Africa-Press – Lesotho. The Court of Appeal had on Friday handed down the judgment that disqualifies Chief Justice Sakoane Sakoane from presiding over the treason case.
Reading the ruling, the Court of Appeal President Prof Kananelo Mosito said the apex court had further reversed the Chief Justice’s (CJ) decision to suspend the lead prosecutor Advocate Shaun Abrahams from prosecuting the treason trial. This move paves a way for the reinstatement of the South African national, former director of public prosecutions (NDPP) at the National Prosecuting Authority (NPA), to take charge of the case. The judgment paves a way for Advocate Abrahams to resume prosecuting the treason trial in which the accused are former Lesotho Defence Force (LDF) Lieutenant General Tlali Kamoli, Litekano
Nyakane, Motloheloa Ntsane and Leutsoa Motsielo, Minister of Development Planning Hon. Selibe Mochoborane and former Deputy Prime Minster Hon. Mothetjoa
Metsing who has never made a court appearance and warrant of arrest had been issued for him. They face charges ranging from treason, murder, attempted murder and aggravated
assault. However, Ntsane and Motsieloa will not be tried on charges relating to treason, attempted murder and aggravated assault. The second court of record also said the Chief Justice (CJ) ought to have acceded to the
Director of Public Prosecutions (DPP) Advocate Hlalefang Motinyane application for recusal. The DPP had moved a recusal application accusing the trial judge of biasness.
In December last year, CJ scheduled the dates for the case to be heard in January 2021, then the lead prosecutor asserted that he had a matter to attend to in South Africa. The trial judge impressed on crown and defence counsels that lawyers who will be absent will have to pass the brief to orders arguing that
the accused (soldiers) have been in correctional facility for about four years without progress on their case. On January 10, a date which was marked for the commencement of the trial, Advocate
Abrahams was absent and the DPP had instructed Advocate Hopolang Nathane King’s Counsel (KC), now Judge of the High Court, to move the postponement application
and when CJ asked if he will proceed with the matter he withdrew and advocate ‘Naki Nku took over. Advocate Nku who had been entrusted with the case since 2018, was asked if she would be
able to carry on prosecuting the case, she told the court that she was not authorised to but asked for an adjournment to take directions from the DPP to
which after short adjournment she told the Judge that she will take over as lead prosecutor. On January 17 when the matter was supposed to continue, Advocate Abrahams was back
and told the court that he is back as lead prosecutor. The trial judge then told him he had no business in prosecuting the case as the new prosecutor had been
appointed. The court then told him that the DPP had since appointed the new lead prosecutor. Also, the DPP in her affidavit had stated that Advocate Abrahams was in South Africa, engaged in another case and had filed an
affidavit stating that Advocate Abrahams would no longer be involved in the case as she had appointed Advocate Nathane KC and Advocate Nku will lead assisted by
the former. Upon interaction with Advocate Abrahams, the Chief Justice established that his version was in contradiction with the DPP’s affidavit concerning his absence, a
move that necessitated him to conduct an inquiry on both DPP and Advocate Abrahams statements as per the provisions of the Speedy Courts Trial Act, 2002
where the DPP and Advocate Abrahams were sworn in and testified as witnesses. Part of their evidence conflicting thus the DPP referred to pending execution of the arrest of accused number five Hon Metsing who remains at large,
this submission Advocate Abrahams had agreed to and disagreed with the statement that the police had told the court that they were doing “everything to execute the warrant of arrest”.
The Chief Justice found DPP to have committed perjury while he said Advocate Abrahams had committed “professional misconduct”. “This behaviour of both Mr.
Abrahams and the DPP shows the cavalier manner in which they treat this court. They want this court to accept what they told it in the application for postponement and the appointment of Miss Nkuas
lead prosecutor. Their behaviour as officers of the court is completely unacceptable. “It is the DPP’s duty to see to it that Crown counsel and retained counsel exercise
her delegated powers properly, conscientiously and efficiently by attending court at all times and not at their convenience. The Constitution provides a
template for the DPP’s exercise of power by her delegates and retained counsel. Section 6(5) enjoins them to prosecute cases with due expedition. Section 12
obligates them to respect [the] fair trial rights of accused persons. Such rights include avoiding [bringing] frivolous applications for postponements by
reliance on false information. “Any lawyer found wanting and upholding the ethical standards of the legal profession is liable to disciplinary action.
A lawyer who deliberately places before court misleading information or makes a contention which he knows to be false is not fit to remain a member of the profession” reads the
judgement. Meanwhile, the Court of Appeal has also set aside this enquiry and its findings. On DPP’s request that the case be allocated to the foreign Judge, the court
declined to accede to that request saying it should be allocated to any Judge whether local or foreign. This would be the third time this case is allocated to the new presiding officer as
CJ took over the case after the then trial judge, Justice Onkemetse Tshosa resigned. The coram was made of Justice Moses Hungwe Chinhengo (Zimbabwe), and Justice November
Tafima Mtshiya (Zambia) and Justice Johann van der Westhuizen (South Africa). The DPP who was the appellate was represented by Advocate Motene Rafoneke while the
defence counsels were Advocate Motiea Teele KC, Advocate Letuka Molati and Advocate Lepeli Molapo. The second and last session for 2022 is scheduled for October 10.
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