Judge breathes fire

. . . as Minister Mochoboroane misses court

RELEBOHILE TSOAMOTSE

MASERU – High Court Judge ’Maliepollo Makhetha questioned the government’s decision to allow Health Minister Selibe Mochoboroane to leave the country on Sunday on a visit to the People’s Republic of China ahead of his scheduled court appearance. Mochoboroane failed to appear in court on Monday to face treason charges.

The scheduled court appearance is part of a series in the trial involving him, Mothetjoa Metsing of the Lesotho Congress for Democracy (LCD), retired army commander Lieutenant General Tlali Kamoli, and three other soldiers. Mochoboroane is in China to facilitate the opening of a Chinese-sponsored hospital in Maseru.

His lawyer, King’s Counsel (KC) Motiea Teele informed the court that he was compelled to seek postponement of the trial after agreeing with the prosecution that Mochoboroane’s trip was in national interest. KC Teele also said he unsuccessfully attempted to notify Judge Makhetha of these developments last Friday, which led him to request a new trial date. He added that he had proposed allowing the trial to proceed in Mochoboroane’s absence, but this suggestion was rejected by the prosecution’s counsel, Advocate Motene Rafoneke, on legal grounds.

However, Judge Makhetha questioned the necessity of Mochoboroane’s personal involvement in the China trip, especially given the court’s order for the trial to proceed on Monday this week. “I do not understand why it had to be him who went rather than any other minister. Couldn’t someone else have taken his place given the ongoing trial?” the judge asked.

She expressed discomfort with the executive’s decision to send Minister Mochoboroane to China, despite his pending court case. By prioritising government duties over a court appearance, Justice Makhetha said, Mochoboroane seemed to place executive orders above judicial ones, which she said was regrettable. “It appears that the orders from the executive are considered superior to those of this court, which degrades its reputation,” she stated.

Justice Makhetha was vowed to prevent such occurrences in the future. “I will never allow this to happen again; it is unacceptable for someone to skip their scheduled court appearance and then come forward with excuses. “Should it happen ever again, I will not hesitate to issue a warrant of arrest for any accused who believes executive orders are more important than those of the court.”

Teele attempted to explain that Mochoboroane was willing to have the trial continue in his absence, in accordance with constitutional provisions regarding the right to a fair trial. He cited a specific section of the Constitution that allows for a criminal trial to be conducted without the accused present, provided there is consent, insisting that Mochoboroane had indeed agreed to this arrangement. He insisted that his client should not be perceived as evading the trial or inconveniencing the court.

“I have no issue with the proceedings continuing in the absence of my client, but we were led by the prosecution to believe that authority dictates the trial cannot proceed without him. I am aware that the Constitution allows an accused to consent to a criminal proceeding in their absence,” he said. Contrary to Teele’s assertion, Rafoneke explained that the prosecution had not consented to a postponement when responding to the request for one, criticising Mochoboroane’s decision to travel to China despite knowing the trial dates.

“It is uncalled for; the trial dates were established well in advance, and for the accused to make other arrangements knowing these dates puts us in a very difficult situation,” he said. “We are not consenting to this application but leave the decision in the hands of the court.” Rafoneke’s suggestion that the court should decide on the postponement was met with criticism from the defence lawyers, who argued that the prosecution should clarify its position.

Advocate Kabelo Letuka charged that the prosecution should organise its affairs and clearly state its stance to the court. He accused the prosecution of being aware of Mochoboroane’s whereabouts and tacitly consenting to his absence. “My lady, the Crown cannot avoid taking a position in this matter. This is their case; they can’t simply leave the decision up to the court when a party applies for a postponement; they must clearly state their stance,” Letuka argued.

He continued: “I wish to raise another point that also pertains to the issue of representation. There was a period when Adv. Rethabile Setlojoane was appearing before you in this very case, alongside Advocate Rafoneke. Just last week, Adv. Setlojoane informed me that there was a request for a postponement by accused number six.

“He mentioned that, due to the significance of the trip we have been told he is on, they, representing the Crown, had consented to the postponement. “He concluded by informing the court that although his client was prepared for the trial to proceed, if the Crown consents to a postponement, this agreement should be formally recorded to ensure his client can appropriately exercise his rights.” Following these discussions, Justice Makhetha postponed the trial to May 20.