Moorosi Tsiane

BUSINESSMAN, Mohapi Khofu, who is facing charges of defrauding the Lesotho government of about M1.8  million, has filed an application seeking the recusal of the trial judge, Justice Mabatšoeneng Hlaele

Khofu, along with his company, Refela Holdings, and Department of Rural Water Supply Contract Supervisor Thelingoane Liotlo, stand accused of defrauding the government of M1,857,221.51.

In 2016, Refela Holdings was contracted to install a sanitation project at Ha Khanye, Butha-Buthe. However, Liotlo, allegedly working in collusion with Khofu, falsely represented that the project had been completed, leading to the company receiving payment despite the work remaining unfinished.

The Directorate on Corruption and Economic Offenses (DCEO) charged the duo in the Butha-Buthe Magistrate’s Court on 5 November 2020. The case was later moved to the High Court, where it has been ongoing before Justice Hlaele.

On Thursday, instead of proceeding with the trial, the accused filed an application requesting Judge Hlaele’s recusal. They argue that she has displayed bias against them, particularly by allegedly stating that they were destined for prison.

According to Khofu’s founding affidavit, this statement was made during a 10 June 2024 chamber meeting attended by himself, the third accused (Liotlo), Liotlo’s legal representative, one Advocate Taaso, and prosecutor Mamongonyo Baasi.

“The case was called, and Adv Taaso stated that he represents Liotlo. At this point, the learned judge declared that the second accused (Refela Holdings) and I are the ones going to prison,” Khofu stated.

He argued that the judge’s alleged remark confirmed their long-standing suspicion of bias.

“This statement sealed the fate of the accused, suggesting that the judge has taken a position favouring the prosecution and against our right to a fair trial. It indicates that our guilt is predetermined in her mind.”

The accused further contend that Justice Hlaele is unlikely to impartially consider their innocence or assess whether the prosecution has met the burden of proof.

“By reason of the aforesaid statement and the overall conduct of the learned judge, we believe justice will not be administered impartially.”

Khofu outlined further reasons for suspecting bias. The accused initially faced similar charges in Butha-Buthe under case number CRI/166/2020. They requested further particulars on 23 March 2021 to prepare their defence, arguing that the charges were vague. The magistrate ruled in their favour on 16 February 2022, ordering the prosecution to furnish the requested details. However, the prosecution refused and instead committed the matter to the High Court.

In the High Court, Justice Hlaele ruled that the prosecution need not provide further particulars, despite the previous magistrate’s ruling. Instead, she directed the accused to rely on witness statements and photographs provided by the prosecution. However, she never delivered written reasons for this decision.

“This action prejudices our defence. We are charged in relation to payments on over 100 items, yet the prosecution refuses to specify which items were incomplete, defective, or falsely claimed.”

During cross-examination of Crown witness, Lehlohonolo Ntlama, in November 2022, Justice Hlaele struck off defence evidence related to a completion certificate. The judge ruled that although the accused had previously served the DCEO with the document, they had not informed the prosecution they would use it at trial.

“This is unfair, as the accused have no legal duty to pre-disclose their evidence to the prosecution,” argues Khofu.

The judge allegedly allowed the prosecution to introduce new documentary evidence on disputed facts without prior disclosure to the defence.

Due to these concerns, Khofu and Liotlo are requesting that Justice Hlaele recuse herself and that a substitute judge be appointed.