Ralikonelo Joki.
“The Memo contains defamatory statements of Mr Ralenkoane who purported to investigate the cases of murder and money laundering. The memo is replete with irresponsible illusions of the Director-General which he conveyed to the Prime Minister as ‘credible information’ that our client is a murderer and is involved in money laundering. This nonsensical utterance that our client is a murderer was given some legitimacy by Minister Tau whose conduct in signing the executive warrant had been found illegal by the High Court,” said the letter.
Adv Lephuthing further said Mr Tau and Mr Ralenkoane had therefore scandalized his client.
“…He (Mr Tau) deliberately and recklessly sheltered behind horse trading, stratagem, cloak and dagger approach of Director General —NSS to scandalize our client (Mofomobe).
“The Commissioner of Police had made a public announcement at the pass out ceremony at Police Training College (last Friday) that the suspects in the murder of Joki have been identified. He (Molibeli) effectively discounted the possibility of the participation of our client in the conspiracy to murder Joki, meantime the radio stations and print media had taken the broader view of the defamatory statements to display our client as a suspect in the murder….”
Mr Ralenkoane’s “offensive statements” had severely compromised the integrity of Mr Mofomobe.
The BNP leader thus demands “M5 million as damages for defamation of character and the amount must be paid within 30 days of the service of the letter” failing which he will go to court.