Africa-Press – Lesotho. After months of mounting pressure from the high court to reinstate the dismissed army Private Mokitimi Senekane, the Lesotho Defence Force (LDF) has finally relented and agreed to settle through a well-paid out pension, Public Eye can reveal.
The paper has established that in a settlement proposed on Monday this week, the LDF informed high court judge, Justice ‘Mafelile Ralebese, that it was impracticable to reinstate Senekane and promote him like he requested in his application.
Senekane, who has been out of the force for well over 15 years, this paper has learned is also asking for a court order directing the commander to regularise his promotion by elevating him to the rank of Brigadier effective from February 1, 2020.
The rest of his squadmates who until February 2020 held the rank of Private, Lance Corporal and Corporal were all promoted to the rank of Sergeants. Enquiries have further established that three of Senekane’s squadmates presently hold the rank of Brigadier – a rank he is likely to have been elevated to had he not been unlawfully kicked out of the army.
The army, it has emerged, instead only showed its keenness to pay the embattled soldier’s retirement benefits, adding that the settlement would help avoid untoward court processes. When the court reconvenes on October 31, the judge will receive an update on the proposed settlement.
Notwithstanding the suggested deal, Senekane, the paper has further been made to understand, contends that he continues to suffer prejudice at the hands of uncooperative army officials, according to the paper’s findings – he does not trust the army.
He has moved for the LDF to show good faith by settling his salary beginning October 2021 when the Court of Appeal ordered for his reinstatement, and to begin paying his salary going forward until February next year when he is due to retire.
Senekane was sacked from active army service in 2007 and has over the years challenged his dismissal, which he has been describing as unlawful. Finally, the high court last year ruled in his favour and ordered his reinstatement, declaring his discharge unlawful.
In his judgment, Justice Mokhesi said “an order of reinstatement is not competent where the dismissal is invalid and of no force and effect. To speak of an order of reinstatement in that case is a contradiction in terms.
“An invalid dismissal is a nullity. In the eyes of the law an employee whose dismissal is invalid has never been dismissed.
If, in the eyes of the law, that employee has never been dismissed, that means the employee remains in his or her position in the employ of the employer.
The army maintained then that the disagreement between Senekane and the LDF would be solved by the Apex Court when it finally determines the case (October session).
They argued that Justice Mokhesi erred and misdirected himself in holding that the power of the commander to invoke Section 31 of the LDF Act of 1996 in order to discharge is applicable after conviction is made by military courts.
The Appeal Court also dismissed all of the LDF’s contentions in its judgment authored by President of the Court, Dr Kananelo Mosito, and agreed to by Justices Petrus Damaseb and Van der Westhuizen.
The court also disagreed with the LDF’s stance that the commander needs not to invoke Defence Force (Regulations) of 1998 when exercising his power of discharge in terms of Section 321 of the Lesotho Defence Force Act.
In the judgment Justice Mosito continued that “there is no merit in this ground as well because Regulation 2 of the Defence Force (Regular Force) (Discharge) Regulations clearly provides that, having been convicted by a civil court during his service for offences committed before enlistment, a soldier may be discharged from the LDF.
”The judgment also concluded that Justice Mokhesi was correct in concluding that Senekane’s expulsion was of no force and effect in that the lawgiver sought to reign.
But despite the two rulings by the High Court and Court of Appeal, the army refused to reinstate Senekane, hence, the latest application. Among others, Senekane wanted the court to order the commander to take all the necessary steps to ensure that he has full access to his workplace in the army.
Senekane is also asking for an order directing the army chief to pay him the aggregate of his arrear salaries and all benefits dating from January 2008 to date, with interest.
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