MASERU – Lesotho Congress for Democracy (LCD) Mothetjoa Metsing and Movement for Economic Change (MEC) Selibe Mochoboraoane should have joined murder accused Lieutenant General Tlali Kamoli and three others in the dock when served with a notice of trial to appear before court on March 30. This is according to Chief Justice Sakoane Sakoane who is presiding over a case in which the pair is challenging the Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane’s decision to join them in the murder trial that had been pending before court for two years.
Motinyane has joined them in a murder trial in which Kamoli, Captain Litekanyo Nyakane, Lance corporals Motleheloa Ntsane and Leutsoa Motsieloa are charged in relation to the death of Sub Inspector Mokheseng Ramahloko.
The indictment has since been amended to include treason as an additional charge and the two politicians as additional accused persons. Justice Sakoane was on Tuesday this week told that the joinder of the two politicians was suspended when the prosecution, defence and the court agreed to postpone the court’s session because of a pending constitutional case on March 30 last year. On the day, Metsing and Mochoboroaone were present but sat in the gallery with the rest of the public as opposed to entering the dock as accused persons.
Their lawyer, Advocate Motiea Teele KC told Judge Onkemetse Tshosa who was then seized with the trial that he (Adv Teele) was in court to represent the interest of his clients and informed the court about the pending application before the High Court (sitting as the Constitutional Court). In the application, Metsing and Mochoboroane were claiming temporary immunity as per Clause 10 of the Memorandum of Understanding (MOU) between the then government and opposition parties.
The court subsequently granted the postponement so as to await the Constitutional Court judgment with the matter escalating to the Court of Appeal but Justice Sakoane says the pair ought “to have appeared before Justice Tshosa physically.” The top judge said the two leaders were supposed to appear before court as per a notice of trial they were served with.
He made the remarks on Tuesday this week during the hearing where he sought to establish what happened on the day the two politicians were supposed to formally appear before court. Judge Sakoane said court papers before him are not clear on what was supposed to transpire on the day but maintained that as per their indictment and notice of trial, they ought to have entered the dock.
“It was a problem if they did not appear in the dock,” he added. Asked what was going to happen on the day, Prosecution’s Advocate Shaun Abrahams said he was going to apply for their joinder. Advocate Teele, on the other hand, said he was prepared to challenge his client’s joinder had the court not agreed to grant a postponement. “My clients were there pursuant to the notice of trial, if it were not about the agreement (postponement), I would have challenged their joinder.”
Tuesday debates were cut short after Advocate Abrahams informed the court that he was unavailable to argue the matter beyond the set Tuesday date. He said he was engaged in a court in Cape Town the following day and the court agreed to postpone the matter. Advocate Teele had also not yet completed his arguments. Before the adjournment, Advocate Teele explained that his clients are not challenging DPP’s powers to charge them in the High Court but are challenging the fact that when she exercised her powers to indict them, she did not act within the prescripts of the law.
He argued that Advocate Motinyane did not follow the criteria set by the Criminal Procedure and Evidence Act (CP &E) when joining his clients. Even so, he said the DPP cannot purport to join his clients to a trial which has been pending for years before court.
According to Advocate Teele, joinder of accused person is provided for elsewhere in the CP&E Act not under section 144 which the DDP purports to be relying on. Section 144 speaks to summary indictment and states that whenever, in the opinion of the DPP, any danger of interference with or intimidation of witnesses exists or the DPP considers it to be in the interest of the safety of the state or in the public interest, he may direct that any person accused of having committed any offence be tried summarily in the High Court without preparatory examination being held.
Advocate Teele said that with their case, there is no evidence that there has been interference with witnesses and that any dangers to state security exists and therefore contends that the purported joinder is irregular. “There is no suggestion that they have been interfering with the witnesses, instead what we see is ulterior motives used to join them,” he said.
Further, Teele argued that Prosecution’s submission that it will only become evident that his clients were linked to the offences during preparation for trial is incorrect. Instead, he said it was used as a mechanism to provide for their joinder which he maintains has been done irregularly. On top of that, Advocate Teele says Motinyane’s decision to join his clients in the pending murder trial is coupled with ulterior motives which he says the DPP admits to in her papers.
He cited Motinyane’s reasoning that it was necessary to join the two politicians so as to save costs. Motinyane further claims that it was not easy to investigate Metsing and Mochoboroane when they were ministers and that the delay contributed to the delay in their indictment. She states in her affidavit that progress was only made after the change of government when the government in which they were cabinet ministers collapsed to which Advocate Teele said: “The DPP is trying to create an impression that my clients would not be investigated while in office whereas she states elsewhere that they appeared before the Magistrate Court on July 29 2014, I contend that they were investigable.” The matter has been postponed to a date yet to be advised but is said to be within the month of September. The criminal trial stand was postponed for a pre-trial conference.