Africa-Press – Lesotho. The former Deputy Prime Minister (DPM) Hon. Mothetjoa Metsing and the Minister of Development Planning Hon. Selibe Mochoboroane had last week petitioned the High Court to stay their case proceedings until the Court of
Appeal has dealt with their application. The duo attempt to petition the Director of Public Prosecutions (DPP) from joining them in the murder and treason case pending the outcome of the appeal they have
lodged. This move is made in the treason case and the murder of former Lesotho Defence Force (LDF) Lieutenant General Maapanakoe Mahao who was allegedly killed by the
soldiers near Mokema in June 25, 2015. The former LDF Commander Tlali Kamoli and eight other soldiers have faced charges relating to this murder and have
been in custody since 2017 while awaiting their trail. “To the extent that the DPP is actively seeking to prevent the applicants from meaningfully exercises [sic] their right of appeal by vexatiously instituting
challenged criminal proceedings, the propriety at which action depends upon the determination of the appeals, the DPP is committing an abuse of court process,
which should not be counterbalanced. “The abuse of court process committed by the DPP is manifested in a related but different context in these proceedings.
She agreed to refrain from exercising her powers to institute the proceedings against the applicants pending the outcome of the decision by Constitutional Court on clause 10, which dictated
the deferral of prosecution against them,” reads their court application. They further argued in their court papers that the conduct of the DPP manifests “bad
faith”. According to the applicants, the DPP’s “conduct threatens to bring the administration of justice into dispute”. They further charged: “The situation is not helped by the nature of charges that she
seeks to bring against these applicants, particularly the political charges of treason, which lead to an inference that there is a political interest in the
joinder of the applicants. This is more so when she makes it appear that the joinder can no longer wait, but must be done immediately. She conveniently
forges that these alleged political offences are said to have occurred in 2014. Several regimes have come and gone after that period. What is the urgency one
might ask? Can we be asked to ignore the fact that the applicants are political leaders of particular political parties that are different from other parties-
that is why they receive the sort of treatment meted out to them now rather than before? “The cases that the applicants are to be charged with, as we have seen, were
allegedly committed in 2014, that is, more than five years ago. The charges were not brought until 2018, a staggering delay of more than three years. When
they were brought the applicants were not part of the indictment. Now, there is no explanation for such a delay because it suits the DPP. Strange to relate,
when once she had taken her time, and she institutes the case in 2018, when it now suits them, they start complaining about the time delays by the adversaries.
That is not justice. “There is no legally, and factually acceptable excuse, why the DPP has suddenly changed her attitude, including her vehement and costly opposition to this
application. The applicants are now been torn between different courts where they deal with the same matter at considerable expenses to themselves and the
state and the stigma attaching them as individuals when to the knowledge of the DPP, a final decision will be given on the matter only this month,” says their
spirited court application. The Court of Appeal heard their appeal on April 12th and is set to hand down the judgement on May 7. In November last year the Constitutional Court declined to afford the applicants
rescission and also declared the much debated Clause 10 which says “Mr. [Mothetjoa] Metsing and similarly placed persons will not be subjected to any pending criminal proceedings during the dialogue and reform process” as
unconstitutional. It held thus:”… it would be legally justifiable to arrive at a conclusion that Clause 10 of the MOU, remains unconstitutional. However, we remain convinced that the sprit in the MOU appears to be a
constructive way forward paving towards national healing, reconciliation and unity. We reiterate our earlier position that the problem is intrinsically political and needs a political solution
rather than a legalistic one. ” It further said, “Clause 10 is pronounced unconstitutional”. They petitioners have also appealed the Chief Justice Sakoane Sakoane’s earlier
judgement in February 9 this year where he declined to preside over their challenge on the crown’s move wanting their jointer on the ongoing soldier’s
trail. Declining to hear the case the Chief Justice said the matter be referred to the trail judge (Justice Tshosa). Their lawyer, Advocate Motiea Teele King’s Counsel (KC) asked the court that this
case be consolidated with those of the other accused, soldiers who have lodged counter applications and others had sought the discharge from the jail.
Advocate Teele KC told the court that he had received “flurry” of applications from the accused, soldiers, adding that it will be best for the court to hear these
applications holistically. “We must help you [Judge Tshosa] to arrive at the fair conclusion,” he stressed. He then proposed that the matter be postponed to allow court time to deal with the
matter. For the crown, Advocate Shaun Abrahams warned that if this is not judiciously dealt with, there could be “far reaching implications”. “Last thing we want is to appear before the Court of Appeal,” charged the former
South African National Director of Public Prosecutions (NDPP). He echoed similar sentiments of Advocate Teele KC saying that it will not be in the interest of the justice if the cases are tried separately.
Advocate Abrahams however said he had filed the submissions with a “heavy heart”, adding that the law must prevail in the interest of justice. The respondents are: the Director of Public Prosecutions (DPP), the Attorney
General, Tlali Kamoli, Litekanyo Nyakane, Motloheloa Ntsane and Leutsoa Motsieloa being first to sixth respondents respectively. The matter is set for hearing and arguments on April 26th.
In the meantime, the counter applications were filed on April 8th, the crown and the applicants, Mochoboroane and Metsing will file on April 19th, the counter applications and the replying affidavits are to be filed on April
22th and all heads of arguments are expected to be filed on April 23th. The case is before Judge Onkemetse Tshosa.