The suspended Director General of the Directorate on Corruption and Economic Offences (DCEO), Advocate Mahlomola Manyokole has elevated matters in the tribunal into his fitness to hold office to the High Court as he challenges the tribunalâ€™s decisions thus far.
Through his lawyer Advocate Tekane Maqakachane, the DCEO boss is seeking the review of decisions made by the tribunal made up of retired Justices Teboho Moiloa who also chairs the panel, Justice Semapo Peete and Her Ladyship Justice Polo Banyane.
In his papers, Manyokole says the tribunal is operating beyond its legal timeframe saying its operating period should be calculated from the date when the tribunal first met to start its work on June 4, 2021 (alternatively, August 2, 2021) and on the termination of eight weeks thereafter, it did not have in law any mandate or function to discharge, hence its continued proceedings without the necessary extension (as prescribed by Legal Notice No 139 of 2020) was and continue to be wrongful, unlawful and invalid.
However, his application was dismissed on November 1, 2021 on the basis that the mandate and authority of the tribunal was not terminated because the tribunal had not yet commenced its work as the eight weeksâ€™ period must be computed from the date the tribunal begins to hear evidence which will inform the findings and recommendations to be submitted to the Prime Minister.
Manyokoleâ€™s contention also centers on the refusal of Moiloa to recuse himself from the chairmanship citing that the latter conflicts himself as he was probed by Manyokole during his tenure at the helm of the anticorruption unit, that the judge had previously been member Webber Newdigate, a firm of legal practitioners, which was being investigated for money laundering by himself as well as the fact that Moiloa and his wife were involved in a corrupt scheme concerning his house which was rented out to the former Chief Justice Nthomeng Majara and for which the former Chief Justice was paying M21, 000 or more in circumstances where the former Chief Justice was entitled to a M4, 000 housing allowance.
â€œMoiloa ought to have recused himself from the tribunal or proceedings of the tribunal in view of the reasonable apprehension by a reasonable person, possessed of the true and correct facts above, that 1st Respondent would be biased against me and would bring a fair mind to bear on the proceeding and the determination of the question investigated,â€ he said.
He also contests that the panel continued with tribunal notwithstanding the invalidity of the Legal Notice No 139 of 2020 arising out of the failure to lay it before the National Assembly as prescribed by Section 27A of the Interpretation (Amendment) Act 1999.
â€œThe decision of the tribunal to continue with the tribunal proceedings notwithstanding the nullity in law of the Legal Notice No 139 of 2020 is illegal and unreasonable, and therefore null and void,â€ he said.
However, the tribunal held that the Legal Notice was an executive act and did not require to be tabled before the National Assembly and dismissed the legal point raised.
But Manyokole contended that the tribunal has not filed or given him the written reasons for the decision.
â€œI aver that the tribunal misdirected itself and irregularly misconstrued the very nature of the Legal Notice No 139 of 2020 and the legal effect nature thereof which require it to be tabled before the National Assembly,â€ he said.
He sought an evaluation on the decision of the tribunal on November 5, 2021 refusing to refer the legal questions to the High Court as requested by the Applicant. He said the requested reference was based on section 4 of the Legal Notice No 139 of 2020 on the assumption of its legal validity, read with section 23 of the Public Inquiries Act 1994.
â€œI aver that the tribunal failed to apply its mind to the totality of questions of law which have been raised and which were requested to be referred to the High Court,â€ he said.
The tribunal on November 10, 2021 dismissed the reference request.
He said the decision is conflicting to the law and illegal and subject of review jurisdiction of the High Court and that the decision is so unreasonable that a different tribunal would have come to a different conclusion on the matter.
He continued that the tribunal wrongfully and unlawfully ignored and failed to apply its mind to the legal attributes of the Legal Notice and gave it a wrong interpretation on the law and therefore misapplied the principles applicable to the legal instruments.
â€œI pray that this Honourable Court be pleased to grant me the prayers as appear more elaborately in the Notice of Motion.
The matter is yet to be debated in court.