Nat Molomo
MASERU – Six of the eight men facing trial for allegedly trying to stage a coup in April 2009 have taken their legal battle to the Court of Appeal.
This was after High Court judge Justice Thamsanqa Nomngcongo on Thursday dismissed their application seeking to block their trial.
The six had argued that they were illegally extradited from South Africa where they were being held after being arrested following their failed mission.
They argued that because they were not properly extradited to Lesotho the High Court has no jurisdiction to put them on trial.
The suspects were arrested in South Africa on April 22, 2009, after allegedly attacking the State House and attempting to assassinate Prime Minister Pakalitha Mosisili.
The crown alleges that they were part of a gang of 15 suspected mercenaries that slithered into the country attacked Makoanyane Barracks, stole guns and military vehicles, kidnapped some soldiers and launched an ill-fated attack on the State House that left four of them dead.
The six suspects together with the other two that were arrested before they could flee Lesotho are facing 31 charges which include kidnapping, robbery, murder and attempted murder.
For the past few months the six have had been challenging the legality of their extradition to Lesotho.
On Thursday Justice Nomngcongo ruled that the six had been properly extradited to Lesotho and the court has authority to prosecute them. “In my view the terms of the treaty between the two countries have been fully complied with,” Judge Nomngcongo said.
“On the evidence before me there has been compliance with the treaty. One can imagine the serious diplomatic embarrassment if the accused were taken back to South Africa, after the treaty was signed by the two countries.”
But their lawyer, Haae Phoofolo, wants his clients to seek remedy in the Court of Appeal.
He is arguing that the extradition treaty between South Africa and Lesotho states that the order must be shown to the person before being extradited.
He says his clients were only shown the order at the Maseru Bridge at a time when Warrant Officer Van Heever was handing them over to the Lesotho authorities represented by Senior Superintendent Boccalasa Senooe of the Lesotho Mounted Police Service.
He says the judge “erred or misdirected himself by holding that the Lesotho High Court had no jurisdiction to adjudicate on the conduct of the South African authorities’ denial of the appellants right to exhaust all legal remedies at their disposal before they were surrendered to Lesotho authorities”.
“The High Court was bound to consider whether the accused were lawfully surrendered to Lesotho authorities both in accordance with the Extradition Treaty, the Extradition Act 1962 of South Africa and the other relevant laws of both countries such as common law.”
The judge, Phoofolo argues, “misdirected himself by failing to appreciate that the appellants’ complaint was based on the events after their failed appeal to the High Court in Bloemfontein”.
“The challenged evidence on record is that appellants were read the Minister’s order only at the border between the two countries upon their surrender.”
Phoofolo told the Sunday Express he believes his clients’ rights were violated.
“The importance of this case lies in the fact that there has never been an issue like this in the courts of Lesotho involving the legality on extradition of a person to Lesotho from a foreign country,” Phoofolo said.
“This means that there is no precedence and that being the case it is necessary that the matter be placed in the Court of Appeal for its adjudication.”
Phoofolo said his clients are not satisfied with the High Court’s ruling.
“This denial of my clients’ right to appeal arose from the fact that they were shown the Minister’s order only at Maseru border post on the date of surrender on April 19.”
“We were taken aback by the remark of the honourable judge that there would be a serious diplomatic embarrassment if the accused were to be taken to South Africa.”
“In my view issues of relations between the two countries are political matters best dealt with by the executive arm of the government instead of judiciary,” he added.
The case will now be heard in the Court of Appeal in February next year.
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