Lawyers dissect ‘flawed’ First Lady’s bail
This undated photo shows First Lady Maesaiah Thabane, adresses people in Lesotho???s capital Maseru. Police say Thabane is set to be charged with murder in connection with the 2017 killing of the prime minister's former wife. Thabane, who fled the country on Jan. 10, 2020 to escape arrest, returned to the small southern African kingdom Tuesday Feb. 4 2020 and handed herself to police in the capital. (AP Photo/Ezekiel Morake)
RELEBOHILE TSOAMOTSE
MASERU – Controversy surrounding First Lady ‘Maesaiah Thabane’s February 5 bail following a murder charge has attracted heavy criticism from legal practitioners, with many suggesting proper procedure was not followed to facilitate her to evade incarceration while awaiting trial.
The lawyers this reporter spoke to insist the First Lady should not have been granted bail without the court determining the matter having heard opposing arguments from the prosecution, as it transpired.
They submit the parties should have been allowed to argue the bail application following the notice of intention to oppose as submitted by the office of the Director of Public Prosecutions (DDP).
A fortnight ago controversial Acting Chief Justice, ’Maseforo Mahase, granted the First Lady M1 000, only a few hours after she (‘Maesaiah) was remanded in custody by Magistrate Nthabiseng Moopisa.
The lawyers said despite bail applications being urgent in nature, the procedure has always been that they are filed any day before Thursday noon to be dealt with the following Monday by the judge on call. However, Thabane’s bail was filed in the afternoon of Wednesday, February 5 and heard the same day.
Despite not being the judge on call, Justice Mahase allocated the bail application to herself and proceeded to hear the matter notwithstanding the DPP’s request that answering affidavits and heads of arguments be filed.
Justice Mahase is reported to have ruled that she could only be able to determine the bail application on the day (Wednesday) as she would be attending the swearing in ceremony of members of the National Reforms Authority (NRA) on Thursday – the date that was proposed by the DPP.
Justice Mahase granted Thabane bail and asked the parties to return to court the following Friday for arguments.
It later emerged that despite being released from correctional service after working hours on February 5, ’Maesaiah’s bail deposit was made on February 6 the Lesotho Correctional Services (LCS) official, however, said there was nothing wrong with ’Maesaiah’s release after hours.
The lawyers assert that it was irregular for Justice Mahase to have not allowed the DPP to file.
Advocate Letuka Molati said due to the urgency of bail petitions High Court rules require that a bail petition be served within 48 hours and that if the DPP shows intention to oppose, they can be given longer than a week to file opposition papers.
Molati said in a similar case involving incarcerated former army commander, Lieutenant General Tlali Kamoli, the DPP was given more than enough time to file opposing papers.
However, he said, parties can agree on a shorter period to serve papers so that they can appear before a judge.
Police spokesperson Superintendent Mpiti Mopeli, on the other hand, said Thabane was released after hours because they were bound by a court order to release her. Mopeli said despite the time of the day, when an order has been made that determines the release of a detainee the institution has to comply.
Advocate Bolelang Mokoatle explained that as a practice, bail petitions were filed before Thursday midday to be decided by the judge on call on a Monday. Mokoatle said bail applications were granted as long as there was no opposition from the DPP, but that once there is an intention to oppose, a date of hearing should be secured.
She said the DPP is dominus litis (has powers such as a decision to allow or decline granting of bail as well as withdrawing charges against accused persons).
Mokoatle said because of those vested powers, the courts are compelled to also consider the DPP’s stance on any issues brought before them.
However, Advocate Napo Mafaesa argued that bail applications were informal by nature, saying judges can decide their own way of dealing with them. Mafaesa said with a bail petition, inadmissible evidence like hearsay can be admissible hence it differed with normal applications.
Mafaesa maintains there was nothing wrong with arguing ’Maesaiah’s bail without the benefit of papers being filed because “bail applications are informal by nature and the judge can deal with them anyhow.”
He added, “if the Crown was served and appeared, it was up to the judge to decide on how to handle the hearing.”
The officer commanding Legal Services in the Lesotho Mounted Police Service (LMPS), Advocate Mamello Ntsane, says they were not allowed to oppose Thabane’s petition but that ACJ ruled against their request that the case be heard the following day.
In an affidavit filed in the Appeal Court to support an application by two nephews and a friend of the woman ’Maesaiah is accused of killing – Lipolelo Thabane – in an ambush near the deceased’s home at Ha ’Masana in 2017. Ntsane revealed in the affidavit that all their attempts to place affidavits and heads of argument to oppose Thabane’s bail failed.
“…On the 5th day of February 2020, the investigating officers of the case of murder in relation to Lipolelo Thabane were taking the suspect namely, ’Maesaiah Thabane, to the magistrate court for first remand, Deputy Commissioner Paseka Mokete as the head of the said investigation team informed me when they were taking the suspect to court. I then proceeded to the High Court to find out whether there was a bail application filed as yet.
“I must state that after completion of the remand process during the lunch hour while I was still within the premises of the High Court, I saw Advocate Masoeu from Setlojoane Chambers heading to the High Court Criminal Registry with one Sepiriti who was carrying a bulk of papers in his hands.
“After he left the criminal registry I went to check and I found that a bail application petition had been filed on behalf of one ’Maesaiah Thabane per CRI/APN/ 0074/2020. However, it bore no date on which it was going to be moved before court,” Ntsane said.
Upon realization that the bail petition was filed on behalf of Thabane, Ntsane says she informed one senior Crown Counsel Letsie, from the office of the DPP, that the bail has been filed and therefore he should be ready to oppose it. Ntsane further stated that Letsie replied that he was aware and was already preparing a notice of intention to oppose.
She continued: “Letsie replied that he is aware and he is preparing a notice of intention to oppose and will come to court immediately thereafter. I must clarify that from the court papers the service was affected to the office of the DPP at 14:05 hrs. Senior Crown Counsel Letsie arrived with Advocate Thaba on or around 15:15 hrs at the High Court with the notice of intention to oppose and served it to Advocate Setlojoane who instructed one Sepiriti to receive the process.”
Ntsane further states: “I further aver that we then appeared before Mahase ACJ in chambers where upon arrival she intimated to the counsel that a file had just been given to her and she will just go through it fast so that they proceed with the matter. After reading the file she asked Advocate Setlojoane if he would like the matter to proceed that day.
Advocate Setlojoane confirmed that he is the one who handed her over to the police. Then she asked Advocate Thaba for respondent whether he can say anything. Advocate Thaba made it clear that the allegations of Advocate Setlojoane will be confirmed after consultations with the investigators.
“He then went on to say the application is opposed and pleaded with the court to give him an opportunity to consult with the investigating officers for purposes of issuing responding papers to the application: that is to assemble the team of investigators and interview them to find the docket and who can best depose to an answering affidavit. “He also wanted to go through the docket so that he could be in a position to prepare his defense in opposing the application and advise the court accordingly,” Ntsane continued.
Ntsane said Thaba informed ACJ Mahase that he (Thaba) was not the one who drafted the directive hence the need to consult with the investigators and read the docket.
He further pleaded that the bail application be heard the following day because it was already after working hours, regard being had to the prevailing circumstances that it was highly impossible for him to settle answering affidavits and the heads of arguments.
“I must aver that ACJ overruled our submissions and granted bail on the basis that she will not be present on the 6th February to hear the matter as she has to attend the swearing in of the members of the National Reforms Authority (NRA) with two other judges. Secondly, she said the petitioner has to attend her medical checkup at Bloemfontein on the 6th February 2020,” the affidavit reads.
’Maesaiah appeared before Magistrate Thamae Thamae on Tuesday this week and was informed that her case awaits a directive from the DPP and that eight other suspects were expected to be charged with her. The matter was postponed to March 17.
