…after allegedly defying Constitutional Court order on Ombudsman
…As opposition walks away from reforms process
… citing the gvt’s failure to observe the rule of law
Moorosi Tsiane
PRIME Minister Sam Matekane is facing a possible contempt of court charge after allegedly failing to comply with a Constitutional Court interim order allowing Ombudsman Advocate (Adv) Tlotliso Polaki to remain in office pending the finalization of a court case she has lodged at the courts.
The contempt of court threat comes as the opposition has once again announced it is walking away from the long-stalled reforms process citing the government’s “failure” to obey court orders. The opposition has detailed its concerns in a letter to the regional Southern African Development Community (SADC) which has been chaperoning the reforms process since 2016.
Adv Polaki approached the Constitutional Court on an urgent basis in June, seeking an interim order restraining Mr Matekane from replacing her after the expiry of her contract on 30 June 2026, pending the determination of her constitutional application.
In her main application, she argues that Section 163(1) of the Tenth Amendment to the Constitution Act of 2025 automatically extended the tenures of constitutional office bearers who were in office when it came into effect on 13 August 2025, until Parliament enacts legislation governing the transitional processes for the appointment of their successors.
On 29 June 2026, a three-judge Constitutional Court bench comprising Chief Justice Sakoane Sakoane, Justice Moroke Mokhesi and Justice Mafelile Ralebese granted the interim relief sought by Adv Polaki after her lawyer, Adv Tekane Maqakachane, successfully argued that urgent intervention was necessary to safeguard her constitutional rights.
The order effectively allowed Adv Polaki to remain Ombudsman beyond the expiry of her four-year term until the Constitutional Court determines the substantive constitutional dispute.
However, despite the court order, Adv Polaki was allegedly denied access to her office and stripped of her official bodyguards.
Appearing before the same bench on Tuesday, Adv Maqakachane told the court the interim order remained unimplemented.
“As of now, the order of the court that was issued on the 29th June 2026 still hasn’t been complied with,” he submitted.
He asked the court to direct the Sheriff to personally serve the Prime Minister with the order, saying although it had already been delivered to Mr Matekane’s office and received by his senior secretary, he was prepared to give the premier the benefit of the doubt.
“We urge the court to order the Prime Minister to comply with the court order issued. The Prime Minister was served at his office with his senior secretary receiving the order. However, we want to give him an opportunity to be served in person and he must be ordered to comply within 24 hours.
“For now we only pray the court to issue a directive to the Sheriff to serve him personally because that is what the law requires. I would like to believe that he was not aware of the existence of this order, hence we are asking the court to direct its Sheriff to personally serve him,” Adv Maqakachane said.
His application prompted a lengthy exchange with Chief Justice Sakoane, who questioned why the court should issue another order carrying the same directive.
Justice Sakoane observed that it was the Sheriff’s responsibility to ensure court orders reached the intended recipient.
“If there was anyone preventing him from doing his job, such a person should have been cited in this application for contempt of court,” he said.
Representing the government, Adv Motiea Teele KC, assisted by Adv Letuka Molati, opposed the need for personal service, arguing that as the Prime Minister’s legal representatives they would ensure he was fully informed of every court process.
“I have said to him that, properly speaking, we are here now, or I am here. There is no reason why the issue of personal service of either the order, the application and so forth should be a problem. I will certainly bring to the attention of the Prime Minister any process that he needs to be aware of.
“We represent him, therefore we must inform him of things. It is not an issue of red tape at the State House, whether the process gets to him personally or not. If we are here, we represent him and we will make sure that any matter that he needs to know, he knows about,” Adv Teele said.
Adv Teele also sought more time to respond to the contempt application, saying he had only been served around lunchtime on Monday and had been expected to file opposing papers by 9:30am on Tuesday.
“The time is so short. We need to place facts before the court dealing with the alleged contempt. Those facts may not come from the Prime Minister alone; they may come from other sources as well.
“All that we are asking is that he should file the necessary papers concerning the issue of contempt. We will make him aware of the documentation or whatever it is that explains some of the things that are happening, so that he decides whether he proceeds with the application or not.
“But we have not had enough time to undertake the necessary consultations. We have no problem if it is recorded that we undertook to inform the Prime Minister personally and ensure that he understands what is going on,” Adv Teele said.
The parties eventually agreed that Mr Matekane should be given an opportunity to respond to the contempt application. The court subsequently postponed the matter and directed both sides to file a draft order on Monday.
The hearing then shifted to the substantive constitutional dispute, with Adv Maqakachane spending the remainder of the day defending Adv Polaki’s claim that the Tenth Amendment automatically preserved her tenure.
“The Tenth Amendment to the Constitution Act of 2025 automatically extended the tenure of constitutional office bearers serving when the reforms came into force on 13 August 2025,” he argued.
He submitted that the constitutional reforms created a transitional framework allowing Adv Polaki to remain in office until Parliament enacted legislation required under the new constitutional order.
Quoting Section 163(1), Adv Maqakachane told the court:
“A person who before the coming into operation of this Constitution holds an office established under this Constitution shall continue to hold the office in terms of this Constitution subject to— (a) consistency and conformity with this Constitution; and (b) any amendment or repeal of the legislation applicable to his or her office.”
Adv Polaki was appointed Ombudsman by His Majesty King Letsie III, acting on the advice of former Prime Minister Dr Moeketsi Majoro, on 1 July 2022 for a four-year term that expired on 30 June 2026.
She maintains that the constitutional reforms fundamentally altered her legal position by automatically extending her tenure during the transition period.
The hearing continues today, with Adv Teele expected to present the Prime Minister’s defence.
