Maseru – Four soldiers accused of attempting to kill former Lesotho Times editor Llyod Mutungamiri’s reappeared before the magistrate court on Monday this week. This comes after the case proceeded in March 2022 when the victim testified on what happened on that fateful day in July 2016. Mutungamiri suffered near-fatal gun wounds in the attack by the army officers.
Initially, five soldiers namely: Brigadier Rapele Mphaki, Colonels Khutlang Mochesane, Nyatso Ts’oeunyane, Mochesane Phusumane and Maribe Nathane were charged with the attempted murder of Mutungamiri but one of them, Phusumane, was released from prison after he had turned state witness in September 2019. Phusumane took the stand to testify before the court but the defense expressed dissatisfaction with his stand as a state witness.
On behalf of the defense team Adv. Letuka Molati said as the defense they question the credibility of the witness before the court since the witness was among the accused. “The crown, through a process unknown to the defense, took the witness out of jail at a Maseru correctional institution and then the crown appeared before a different magistrate, not the one before whom this case was proceeding. They then entered into an arrangement that not only will he no longer be prosecuted but he will be state witness. Phusumane was contacted at the correctional institution without our knowledge as the defense. Also, the appearance before court (another magistrate) was done without notice to us as the defense.
“The magistrate who dealt with the case in the absence of the defense, was not as lenient as the magistrate before whom the matter is proceeding,” Adv. Molati said. Adv. Molati said given this background, the crown committed a number of irregularities that raise questions on the fairness of the trial. The crown breached the privileges that the accused persons enjoyed and, as such, an offence was committed. The defense submitted before the court that the whole case has been permeated by incurable unfairness and all that is left is for the proceedings to be permanently stayed because of the unprocedural conduct by the crown that has thrown the fair trial principle through the window in this matter.
Adv Karabo Mohau KC also said between the first remand which was on November 30, 2017 and September 3, 2019 the witness that the crown now wishes to call ceased to be an accused person in this matter. During that period Adv. Molati, who was then leading the consultations of the accused persons, said each time he consulted the four accused they would request that for the purpose of conveying accurate information they would prefer that Phusumane also attends.
He further noted that all this information was communicated to their lawyer in the presence of Phusumane who was then a co-accused person and is competent to testify. Adv. Molati posed before the court the question of law that he said will have to be determined prior to a decision being made about whether Phusumane is a qualified witness or not. He asked whether the consultation of Phusumane did not contravene the accused’s right to a fair trial. Adv. Molati noted that the crown violated the right to fair hearing as per section 12(1) of the constitution when it consulted the accused without the knowledge of the lawyer.
He therefore submitted before the court on behalf of the accused that Phusumane should be disqualified as a witness and the proceedings should be permanently stayed because incurable irregularities had tainted the process. He therefore pleaded that the matter be referred to the high court. On behalf of the prosecution Adv. Rethabile Setlojoane said the matter first came before the court on first remand on November 30, 2017, when the witness had been the co-accused in the matter. From that time until September 3, 2019, if it happened that the defense requested to consult, Phusumane would have been requested to attend. Adv. Setlojoane said all the details were disclosed to the accused legal team in the presence of Phusumane.
He further said charges against Phusumane were withdrawn and on September 4, 2019 was set for a hearing and the prosecution informed the court that the charges against Phusumane were withdrawn and he will be a state witness. Adv. Setlojoane said Adv. Molati was there and they asked for a date as the defense since they were not ready to deal with the matter.
The prosecution said the matter was then postponed to October 9, 2019 and there was no referral application by the defense. Adv. Setlojoane said this sudden application is only intended to delay the proceedings as the defense knew in 2019 that Phusumane will serve as an accomplice. The case was postponed to August 3, 2022.