Opposition hits back at Matekane 

…maintains boycott of national reforms 

Mohloai Mpesi 

THE opposition has rejected the government’s reliance on pending litigation as a justification for non-compliance with court orders, saying a court order remains binding unless it is stayed, varied, rescinded or set aside by a competent court. 

The position is contained in a 16-page response by Leader of the Opposition, Mathibeli Mokhothu, to Prime Minister Sam Matekane’s letter appealing to opposition parties to return to the national reforms consultation table. 

Mr Mokhothu’s letter, dated 10 August 2026, acknowledged Mr Matekane’s reaffirmation of the government’s commitment to the Constitution, the rule of law, separation of powers and judicial independence, but said those assurances had failed to address the opposition’s fundamental concern over the implementation of judicial decisions. 

“The opposition has carefully considered your appeal that we return to the reforms’ consultation table. We remain committed to the reforms process; however, our position has not changed,” Mr Mokhothu wrote. 

The opposition said its concern was not whether particular individuals were ultimately found guilty of contempt of court, but whether the government and public institutions gave practical effect to binding judicial decisions. 

“Our concern is different and goes to the conduct of the government and public institutions in the period following the issuance of binding judicial decisions,” the letter states. 

“The question that the opposition is compelled to ask is this: Why should compliance with binding decisions of the courts require affected citizens to return to court, institute contempt proceedings and obtain further orders before the government or public institutions give practical effect to judgments already issued?” 

The opposition argued that contempt proceedings were an enforcement mechanism and did not create the original obligation to obey a court order. 

“Our concern is that a court order is binding from the moment it takes effect and is not merely a matter for compliance after a further contempt order has been obtained. 

“The constitutional obligation of the Executive is therefore not to wait for an aggrieved person to institute contempt proceedings before taking steps to comply. The obligation is to comply in the first instance. Contempt proceedings are an enforcement mechanism and are not the source of the original obligation to obey the judgment.” 

The opposition nevertheless acknowledged that the government could seek clarification, variation, suspension or appellate relief where the meaning or implementation of an order genuinely required clarification. 

It said what was constitutionally troubling was for a public institution to decline to implement a binding judicial decision while waiting for further litigation or enforcement proceedings. 

“The fact that some matters may be disputed, some judgments may have been complied with and some proceedings may remain pending does not remove the need for the government to confront the broader institutional concern,” the letter states. 

“On the contrary, the number of instances in which affected persons have found it necessary to seek judicial enforcement of their rights and the repeated emergence of disputes concerning implementation should cause all of us to pause and ask whether our system of constitutional compliance is functioning as it should.” 

Adv Polaki 

A major part of the opposition’s argument concerned Ombudsman, Advocate Tlotliso Polaki, whose case it said illustrated its concerns over compliance with court orders. 

The Constitutional Court had, on 29 June 2026, issued an order restraining the Prime Minister from directly or indirectly frustrating, impeding or interfering with the Office of the Ombudsman or the exercise of Adv Polaki’s functions pending the final determination of her application. 

“The order does not merely contain a general declaration of rights. It contains a specific and operative interdict directed at the First Respondent (Matekane),” the letter states. 

“It expressly restrains conduct which would frustrate, impede or interfere with the Office of the Ombudsman or with the exercise of Adv Polaki’s functions as Ombudsman.” 

The opposition said Adv Polaki was subsequently prevented from accessing her office and had instituted contempt proceedings against Mr Matekane. 

It stressed that it was not asking Mr Matekane or political actors to determine whether contempt had occurred, saying that was a matter for the courts. 

However, it questioned why an office-holder protected by an express court order had to return to court to secure compliance with that order. 

“The issue is not that contempt proceedings are pending. The issue is why compliance with an express constitutional court order had to be pursued through contempt proceedings in the first place,” Mr Mokhothu wrote. 

The opposition said the issue was particularly important because the Ombudsman was a constitutional accountability institution. 

“Interference with the functioning of such an institution raises issues extending beyond the personal circumstances of the office-holder. It implicates the constitutional independence, institutional integrity and effectiveness of an accountability institution.” 

DPP Motinyane 

The opposition also challenged the government’s position regarding suspended Director of Public Prosecutions, Advocate Hlalefang Motinyane. 

Mr Matekane’s response had argued that the Constitutional Court had not expressly ordered DPP Motinyane’s reinstatement and that it would therefore be incorrect to claim the government was in contempt of an order directing her reinstatement. 

The opposition argued that the Constitutional Court’s declaration that her suspension was unlawful had practical consequences. 

“If, following the judgment, the person whose suspension was declared unlawful continued to be prevented from accessing her office and from performing the functions of the office, the opposition is entitled to ask whether the substance and constitutional effect of the judgment were respected.” 

Adv Motinyane’s first suspension had been challenged by the Law Society of Lesotho and the Constitutional Court had later declared the suspension unlawful. She was subsequently suspended again through a legal notice. 

RSL and NSS 

The opposition further raised the case involving former Revenue Services Lesotho Commissioner General, Adv ‘Mathabo Mokoko. 

It said the government’s attempt to characterise RSL as an entity separate from the government did not resolve the constitutional concern because RSL was a public statutory institution performing functions of the State. 

The letter also referred to Labour Court proceedings arising from the implementation of orders protecting Adv Mokoko. 

The Labour Court had previously issued an interim order restraining RSL and its board from dismissing Adv Mokoko pending the outcome of her case. In December 2025, the court had found the RSL board in contempt and ordered her reinstatement pending finalisation of the matter. 

The opposition also raised the case involving National Security Service officers, saying that even where the government disputed the precise remedy flowing from a judgment, the authority of the Court of Appeal still had to be respected. 

“A judgment of the highest appellate court cannot remain indefinitely in a state of administrative negotiation. The Constitution requires that its authority be respected and its legal consequences addressed,” Mr Mokhothu wrote. 

‘Pending litigation cannot justify non-compliance’ 

The opposition also challenged the government’s reliance on pending proceedings and the doctrine of sub judice (pending before court). 

“The opposition wishes to make this point particularly clear. The reference to the doctrine of sub judice does not answer our concern. 

“Where a matter is pending before the courts, the opposition respects the judicial process and does not seek to interfere with it. But the existence of pending proceedings does not, by itself, suspend an existing court order. Unless an order has been stayed, varied, rescinded or set aside by a competent court, it remains binding. 

“The government cannot therefore rely upon the mere pendency of litigation as a reason for withholding compliance with an existing judicial determination.” 

The Opposition said repeatedly requiring citizens to return to court shifted the constitutional burden from the State to individuals who had to incur additional legal costs and endure further delays. 

It consequently called for a government-wide audit of outstanding judgments and orders against the government, ministries, departments, agencies and statutory public institutions. 

It wanted the government to identify every outstanding order, the institution responsible for implementation, the steps required and the current compliance status. 

It further wanted all subsisting orders that had not been stayed, varied or set aside to be implemented immediately and for a central mechanism to be established to monitor compliance with court judgments. 

Reforms boycott remains 

Despite Mr Matekane’s appeal, the opposition said it would not resume participation in the reforms process until it was satisfied that binding judicial decisions were being respected and implemented. 

“Our suspension of participation is consequently not a rejection of national reforms. It is a principled demand that the reforms process be anchored in the constitutional values it seeks to strengthen,” the letter stated. 

The opposition said compliance with court orders had to precede and underpin meaningful constitutional reform. 

“The opposition therefore firmly maintains its position that compliance with binding judicial decisions must precede and underpin meaningful constitutional reform. 

“We remain ready to engage constructively with the government and all stakeholders on the national reforms’ agenda. However, such engagement must take place within a constitutional order in which court decisions are respected not merely in principle or in words, but in practice.” 

The opposition said it would reconsider its suspension once the government took “immediate, concrete and demonstrable steps” to secure compliance with outstanding court orders. 

“It is about whether a judgment of the courts means what it says. It is about whether a citizen who obtains an order against the State can expect the State to comply without having to return repeatedly to court. 

“And, most importantly, it is about whether the institutions of the State understand that the executive is subject to the Constitution and the law in precisely the same way as every other person and institution in the Kingdom.” 

He said the opposition would resume participation in the reforms process once the government restored confidence in its commitment to constitutionalism, the rule of law and compliance with binding judicial decisions. 

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