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COVID-19: Court of Appeal to conduct digital hearings

Mohalenyane Phakela

THE Court of Appeal will conduct remote sessions via video teleconferencing when it opens for its first session for 2020.

The session is due to run from 12 to 29 May 2020.

Court of Appeal president, Justice Kananelo Mosito, recently said the innovative methods of conducting the May session were being implemented to ensure compliance with World Health Organisation (WHO) guidelines which encourage physical distancing to minimise the risk of spreading the highly infectious COVID-19.

The apex court was initially scheduled to hold its first sitting from 14 April to 1 May 2020 but it had to postpone due to the nationwide lockdown aimed at fighting the spread of COVID-19. The lockdown has since been extended to 5 May 2020.

Under the lockdown regulations, people are expected to stay at home and only venture out in exceptional circumstances to access medical services and purchase food and fuel. Most businesses and organisations are expected to remain closed except for those classified by the government as offering essential services like hospitals, pharmacies, grocery shops, transport, fuel service stations, media and the courts of law.

In the aftermath of the imposition of the lockdown, the courts announced that they would significantly reduce operations by suspending proceedings for most cases except for urgent applications.

Having delayed the opening of the first session of the apex court of 2020, Justice Mosito recently said they would finally open on 12 May but use video teleconferencing to enable judges to deliberate on cases from wherever they will be without them physically coming to the court in Maseru.

The apex court judges are drawn from different African countries. They are, Petrus Damaseb (Namibia), Phillip Musonda (Zambia), and Moses Chinhengo and Tafuma Mtshiya both from Zimbabwe. While Lesotho and Comoros remain the only two African countries free of COVID-19, the rest of the continent has recorded infections. Given that the foreign judges all come from countries with COVID-19 infections and borders have been closed in most countries as a result of the lockdowns, holding court sessions via video teleconferencing is a viable option.

“The current Coronavirus (Covid-19) pandemic necessitates the use of remote hearings wherever possible and this applies to hearings of all kinds, including applications and appeals,” Justice Mosito states in his recent statement on the apex court’s first session of 2020.

“While the Court of Appeal building currently remains open, the objective is to undertake as many hearings as possible remotely so as to minimise the risk of transmission of Covid-19. Notwithstanding that in terms section 3(3) of the Court of Appeal Act, the sitting of the court is in Maseru, the court may nonetheless, also sit at such place as the president may appoint. Thus, for the purposes of this practice, while the judges may sit at different places when hearing any appeals or applications presented before them, the operational situs (place) for such hearings shall be at Maseru…

“The hearings can be made open to the public, if technically possible…It is inevitable that undertaking numerous hearings remotely will cause teething troubles. All parties are urged to be sympathetic to the technological and other difficulties experienced by others,” Justice Mosito states.

He said lawyers should file correctly indexed and paginated electronic documents to enable the remote hearings to be conducted without any problems.

Some of the cases expected to be heard during May 2020 session include Prime Minister Thomas Thabane’s grandson, Thomas Thabane Jr, and others’ appeal against the granting of bail to the murder-accused First Lady, ‘Maesaiah Thabane.

‘Maesaiah stands accused of murdering Mr Thabane’s ex-wife, Lipolelo, on 14 June 2017. She appeared in the magistrates’ court on 5 February 2020 and was granted M1000 bail by Acting Chief Justice ‘Maseforo Mahase. This was despite that Justice Mahase was not the judge on call for granting bail and hearing urgent matters that week.  That judge on call that week was Justice Keketso Moahloli and not Justice Mahase. But the acting chief justice took charge of proceedings and hurriedly freed ‘Maesaiah. On 12 February 2020, Thabane Jr teamed up with Khauhelo Molapo, Thuto Makhooane and Thato Sibolla to file an application in the apex court for an order to set aside Justice Mahase’s controversial decision to grant Ms Thabane bail. Thabane Jr is the son of Dr Thabane’s second son, Potlako while Messrs Molapo and Makhooane are Dr Thabane’s nephews. Ms Sibolla is a survivor of the shooting incident which claimed Lipolelo’s life. They want the bail application to be set aside on the grounds that it was granted unprocedurally.

Another application that is before the apex court is that of the 10 soldiers who have appealed against Zimbabwean Judge Justice Charles Hungwe’s refusal to recuse himself from presiding over their murder trials. The soldiers who include former army commander Lieutenant General Tlali Kamoli stand accused of murdering former army commander Lt-Gen Maaparankoe Mahao on 25 June 2015. They want Justice Hungwe to recuse himself on the grounds that he is biased against them and is unlikely to give them a fair trial.



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