…as lawyer alleges evidence was deliberately withheld to compromise his convicted client
Moorosi Tsiane
DOUBLE-murder convict, Habofanoe Ntsie, is fighting to overturn his conviction for the 2004 killing of two people at Sehlabeng, with his lawyer, Advocate (Adv) Letuka Molati, accusing the Crown of failing to produce crucial ballistic evidence that could bolster his client’s appeal.
Adv Molati told the Court of Appeal that two missing ballistic reports could undermine the prosecution’s case against Ntsie, who was convicted of murdering Souru Masupha and Habaka Mahao. He alleged that the incomplete court record was not accidental but part of a deliberate attempt to compromise his client’s appeal.
“My Lords, the record is not complete. I do not want to put the blame at the door of the DPP, but this is something that is being done deliberately,” Adv Molati told the court.
Ntsie was convicted by Justice ’Maseforo Mahase in 2012. He dramatically fled Lesotho during the lunch break as the judge was delivering her judgment and remained at large until his extradition from South Africa in March 2022.
In February 2023, he was sentenced to concurrent prison terms of 20 and 21 years for the murders.
He first approached the Court of Appeal in October last year, but his matter was deferred to the current session over incomplete court record.
However, when proceedings resumed before Justices Kananelo Mosito, Johann van der Westhuizen and Realeboha Mathaba, Adv Molati informed the court that the record remained incomplete.
He singled out two ballistic reports submitted to the High Court and marked as Exhibit G, saying they were missing from the record supplied to the appeal court.
According to Adv Molati, the missing evidence was central to his client’s challenge to the conviction because it allegedly indicated that the deceased had been killed with a firearm found in his own vehicle rather than one belonging to Ntsie.
“The witness testified that he was made to change the report and write that the deceased was killed by the appellant’s gun,” Adv Molati said.
He argued that the missing reports could have a decisive bearing on the appeal and urged the court to set aside both the conviction and sentence.
“There was improper evaluation of evidence by the High Court. The appellant should be released. The appellant should be released; the conviction and sentence must be reviewed and set aside,” he said.
Adv Molati suggested that the appeal be moved to the end of the current session to give the Crown time to produce the missing evidence.
The Acting Director of Public Prosecutions (DPP), Adv Lehlanako Mofilikoane, however, told the court that she was unaware of the exhibit to which Adv Molati was referring.
“My Lords, maybe the matter be stood down so that I can go to the High Court and look for the exhibit he is talking about,” she said.
The court was reluctant to proceed without a complete record, with Justice Mosito warning that doing so could jeopardise the proceedings.
“It is risky to proceed with the appeal when the record is not complete. The best thing would be that the matter be stood down and wait for you to come back to us before the end of the day today (Thursday) so we can decide the fate of this appeal,” Justice Mosito said.
When the parties returned after lunch, Adv Mofilikoane had located the missing exhibit. The court subsequently scheduled the matter to continue on 21 October 2026.
The latest dispute follows an earlier controversy over the scope of Ntsie’s appeal, with his legal representation having changed several times since his conviction.
During the previous Court of Appeal session, Ntsie was represented by Adv Khosi Lesuthu. However, he later dropped Adv Lesuthu as the matter was about to proceed, accusing him of striking a deal with the State behind his back.
Adv Molati, who was instructed on 2 October 2025 to take over the case, told a three-member appeal panel comprising Chief Justice Sakoane Sakoane and Justices Petrus Damaseb and Johann van der Westhuizen that he had been shocked to discover that Adv Lesuthu had entered into a “stated case” agreement with Adv Mofilikoane.
The agreement allegedly restricted the appeal to the sentence, effectively abandoning the challenge to the conviction.
Adv Molati told the court that Ntsie had never authorised such an arrangement.
He further revealed that the High Court proceedings comprised seven volumes, six of which were already in Ntsie’s possession, while Volume Two was missing.
Adv Molati warned that allowing the disputed agreement to stand would result in “the greatest miscarriage of justice”, arguing that Ntsie’s original notice of appeal challenged both his conviction and sentence.
He also accused the High Court of committing an irregularity during sentencing.
Chief Justice Sakoane subsequently ordered that the stated case be expunged from the record and directed the DPP to submit the complete record of High Court proceedings to enable the appeal to continue.
Proceedings before Justice Mahase
Ntsie’s sentencing proceedings were themselves marked by a dispute over legal representation after he appeared before Justice Mahase in October 2022.
He asked the court to allow him to find a new lawyer after dropping his previous counsel, the late Advocate Haae Phoofolo KC.
The High Court subsequently appointed Adv Raboletsi Makara to represent him pro deo, meaning at the expense of the judiciary.
Adv Makara applied for Ntsie to be returned to South Africa, arguing that his extradition had been flawed. Justice Mahase dismissed the application on 14 December 2022 and set 23 February 2023 for mitigation and sentencing.
At 9am on the scheduled sentencing date, Ntsie again sought to defer the proceedings. Adv Makara informed the court that he intended to file another application to have the sentencing stayed and to seek bail for his client.
Justice Mahase rejected the submission, saying Ntsie could not apply for bail after absconding.
When ordered to proceed with mitigation, Adv Makara opted to recuse himself from representing Ntsie.
Justice Mahase stood the matter down for a few minutes before directing Ntsie to mitigate his sentence. He refused to do so without a lawyer.
The judge then adjourned the proceedings to 3pm.
When the matter resumed, Justice Mahase reminded Ntsie that he had absconded for 11 years and said his bid for bail was merely a delaying tactic. She stressed that the court had to balance the rights of the accused with the interests of justice.
She subsequently sentenced him, reminding him of his right to appeal the sentence.
Despite his convictions, Ntsie was not charged with unlawful possession of the firearm allegedly used to kill the deceased or with absconding.
Adv Molati is now the fourth lawyer to represent Ntsie in the long-running matter, which is due to return to the Court of Appeal on 21 October 2026.