…as Court of Appeal considers judge’s alleged bias
Moorosi Tsiane
DOUBLE-murder convict, Habofanoe Ntsie’s 21-year prison sentence could be nullified if the Court of Appeal finds that the judge who convicted him should have recused herself because of her prior involvement in a dispute between him and his victims.
Ntsie, convicted of murdering Souru Masupha and Habaka Mahao, is awaiting the court’s ruling on whether Justice ’Maseforo Mahase ought to have stepped aside from his trial.
A ruling against the judge could render the proceedings before her a nullity, potentially reopening a case dating back more than two decades.
His lawyer, Advocate (Adv) Letuka Molati, told the Court of Appeal on Friday that Justice Mahase had prior knowledge of a dispute involving Ntsie and the two deceased, arguing that her earlier involvement compromised the fairness of the subsequent murder trial.
The appeal is before Court of Appeal President Professor Kananelo Mosito, sitting with Acting Judges Dr Johann van der Westhuizen and Realeboha Mathaba.
Adv Molati traced Justice Mahase’s involvement in the matter to 2004, when she was still a magistrate. He said the then Chief Central Magistrate, Molefi Makara, had assigned Justice Mahase and another magistrate to deal administratively with a complaint Ntsie had lodged against a prosecutor at Maqhaka Local Court.
“The Judge in the High Court should have recused herself but she refused. She first encountered the matter in 2004 when the then Chief Central Magistrate, Molefi Makara, assigned her and another magistrate to intervene administratively in a complaint the appellant had lodged against a prosecutor at Maqhaka Local Court,” Adv Molati told the court.
The complaint arose from a dispute over cattle that Ntsie accused Masupha and Mahao of allowing to stray into his vegetable farm. Ntsie had laid a criminal charge against the two men, whom he would later be convicted of murdering.
According to Adv Molati, the matter was due to be heard at Maqhaka Local Court but was postponed after one of the accused had a personal matter to attend to.
The postponement allegedly angered Ntsie, who confronted the prosecutor. Adv Molati said the prosecutor responded by telling Ntsie that if he was unhappy, the two could fight and kill each other, after which the prosecutor would charge whoever survived.
Aggrieved by the alleged remarks, Ntsie lodged a complaint with Justice Makara, who assigned Justice Mahase to address the matter administratively.
Barely a week later, however, the dispute took a deadly turn when Ntsie shot and killed Masupha and Mahao.
Adv Molati argued that Justice Mahase’s earlier involvement should have disqualified her from presiding over the murder trial, contending that the proceedings before her amounted to a mistrial.
He urged the Court of Appeal to set aside the High Court proceedings and remit the case for a fresh hearing before a different judge within a reasonable time.
However, Acting Director of Public Prosecutions Lehlanako Mofilikoane opposed the argument, maintaining that Ntsie had failed to establish a proper basis for alleging bias.
“The appellant ought to have provided reasons and proved a reasonable apprehension of bias,” Adv Mofilikoane said.
She also questioned the timing of Ntsie’s application, arguing that he had waited until after the prosecution had closed its case before raising the issue.
“The appellant brought his application after the prosecution has closed its case,” she said.
After hearing submissions from both sides, Prof Mosito said the court would determine the recusal issue during its current session, adding that the matter had to be finalised without unnecessary haste.
“This appeal has to be heard to finality during this session but we do not have to rush. The court will hand down its ruling on the matter on 21 October 2026,” Prof Mosito said.
The ruling could prove decisive for Ntsie’s conviction.
If the court finds that Justice Mahase ought to have recused herself, the proceedings and resulting judgment could be declared a nullity, paving the way for a fresh trial de novo before a different judge.
However, if the court rejects the recusal argument, the parties will proceed to make submissions on the remaining grounds of appeal, leaving Ntsie to continue challenging his conviction through the ordinary appeal process.
Ntsie was convicted of the 2004 murders by Justice Mahase in 2012 but fled Lesotho during the lunch break as the court delivered its judgment. He remained at large until he was extradited from South Africa in March 2022.