Tefo Tefo

Acting High Court Judge, Justice John ‘Musi on Thursday directed army commander Lieutenant-General Tlali Kamoli to prepare fresh notices calling upon soldiers imprisoned between May and June 2015 by the military for alleged mutiny, to explain why they should not be placed in detention.

The directive was made after the soldiers’ lawyer, King’s Counsel (KC) Haae Phoofolo and the lawyer representing the army chief, KC Motiea Teele, agreed to this arrangement after the judge ruled that Lt-Gen Kamoli was not in contempt of court when he did not release the detained soldiers as Justice Molefi Makara had ordered on 16 October 2015.

The 22 soldiers had filed an application before the High Court fighting for release from Maseru Maximum Security Prison and to be placed under open arrest – a procedure similar to bail in civilian courts.

However, only 18 soldiers still remain in detention after four were released on different occasions.

The soldiers were initially 23 but Brigadier Thosiso Mareka was the first to be released due to poor health.

Justice Makara on 5 October 2015 ruled that the soldiers’ detention was unlawful because it did not comply with the regulations.

However, the army did not release the Lesotho Defence Force (LDF) members, and instead, gave them notices on 6 October 2015 asking them to explain why they should not be kept in detention.

Only Corporal Mohatlane responded to the notices and was released from detention, while Brigadier Poqa Motoa, Colonel Stemere, Colonel Kolisang, Major Makhetha, Captain Chaka, Sergeant Mokhobo, Sergeant Semakale, Sergeant Lekhabunyane, Corporal Mokhoro, Corporal Letsilane, Corporal Lipoto, Corporal Manaka,  Corporal Chele, Lance Corporal Molefi, Lance-Corporal Makhooane, Private Pama, Private Bolofo and Private Ralitlemo remained in Maseru Maximum Security Prison.

The detained soldiers then filed an application requesting the court to find Lt-Gen Kamoli in contempt for not releasing them despite the High Court ruling of 5 October 2015.

But Justice Makara on 16 October 2015 ruled that the army commander was not in contempt because he might have misunderstood the order of the court.

The judge further said his judgment meant the detained soldiers should be released, but remained incarcerated. They filed a second contempt application on 2 November 2015.

The application was supposed to be argued before Justice Makara on 20 November 2015, but Lt-Gen Kamoli’s lawyer, Advocate Teele informed the judge that the commander wanted him off the case for fear of bias.

The lawyer argued Justice Makara was likely to be biased against Lt-Gen Kamoli after the judge expressed anger, in chambers, over criticism leveled against him over a local radio station. The criticism concerned the judgment Justice Makara had made in the soldiers’ first contempt application—that Lt-Gen Kamoli was not in contempt for not releasing the soldiers because he might not have understood the order.

It was this decision which was criticised on radio, prompting the judge to summon crown and defence lawyers to his chambers.

On 1 December 2015, Justice Makara told a packed courtroom he was taking himself off the case not because of what had been alleged in an affidavit supporting the recusal application, but the “collapsed” relationship between him and some of the lawyers involved in the case.

The case was re-allocated to Justice ‘Musi from South Africa who gave his ruling on Thursday.

It was after arguments from the lawyers that the judge ruled that the army commander was not in contempt because the respondents, who included the army chief, stated in their answering papers that they complied with the order by giving the detained soldiers an opportunity to explain why they would not be kept in detention.

But they did not respond to the notices and only corporal Mohatlane did and was accordingly released.

The judge did not dismiss the case, instead he removed it from the High Court roll on condition that fresh notices be given to the detained soldiers calling on them to explain why they should not be kept in detention.

Justice ‘Musi said the detained soldiers should be served with notices by Thursday next week and respond by 2 February 2016.

The army commander should indicate by 5 February what he has decided about the individual detained soldiers.