ConCourt lacks jurisdiction to hear Kamoli petition
THE Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, has urged the Constitutional Court to throw out former army commander, Lieutenant General (Lt-Gen) Tlali Kamoli, and others’ application for a permanent stay of their litany of criminal trials.
DPP Motinyane also urged the Constitutional Court to throw out Lt-Gen Kamoli and others’ application for the recusal of foreign judges Charles Hungwe (Zimbabwe) and Onkemetse Tshosa (Botswana) because the same case had previously been brought before the Court of Appeal which rejected their application on 2 August 2019.
Her lawyer, Advocate Christopher Lephuthing, made the submissions on her behalf on Thursday before the Constitutional Court bench comprising of Justices Tšeliso Monapathi (presiding), Moroke Mokhesi and Keketso Moahloli.
The bench will give its verdict on 12 March 2021.
Last September, Lt-Gen Kamoli and other serving and former members of detained national security agencies’ officers joined forces to file the constitutional application for a permanent stay of their trials.
His co-applicants include Major Pitso Ramoepane, Senior Superintendent Thabo Tsukulu, Captain Litekanyo Nyakane and Lance Corporal Leutsoa Motsieloa among others.
They are accused of various crimes including the murder and attempted murder. Lt-Gen Kamoli and a few others are also treason against the first government of former Prime Minister Thomas Thabane.
Among other things, they argue that they should be released on the grounds that they have been held in remand prison for far too long in violation of their rights to speedy trials.
As part of their application, Lt-Gen Kamoli and his co-applicants petitioned the Constitutional Court to order the High Court and Court of Appeal Registrar, ‘Mathato Sekoai, to furnish them with a copy of the government and the Judicial Service Commission (JSC)’s agreement with the European Union (EU) and SADC for the recruitment of foreign judges to preside over their trials.
They argued that they needed a copy of the agreement to bolster their application for a permanent stay of their trials.
Their application for the agreement was duly granted by the court on 11 December 2020.
The registrar still has not complied with the judgement. DPP Motinyane is unhappy with the court ruling. Her lawyer, Adv Lephuthing on Thursday begged leave of the Constitutional Court to appeal to the Court of Appeal against the former court’s judgement.
He argued that the Constitutional Court should not even be entertaining Lt-Gen Kamoli and others’ application for a stay of their trials because the matter had already been thrown out by the superior Court of Appeal on 2 August 2019.
“This court has assumed jurisdiction over issues it does not have power to deal with,” Adv Lephuthing argued on Thursday.
“We pointed this court to a judgement of the Court of Appeal which this court ignored. In the event, this court assumed jurisdiction it did not have.
“The (High Court and Court of Appeal) registrar cannot be ordered to disclose the SADC agreement when the Court of Appeal has settled the issue of the recruitment of judges in the Mokhosi matter.”
Adv Lephuthing was referring to the 2 August 2019 Court of Appeal judgement which dismissed former Defence Minister Tšeliso Mokhosi and Lt Gen Kamoli’s application to nullify the recruitment of Justices Hungwe, Tshosa and his Botswana colleague, Justice Kabelo Lebotse.
Justice Lebotse quit early last year in protest at what he said were poor working conditions. This left Justices Hungwe and Tshosa as the only two foreign judges presiding over the high-profile trials of the serving and former members of the security agencies.
On his part, defence counsel, Adv Kabelo Letuka, counter-argued that the application for leave to appeal should have been filed before the Court of Appeal and not in the Constitutional Court as Adv Lephuthing had done. He therefore asked the court to dismiss Adv Lephuthing’s application.
“The application is ill-advised in that it should not have been filed before this court. Section 16(1)(b) of the Court of Appeal Act clearly states that a leave to appeal should be sought before the Court of Appeal and not this court.
“This court granted an interim order for dispatch of records and it cannot be asked to give permission for its ruling to be reviewed. Those records which they are refusing to furnish us with will help this court to determine the case before it,” Adv Letuka argued.
After hearing the two sides’ arguments, the court adjourned for 15 minutes after which Justice Monapathi announced that they would give their verdict on 12 March 2021.