Mofomobe and Shale v. The Prime Minister and Others (CONSTITUTIONAL CASE 7 of 2023; CONSTITUTIONAL CASE 9 of 2023) [2023] LSHC 125 (20 June 2023)

Mofomobe and Shale v. The Prime Minister and Others (CONSTITUTIONAL CASE 7 of 2023; CONSTITUTIONAL CASE 9 of 2023) [2023] LSHC 125 (20 June 2023)

Section 26(2) of the National Security Service Act is unconstitutional as it lacks adequate safeguards against abuse, allowing executive warrants without independent oversight. The Minister who issued the warrants was not properly designated. The warrants were vague, overbroad, and failed to specify offences or provide sufficient factual basis. The seizure and search of applicants' cellphones violated their constitutional rights to privacy and freedom from arbitrary seizure of property. Investigation of murder and money laundering is outside the NSS mandate and requires judicially authorized warrants.

Citation
[2023] LSHC 125
Parties
Applicant (cc No. 0007/2023): Machesetsa Mofomobe; Applicant (cc No. 0009/2023): Moeketsi Shale; 1st Respondent: The Prime Minister; 2nd Respondent: Director General of the National Security Service; 3rd Respondent: The Attorney General
Court
High Court
Jurisdiction
Lesotho
Judgment Date
20 June 2023
Case Number
CONSTITUTIONAL CASE 7 of 2023 ; CONSTITUTIONAL CASE 9 of 2023
Procedural Posture
Constitutional Petition (consolidated Applications) / Judgment
Outcome
Petitions allowed. Section 26(2) declared unconstitutional. Warrants declared unconstitutional and invalid.
Legal Topics
Right to Privacy, Search and Seizure, National Security, Judicial Review, Separation of Powers
Source Language
English
Constitutional Law Administrative Law Criminal Law Right to Privacy Search and Seizure National Security Judicial Review Separation of Powers

Case Brief

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Parties

Machesetsa Mofomobe

Applicant (cc No. 0007/2023)

Moeketsi Shale

Applicant (cc No. 0009/2023)

The Prime Minister

1st Respondent

Director General of the National Security Service

2nd Respondent

The Attorney General

3rd Respondent

Procedural Posture

Constitutional Petition (consolidated Applications) / Judgment

Legal Issues

  1. 1 Whether section 26(2) of the National Security Service Act No. 11 of 1998 is unconstitutional for lack of safeguards against abuse of power in authorizing search and seizure warrants.
  2. 2 Whether the warrants issued for seizure and search of applicants' cellphones violated their constitutional rights to privacy and freedom from arbitrary seizure of property.
  3. 3 Whether the Minister who issued the warrants was properly designated and had authority under the Act.

Ratio Decidendi

Section 26(2) of the National Security Service Act is unconstitutional as it lacks adequate safeguards against abuse, allowing executive warrants without independent oversight. The Minister who issued the warrants was not properly designated. The warrants were vague, overbroad, and failed to specify offences or provide sufficient factual basis. The seizure and search of applicants' cellphones violated their constitutional rights to privacy and freedom from arbitrary seizure of property. Investigation of murder and money laundering is outside the NSS mandate and requires judicially authorized warrants.

Court Disposition

Petitions allowed. Section 26(2) declared unconstitutional. Warrants declared unconstitutional and invalid.

Orders

  • Section 26(2) of the National Security Service Act No. 11 of 1998 is declared unconstitutional.
  • The warrants to seize and search the applicants' cellphones are declared unconstitutional and invalid.