Apex court sets date for Kamoli appeal verdict
FORMER army commander, Tlali Kamoli and four others will have to wait until 12 November 2021 to know if their Court of Appeal application to move their attempted murder trial to the magistrates’ court succeeds.
Lieutenant General (Lt-Gen) Kamoli is facing attempted murder charges in connection with the 27 January 2014 simultaneous bombings of the homes of former First Lady ‘Maesaiah Thabane and former Police Commissioner, Khothatso Tšooana. His co-accused are Major Pitso Ramoepane, Captain Litekanyo Nyakane, Sergeant Malefane Heqoa and Corporal Mohlalefi Seitlheko.
They petitioned the apex court in June 2021. This after Judge Charles Hungwe had on 15 June 2021 dismissed their application to move their trial to the magistrates’ court.
They had argued that there was no valid reason why they could not be tried in the magistrates’ court since magistrates had jurisdiction over attempted murder cases.
Some legal analysts have argued that the application is merely a tactic to delay the case and possibly frustrate the Zimbabwean judge into resigning like his Botswana colleagues, Kabelo Lebotse and Onkemetse Tshosa.
The trio were recruited by the judiciary in 2019 to preside over the trials of politicians, serving and former members of the security agencies. But the cases have stalled due to the numerous and often frivolous lawsuits by the various suspects. This, and delays, in paying judges have resulted in the resignations of Justices Lebotse and Tshosa, leaving Justice Hungwe as the only foreign judge.
Justice Hungwe had dismissed Lt-Gen Kamoli and others’ application on the grounds that they had failed to justify why it should not proceed before him in the High Court. He said they should have raised the issue of jurisdiction when the attempted murder charges were filed in the High Court in 2018.
On Thursday, the apex court bench comprising of its president, Kananelo Mosito, and Justices Phillip Musonda and Tafuma Mtshiya heard arguments from both soldiers and the state.
The soldiers were represented by Advocate Karabo Mohau while the state was represented by Adv Christopher Lephuthing.
Adv Mohau argued that the Director of Public Prosecutions (DPP), Hlalefang Motinyane, had failed to justify her decision to prosecute the case in the High Court when the magistrates’ court had jurisdiction to hear attempted murder cases.
“The subordinate court (Magistrate) is empowered to deal with matters within their jurisdiction and the DPP cannot refer trials to the High Court without satisfying certain jurisdictional facts envisaged in section 144 of the Criminal Procedure and Evidence Act (CP&E),” Adv Mohau argued.
“We are not questioning the discretion of the DPP but there was no basis to refer the trial to the High Court as we have not been given reasons why she did so.
“The DPP should have informed both the magistrates’ court and the High Court as to why she decided to indict the accused persons in the High Court. The procedure adopted should satisfy what is envisaged in the CP&E, which is to show why the High Court should be seized with this trial.”
Adv Mohau further argued that section 144 of the CP&E provided that the DPP could only refer the trial to the High Court if she felt the witnesses were in danger or it was in the public interest to do so.
He argued that DPP Motinyane had failed to satisfy these requirements of the CP&E.
Adv Lephuthing counter-argued that the accused had failed to comply with section 160 of the CP&E which required them to file a lack of jurisdiction application supported by an affidavit. This would have enabled DPP Motinyane to furnish them with reasons why she had opted to prosecute the matter in the High Court, he said.
“In terms of section 160 of the CP&E, the appellants ought to have filed a notice of motion accompanied by an affidavit to give reasonable notice that they would be pleading jurisdictional issues. They should have demonstrated how the DPP abused or did not follow the criteria of section 144 of the CP&E.
“They never sought a record from either the DPP or the magistrates’ court as to what informed the decision to indict them before the High Court. They deprived themselves the opportunity to interrogate the decision of the DPP to indict them,” Adv Lephuthing argued.
Justice Mosito then reserved judgement to 12 November 2021, saying that the submissions required “serious consideration and we will come back with a verdict on 12 November 2021”.