A case in which 10 soldiers are accused of the murder crime of some three men and throwing their bodies in the Mohale Dam has been set for trial on March 12.
The case which has been dragging for the past two years was set for pre-trial next week Friday after a length argument between the defense council and the crown on Tuesday.
The accused ten soldiers Sergeant Lekhooa Moepi (43), Captain Mahlehle Moeletsi (50), Lance Corporal Mahlomola Makhoali (32), Private Nthatakane Motanyane, (24), Brigadier Rapele Mphaki (47), Motšoane Machai (39), Liphapang Sefako (48) and Nemase Faso (28) among others, were charged for allegedly strangling Lekhoele Noko, Molise Pakela and Khothatso Makibinyane at Setibing on May 16 2017 and dumping them in the Mohale Dam.
The dates March 23, 24, 25, 26 and 6 April, 2021 have been set as argument days on the case.
The defense council implored Justice Onkemetse Tšosa to postpone the case to another date to await the upshots of the ongoing constitutional case, (Court of appeal civil number 49/2020 which will be heard on April 14, 2021).
The crown assembled of the two lawyers, Shaun Abrahams and ‘Naki Nku, stated that the case has been dragging while the victims; families, community and witnesses deserve speedy justice. Advocate Abrahams said the fact that there is a pending constitutional case does not hamper the proceedings of the trial, worse when the defense does not have a court order to the stay the case.
However, the defense council, comprising Advocate Shakhane who was standing in for advocate Letuka Molati for the first, fourth and eighth accused, Advocate Lekhesa standing in for advocate Napo Mafaesa on behalf of the seventh and ninth accused, while advocate Qhalehang Letsika was representing the third, fifth, sixth and tenth accused and Kabelo Letuka who appeared on behalf of the second accused.
The defense argued that although there was no stay court order to impede the trial, the constitutional case is likely to have impact on the current case as it is similar in nature with different forms.
Letsika told the court that, “the challenge is that we had another matter (Monday) before Justice Charles Hungwe and that matter was postponed to March 22 the understanding was that there is a pending constitutional case for mention.
“To avoid creating complications, could we perhaps look for a date to which this matter should postpone, and in the meantime I am hopeful that the constitutional case could be finalized, unfortunately I am not involved in that constitutional case.
“I am proposing that we obtain a date for mention so that we can await the outcome of that constitutional case and depending on how it goes then we will be free to move to the ground of this matter,” he said.
“It is the application of that case as it has criminal trial implication and impacts of aborting other criminal trials.
‘It is a public record of the very same nature with this one before very court although it is in a different format, the one of constitutional application,” he said.
Advocate Abrahams pressed that the absence of court order gives green lights to the proceedings to commence.
“I appeared before judge Hungwe for the matter that was postponed to the 22nd to let the constitutional case to be finalized which I am now aware of my errors in doing so and will meet with justice Hungwe to rectify that mistake. But if there is not order to stay then there is nothing preventing the proceedings of this case, I would like us to try and see if we can start this trial as soon as we possibly can.
“What is absent from the interim order is the directive staying the matter, there is no such order. The matter has already been dragged for six months; there will be another six months if this matter does reach finality. The accused has been in custody for considerable period of time.
“The witnesses, families and communities were victims of crime and demand speedy justice. There is no legal impediment to prevent His lordship from directing that this trial continues on a specified date.
Advocate Letsika came forth to defend the already enraged vocal debate citing that they are waiting for the same constitutional case to proceed as there was a case appealed by the DPP. He went on to mention that the crown threw them under the bus as they agreed on postponing the case until the constitutional case reaches finality.
“I can confirm that interim court order that was sought before the constitutional case was all branded and in turn, before there could be compliant of that order, the Director of Public Prosecutions (DPP) decided to appeal the matter. So it is the reason why we are waiting for the appeal that was enrolled to be argued in the court of appeal.
“In the second turn of events while awaiting the appeal, the DPP again filed an application for it to appeal before the constitutional court; we are also waiting for a date for that supposed application to which it will be argued.
“What I am saying is that all the delay that is happening now is actually out of control of applicants and their lawyers,” he said.
“The crown took a position that they are willing to wait until the constitutional case has passed, but they are now making a different statement. There is no order staying these proceedings yes, but issues that are raised in that constitutional case could have consequences to this trial and if the crown is willing to proceed, our hands will be tight but to let the matter to proceed,” he said.
Unfortunately, that was not enough for Justice Tšosa to halt the matter until the mentioned constitutional case reaches finality. Tšosa made a decision that the case will nonetheless continue since the defense council failed to produce a court order to stay the proceedings and that he does not see how the aforementioned constitutional case will hinder the existence of the trial.
“I listened to the arguments of both the crown and the defense in relation to whether we should proceed with this trial and set a date. The crown argued that there is no legal impediment impeding this matter from happening.
“The defense has not applied for a stay of the matter and the lodged constitutional application. There is nothing that impedes this trial during the time when the constitutional case is proceeding.
“The defense conceded that indeed there is no stay, but there was an understanding that this court should wait for the constitutional application to be finalized,” he said.
“The view of the court is that indeed there is no order staying the proceedings. The defense ought to have submitted in their prayers that the trial should stay and it is elementary that they did not do so.
‘The alleged complications that could occur have not been articulated. In the event where the constitutional application succeeds and this trial proceeding, the court will address the matter on that time. Currently there is nothing impeding the proceedings of this trial, and the trial shall continue,” he said.