Selibe backs CJ in Motinyane’s onslaught

…will Justice Sakoane back-down?

RELEBOHILE TSOAMOTSE

MASERU – Selibe Mochoboroane, who is accused No. 5 in the ongoing drama-filled treason trial, says the Director of Public Prosecutions Advocate (DPP) Hlalefang Motinyane’s allegations made in support of the state’s application for presiding judge Chief Justice Sakoane Sakoane’s recusal are unfounded and untrue. Mochoboroane, who is Minister of Planning and leader of the Movement for Economic Change (MEC), further claims Sakoane’s remarks are being taken out of context.

Justice Sakoane has, since January 10 on the date set for hearing of the case to date, made pronouncements that have shaken the judiciary – leading to an urgent application for his recusal. Among others, Sakoane has made suggestions that the DPP lied under oath and that South African lawyer Advocate Shaun Abrahams be removed as lead prosecutor in the case. Mochoboroane says: “It is not true that the Chief Justice has descended into the arena and that he has fallen out of favour with the Advocate Abrahams as such a conclusion by the deponent is wrong.”

He also states that Justice Sakoane rightly questioned Abrahams’ presence on Monday as no explanation was ever made that he had now returned as the lead prosecutor. “The conclusions that are reached by the deponent are wrong, misconceived and embarrassing to say the very least. The Honourable Chief Justice has not shown any bias in this matter. He has always insisted on progress in this matter. The defence in this matter since the Chief Justice took over this case has filed a number of applications all of which were dismissed.

“At no time has the Crown ever complained that all rulings are favourable to it and, as such, the Chief Justice is biased against the defence. “It is now shocking that when the Chief Justice directs that this matter should proceed, it is the Crown that now employs delaying tactics for the matter not to proceed by frivolous applications for postponement, recusal applications and improper appeals,” Mochoboroane argues.

Chief Justice Sakoane Sakoane’s remarks that Advocate Shaun Abrahams’ no-show in the controversial treason trial last week was because he was making money elsewhere, warrants his recusal, Advocate Motinyane claims. Not only that, but also for his suggestion that he can no longer allow postponements in the trial because some of the suspects have been in detention for the past five years.

Advocate Motinyane makes these claims in an affidavit accompanying her application to have Justice Sakoane recuse himself from further presiding over the trial. The Chief Prosecutor is particularly unhappy with Justice Sakoane’s Monday ruling that Abrahams, who she has engaged to lead prosecution in several high profile cases, that include the treason trial, cannot continue to lead prosecution in the matter. The judge made this ruling after establishing that the DPP lied under oath when providing reasons for Abrahams’ failure to appear in court on set trial dates that began on January 10.

Motinyane’s office sought a postponement and reasoned Advocate Abrahams would be unavailable for two weeks. However, Abrahams was in court on Monday this week and indicated he was leading the prosecution. This was despite the fact that Advocate ’Naki Nku had been announced as the lead prosecutor in the absence of Abrahams last week. Abrahams’ presence before court on Monday prompted Justice Sakoane to hold an inquiry in terms of the Speedy Court Trials Act.

The judge said Motinyane could have lied under oath when giving an account of Abrahams absenteeism. Justice Sakoane summoned Motinyane to court and questioned her along with Advocate Abrahams about her affidavit, on the non-availability of the prosecutor in court last week only to surface the following week. The judge eventually found out that the DPP had lied under oath but said she cannot be fined because the application in which she lied under oath was withdrawn.

The judge further ruled that “Mr Abrahams’ appearance before me to prosecute or lead the prosecution is rejected.” It is this particular ruling which does not sit well with Advocate Motinyane who contends that the court had infringed on her powers when it made the ruling. “This Honorable Court does not have any powers to determine who my lawyers should be and neither does it have any powers to terminate the mandate of any of my lawyers. In doing so, the Honourable Chief Justice has interfered with the legal powers that are bestowed upon me by the law,” Motinyane says, adding she has appealed the decision.

She argues that Justice Sakoane “has descended into the arena of issues that must be between litigants in this matter” and should therefore recuse himself. In the application, she narrates events that led to her perceptions about Justice Sakoane’s judgment and says the judge has not and will not bring an impartial mind on the adjudication of the matter.

She says when January 10 was set as the trial date, Abrahams informed the court that he would be unavailable and the court even asked why Advocates Nku and Lephuthing cannot take over to which Abrahams is said to have responded that he would discuss the matter with the DPP.

Motinyane further states that the court did not request Abrahams to withdraw from the matter as envisaged by the provisions of Legal Notice No 88 of 2021, but was instead informed about the unavailability of Abrahams on the day.

“The honourable chief justice thus had no reason to expect Advocate Abrahams to be in attendance on January 10.” Motinyane says she attempted to have the matter postponed to dates that the lead prosecutor could be available but that Justice Sakoane “refused to hear the application, threatened to remove the matter from the roll if the crown was not ready to proceed.” Motinyane explains that she then briefed Advocate Nku to proceed with the matter and that the matter was postponed at the request of some of the defence counsel’s request to quash the indictment and that although the matter could not proceed on the set dates, her lawyers were ready.

In the interim, she says it became apparent that the lead prosecutor was now able to join the team and made it to court on Monday where he was met by resistance from the chief justice. “I now hold a very strong view that the Honourable Chief Justice’s conduct in this trial, especially against the crown, has created serious perceptions that the Honourable chief justice is biased against the crown and will not be an impartial mind to bear on the adjudication of the trial of the accused.”

Adv. Motinyane also states what is concerning is the fact that Judge Sakoane was dismissive when addressed on the intention to move a motion for his recusal. She says the judge was so dismissive that he even assured defense counsel on the day that no further postponements would be occasioned and further that after hearing the recusal application, defense’s application to quash the charges will be heard.

According to Motinyane, for Justice Sakoane to conduct himself as he did, the judge created an impression in the minds of the general public and an understanding that the motion to have him recuse himself is a sham which he is easily going to dismiss and proceed as if nothing has happened. Advocate Motinyane argues that the conduct of Chief Justice, at least as to how things transpired on Monday, has not instilled confidence in her office (the Crown), victims of the crime and the society that he is bringing an impartial mind in his adjudication of this particular trial.

“I very well aver that the existence of this perception can only mean that the expected and most anticipated impartiality and independence of this court in the administration of justice in the current proceedings has gravely been tainted by the conduct of his lordship presiding,” she said.

“Not only I, but even a reasonable bystander watching the developments in this matter unfolding as aforesaid, can easily come to a conclusion that His Lordship presiding might be biased against the crown and will not bring an impartial mind to bear on the adjudication of the trial of the accused,” Motinyane adds. She says there is no indication that going forward, the judge presiding might not be biased against the crown and should therefore not preside further.