Another set of suspects seek Justice Hungwe’s recusal
RELEBOHILE TSOAMOTSE
MASERU – Acting High Court Judge, Charles Hungwe has come under heavy criticism for comments he made in a criminal trial involving four police officers charged in relation to Police Constable Mokalekale Khetheng.
The Zimbabwean-born jurist is said to have made remarks such as “it is not normal for accused persons facing serious crimes to be delaying their trials.”
Unhappy with this remark and his general conduct in the course of the trial Khetheng murder suspects have filed a recusal application.
Superintendent Mathibeli Mofolo, Inspector Mabitle Matona and Police Constable (PC) Haleokoe Tasoane alleged that they fear Justice Hungwe is unlikely to bring an impartial mind to their case.
The comment, they say, was made just after the judge entered a not guilty plea for the three of them despite their lawyer’s absence in court.
This they said is an indication that the judge was irritated to the extent of going ahead with the case despite their lawyer’s absence. Advocate Zwelakhe Mda KC, who represents the trio told Judge Hungwe on Wednesday this week that his clients are of the view that he is no longer fit to preside over their trial.
The judge had postponed the trial to Wednesday to start hearing evidence having experienced hiccups in the last two weeks when the matter was up for hearing. First was Advocte Karabo Mohau KC’s withdrawal as counsel for Thabo Ts’ukulu (1st accused), then Adv. Mda did not show up in court forcing the judge to postpone the trial in order to allow for state funded lawyers (pro deo) to be appointed.
The suspects also rejected pro deo counsel last Wednesday but the judge ruled they would represent themselves when the matter continues this Wednesday. The trial started with the prosecution indication that they were ready to call a first witness to the stand but was ruined by defence submissions that a recusal application had been filed.
Adv. Mda told the court he had informed the judge’s clerk about the recusal application and asked to meet the judge in chambers but was told that the judge declined the meeting. He further told the court that an attempt to serve the Director of Public Prosecutions (DPP) with papers was also unsuccessful as they declined to accept the papers.
Adv. Mda said he was left with no option but to deliver the papers at the DPP’s office and announce the application in court as he did to which Judge Hungwe replied: “Go ahead and make your application so that the other side can answer.”
He (Mda) then read the contents of the founding affidavit in which Mofolo raised a number of complaints against the judge. Mofolo took issue with Judge Hungwe’s decision on April 22 to enter a not guilty plea for the suspects despite Adv. Mohau indicating that their lawyer needs to be present before they can plead.
Further, he is unhappy that the court on April 23 ruled it would go ahead with the trial despite presenting their lawyers’ sick note.
Judge Hungwe’s dismissal of their March 12 application to have their detention forms availed has also been cited as an indication that the judge is unlikely to bring an impartial mind to the trial.
They said by dismissing the application, Judge Hungwe has prejudiced them in preparation for their defence.
In the affidavit, the prosecution has also been accused of foul play. Lead prosecutor, Advocate Shaun Abraham is accused of “psychological bullying and harassment.” He is alleged to have uttered words such as “your lawyer is gambling with your lives,” to the suspects on April 27 when the lawyer was absent in court.
The judge has directed the defence to respond to the papers for the matter to be heard on Monday and judgment to be delivered on Tuesday.
This was not the first time accused persons have asked that Judge Hungwe recuse himself from a case for the comments he made.
Suspects in the murder of Lieutanant General Maaparankoe Mahao, namely: Sergeant Motsamai Fako, Corporal Mots`oane Machai and Lance Corporal Ts`itso Ramoholi took issue with the same judge for referring to them as a “gang”.
“Therefore if the court believes the version set out in the earlier petition which was later withdrawn, it will be clear that by his own admission he was part of the gang or unit of military officers who took down the deceased,” Judge Hugwe said in a judgment.
By referring to them as a gang, the soldiers said Justice Hungwe has already made up his mind that they are guilty. They argued that the conclusion and classification of an army operation as a “gang” suggests that Judge had already made a finding that they were acting improperly… Their allegations were however dismissed by both the High Court and the Apex Court.
