…as court dismisses bid to challenge phone records evidence
Hopolang Mokhopi
THE Rasekoai sisters, who stand accused of murdering their mother in July 2022 to cash in on her pension, have suffered a legal setback after the High Court dismissed their application to challenge the admissibility of call data records obtained from Vodacom Lesotho as part of the Crown’s evidence.
Justice ’Maliepollo Makhetha on Friday rejected their bid to stage a trial-within-trial, stressing that such procedural objections should be raised before the evidence is led.
Nthei and ’Maphoka, aged 34 and 27 respectively, are accused of fatally assaulting their mother, Martha Rasekoai, with a spade in an alleged attempt to claim her million-maloti life insurance policy. At the time of her death, Ms Rasekoai was employed at the then Ministry of Development Planning.
Her body was discovered two days later near a rivulet in Ha Tsolo, Thetsane, where it had allegedly been dumped by the sisters.
According to police investigations, the accused reported their mother missing at Thetsane Police Station on 26 July 2022, despite allegedly having kept her body at their Masowe 4 residence before disposing of it.
The sisters are currently out on M500 bail each, granted by Justice Tšeliso Mokoko in March 2023.
The trial took a turn in November last year when their lawyer, Advocate Lesaoana Mohale, challenged the testimony of Vodacom’s Senior Specialist in Information Management Systems, Moneri Mokobocho, who appeared as the Crown’s ninth witness (PW9).
The defence objected to the admissibility of call data records, which the prosecution relies on to link the accused to the victim.
The records were obtained through a court order issued by Magistrate Itumeleng Letiska on 29 August 2019, under Section 46 of the Criminal Procedure and Evidence Act of 1981, following an affidavit by Detective Sergeant Maraisane outlining the basis for the request.
They detail incoming and outgoing calls linked to the deceased’s phone and her missing handset, covering the period before, during and after her disappearance in July 2022.
The court heard that about two weeks before the trial began, the prosecution had furnished the defence with all witness statements, police dockets and an affidavit from Mr Mokobocho. At that stage, the defence—initially led by Attorney Makhabane Masupha and later by Adv Mohale—raised no objections.
However, as Mr Mokobocho neared the end of his testimony, Adv Mohale lodged a procedural objection, arguing that the call data relating to the accused’s phones had been obtained without their consent, thereby violating their constitutional right to privacy.
He urged the court to exclude the evidence and order a trial-within- trial to determine the legality of both the court order and the evidence.
In response, the prosecution, led by Advocate Lehlohonolo Phooko, opposed the application, arguing that a trial-within-a-trial was ordinarily used to determine the voluntariness of confessions, not to assess expert evidence such as call data records.
He maintained that the records were lawfully obtained through a valid court order and that the defence’s argument was misplaced.
Adv Phooko further argued that the objection should have been raised earlier—preferably before the evidence was presented—citing case law, including State vs Terence Stephen Brown, which emphasised the need for timely challenges to electronic evidence.
In her ruling, Justice Makhetha acknowledged the importance of protecting personal data under the Data Protection Act of 2012 but stressed that law enforcement agencies were permitted to obtain evidence through court orders in criminal investigations, provided due process is followed.
“The court’s role is to balance privacy rights with the interests of justice,” Justice Makhetha said.
She found the defence application to be procedurally flawed and filed too late.
“Since the defence did not raise the issue at the proper time, their application for a trial within a trial cannot succeed.
“The evidence obtained under the court order is admissible, and the case will proceed accordingly.”
Justice Makhetha further directed that Mr Mokobocho will continue with his testimony from 31 August 31 to 4 September 2026 when the trial resumes.