The Director of Public Prosecutions (DPP) Advocate Hlalefang Motinyane is battling to have her dismissed lead prosecutor Shaun Abrahams back to the prosecution team in a high treason matter.
Yesterday, Advocate Motene Rafoneke, led the prosecution in the Court of Appeal which was presided by Acting Justice Moses Chinhengo assisted by Acting Justice Dr Van De Westhuizen and Acting Justice November T Mtshiya in the matter arguing that Chief Justice Sakoane Sakoane wrongfully dismissed Abrahams from the case.
The drop-back of the matter emanates from the CJ’s propriety of conducting an enquiry earlier this year to quiz Abrahams along with Motinyane before reaching a conclusion to sack the South African lead prosecutor from the matter.
The other matter that motivated the appeal was Sakoane’s refusal to recuse himself from the matter as was requested by the prosecution citing an element of bias from the Chief Justice in the court a quo.
The decision for Sakoane to kick-out Abrahams surfaced after the lead prosecutor played a no-show on the dates that were pencilled for resumption of the matter in January 10 and 17, 2022.
An application for postponement of the case was filed by Motinyane citing that Abrahams was pressed with cases in South Africa, thus could not appear before court which went south as the Chief Justice aborted the application that was motivated by advocate Hopolang Nathane KC on January 8.
This is the matter in which the former army boss Lieutenant General Tlali Kamoli is accused alongside Captain Litekanyo Nyakane, Motloheloa Ntsane, Leutsoa Motsieloa, and Minister of Development Planning Selibe Mochoboroane while Former Deputy Prime Minister Mothetjoa Metsing went AWOL.
The quintet is charged on allegations of the murder of the late Police Sub-Inspector Mokheseng Ramahloko after the Lesotho Defence Force had stormed and raided the Lesotho Mounted Police Services (LMPS) headquarters in August 2014 and an attempted coup d’état against the former Prime Minister Motsoahae Thomas Thabane regime of 2014.
“At some point the dates of the matter were set and the lead prosecutor was committed elsewhere and the application for postponement was filed but was later withdrawn. There was a time when everything was ready for the case to carry-on with the prosecutor back and the court a quo decided that the lead counsel does not have a space anymore.
“Because, according to the court another prosecutor had been appointed to lead the prosecution team. So this necessitated the enquiry and is in that enquiry that the court made its own findings that the application for postponement was not made in good faith and the court was even tempted to impose a punitive sanction against the appellant,” he said.
Rafoneke continued to narrate to the apex court that it was at the end of the enquiry where the court proceeded to demonstrate that the lead counsel did not have space anymore because the DPP had replaced him with Advocate Nnaki Nku who at all material time had been assisting the lead counsel.
“We find this very disturbing because this ruling confirms what attitude of the court was before it conducted the enquiry because the enquiry was conducted after the court has expressed its shock with the involvement of the lead counsel.
“Throughout the conduct of the enquiry the court was adamant and put several time to the DPP that the mandate of Abrahams has been terminated and this was denied during the enquiry by appellant,” he said.
He said even for the court to conclude that the mandate of Abrahams had been terminated; the sanction is basically wide of the mark since the record reveals that during the engagement of the Chief Justice with Nku, it never surface that the lead counsel’s mandate was terminated.
“This matter became a contestation in the recusal application and at that particular time the court was of the view that it is entitled to map a punishment that it has imposed to the counsel which is to prevent him from appearing before that court.
“The long and short of it is that section 12 of the speedy court trial that provide for imposition of such sanction, our submission is to the effect that this is not the position. Once counsel has been faulted in as far as jurisdictional facts of that section are concerned, the court is entitled in terms of the Act to either impose the sanction that counsel should pay a particular amount as a punishment or that if counsel is to be barred from appearance, the Act specifically limits that to a period of three months,” he said, adding that Sakoane’s decision is not in accordance with the provisions of the Act and defies its logic.
“Chief Justice’s decision in expelling the appellant counsel all together is far away from the provisions of the act in that regard. Our submission and contention is that the learned Chief Justice has acted indefinitely expelling counsel from appearance in this matter.
“Our submission is that the application was moved by adv Nathane KC assisted by adv Nku and the affidavit was executed by the appellant in the matter. In as far as that application which forms the subject matter of the enquiry is concerned, adv Abrahams cannot be included into the definition of what amounts to the counsel for appellant in that case.
“So the punishment is meted at somebody who was never involved in whatever misinformation or any attempt to try and delay the matter whatsoever,” he said.
However, adv Lepeli Molapo told the court that the DPP left a bulk of record in his address to the Appeal Court which includes the dates that were marked for the matter to proceed with Abrahams present.
He pointed out that one of the major applications which caused the delay was the joining of the sixth and fifth respondents (Metsing and Mochoboroane) to the original indictment he said in November the court ordered that for the matter to proceed the suspects should be joined.
It was on December 4, 2021 when the news broke that the Metsing had skipped the country and the record which evoked a warrant of arrest to be issued.
“The matter was postponed to the sixth of December and the court indicated that it wanted hear submissions whether it should proceed in absence of fifth respondent.
“The court directed that the DPP has one solution; either apply for separation of matter, and the DPP applied for postponement until accused five is arrested and the court made a ruling in that respect that it could not wait for the arrest of the fifth accused because it had no idea of when he was going to be arrested,” he said.
“As a result there were two options; apply for separation or have the court to dismiss the charges which was the motion that had also been initiated the other respondents who have been languishing in jail.
“Our submission is that the issue was addressed and Mr Abrahams was present and addressed that issue and when the court proceeded it was common course that the fifth respondent had been separated,” he said.
He continued that the dates of hearing were set to December 13, 2021 between DPP who was represented by Abrahams and other respondents, starting from January 10 and 17, 2022 for the matter to proceed.
“The ultimate agreement was that all should make sacrifices to be present or pass the brief to the other lawyers,” he said.
However, that did not become the matter as the lead prosecutor did not show with Nathane KC appearing for the prosecution to motivate the postponement application on the grounds that Abrahams was not present and that the case should be shelved while an arrest for Metsing is being initiated.
The matter further turned south as Sakoane could not wait for an indefinite arrest of Metsing and would be left with no choice but to dismiss the charges if the case does not continue.
Later in the day, adv Nku returned before court with instructions to lead the pack. The case was shelved to January 17, 2022 where the crown appeared with Abrahams in the midst, and thus called for Sakoane to conduct an enquiry and resultantly dismissing Abrahams from the matter.