Chief Justice Sakoane Sakoane on Monday expressed concern over how the National Security Service (NSS) conducts investigations.
Lawyers of two politicians, Machesetsa Mofomobe and Moeketsi Shale, and those representing the NSS faced-off in court on Monday over a warrant authorising the intelligence body to seize Mofomobe and Shaleâ€™s mobile phones.
The case centres around the NSSâ€™s attempt to seize the two politiciansâ€™ phones. It says the phones are crucial in its investigation of the leaking of classified information.
It is alleged that one NSS intelligence officer, Ithabeleng Pitso, sent the information to Mofomobe.
When NSS officers invaded Mofomobeâ€™s house last month, he refused to release his phones to them, Shale agreed but the duo promptly approached the High Court to challenge the law which gives a minister powers to unilaterally issue a warrant.
The matter was heard on Monday by the High Court sitting as a constitutional court. Chief Justice Sakoane presided over the matter with other two judges, Fumane Khabo and Moneuoa Kopo.
Mofomobe was represented by advocate Christopher Lephuthing while Shale was represented by Advocate Tembo Lesupi. The government was represented by advocate Letsie Moshoeshoe.
Sakoane questioned how the NSS was conducting the investigation.
â€œYou do not go to the person who received information and then later go to the person who sent the information; that is reverse reasoning,â€ he said.
â€œLogically, they are the NSS and they have the technology to investigate and my understanding is that in this Kingdom, they are the only institution that has the technology to access the telephones. Neither Vodacom nor Econet has such technology.
â€œThey are the only ones who can know who is communicating with whom and through the device of section 27, they can intercept and monitor their own officers, not unless surveillance and interception only function to ordinary citizens,â€ he said.
The warrant for the seizure of Mofomobe and Shaleâ€™s phones was motivated by the NSS director general, Pheello Ralenkoane, who wrote to the Minister of Defence, National Security, and Environment on May 16, 2023.
â€œI humbly request that you issue a warrant in terms of section 26 of National Security Act No 11 of 1998 (NSS Act) authorising the service to seize with immediate effect the mobile phones of, and or those in possession of one Machesetsa Mofomobe,â€ Ralenkoane said.
He added: â€œFurther authorising that upon the said seizure, the service conducts an investigation on such phones and make copies of any information contained therein which have a bearing on the function of Service.â€
Advocate Moshoeshoe argued that the request was premised on the fact that Mofomobe was in possession of classified information or material which he received through electronic means without authorisation from an intelligence officer, Ithabeleng Pitso.
â€œThere is further credible information to the effect that Pitso is not the only NSS member who has sent such classified material to Mofomobe, therefore information obtained from the phones shall reveal such other members,â€ Moshoeshoe said.
The director generalâ€™s letter also indicated that there was information that implicated Mofomobe in a criminal activity that might undermine national security.
â€œThis includes money laundering using unregistered money lending business with the help of Pitso and others. Further, they said Mofomobe is implicated in the murder of one Ralikonelo Joki,â€ the letter reads.