A CASE in which the Ministry of Local Government and Chieftainship Affairs, Deputy Principal Secretary (DPS) Ntai Makoetje, and his co-accused are facing charges of corruption, fraud and theft was on Friday postponed to Wednesday this week.
The case was postponed in the Magistrate’s Court because the prosecutor, Mohau Mahanyele, was reportedly away on other work-related matters.
The case had initially been postponed on 12 September to enable Mr Mahanyele to respond to the argument presented in court by the accused’s lawyer, Advocate Motiea Teele (King’s Counsel), in which he objected to the reading of the charges to the accused.
Mr Makoetje is charged together with the ministry’s Engineer, Letlola Sekatle, Maseru City Council Treasurer ‘Mamolemo Moseme and Town Clerk ‘Mantai Phaila.
Advocate Teele had argued that the charges contravened the country’s constitution.
The four first appeared in the Maseru Magistrate’s Court on 1 August, charged alongside Deputy Prime Minister Mothetjoa Metsing and Minister of Communications, Science and Technology, Selibe Mochoboroane.
However, the case was discontinued soon after the charges were read, with the prosecution noting this was to enable the police to complete their investigations.
On 12 September 2014, Mr Makoetje, Mr Sekatle, Ms Moseme and Ms Phaila were back in court to face similar charges, but without Mr Metsing and Mr Mochoboroane.
But no sooner had the case started than Advocate Teele (King’s Counsel) raise a point of order, arguing the law had been violated when bringing the charges against his clients.
Advocate Teele, who is defending the accused together with Advocate Salemane Phafane KC, asked the presiding Senior Resident Magistrate Peter Murenzi to refer the case to the High Court for the determination of the point he had raised.
He also gave a brief background to the case in his bid to persuade Mr Murenzi to refer the case to the High Court.
“The accused were only served with summons yesterday, which required them to appear in court today. As we indicated in chambers, our instructions are to object to the remand of the accused,” Advocate Teele said.
“The proceedings before you should be stayed pending the determination of this matter by the High Court. This matter came before court previously on the 1st of August, 2014 before the Chief Magistrate. There were six accused persons at that time.”
“What then happened was that the charge was read and withdrawn. The reason given in court was that the investigation had not been completed,” Advocate Teele said, noting however, that this was not the real reason behind the withdrawal.
“We had inquired from the Director of Public Prosecutions (DPP Leaba Thetsane) as to what was going to happen in court and realised he was not aware of the docket of the case. The DPP indicated that he should be consulted in proceedings involving government officers, including politicians.
“He then gave instructions to withdraw the charges against the accused.
“Again, we inquired as to whether he had been seized with the matter and he said the situation was still the same. This is contrary to Section 99 of the constitution which outlines the functions of the DPP.
“The previous proceedings were instituted behind his back while the DPP was still in office. He still hasn’t been consulted on these proceedings.”
Advocate Teele further said the institution of criminal proceedings against the four accused was still unconstitutional.
He, however, told the magistrate he did not have the powers to determine the legality of the proceedings, noting: “We only ask you to refer the matter to the High Court for determination.
“We understand the directive, which authorised the institution of these proceedings was issued by Advocate (Kananelo) Khoboko on 12 September 2014.
“She is the person who instituted the previous proceedings and she is the one instituting them now. It is said that she is acting as the DPP yet there are two senior officers above her.
“In the confusion of what is happening in the DPP’s office, her independence is questionable.
“We ask that you refer the question to the High Court to determine whether the person who gave the instructions is independent and impartial.”
Advocate Teele also said there was need for the High Court to decide on the legality of the charges, further alleging controversy on the procedure followed.
It did not make sense that the summons were signed on 8 September 2014, he argued, while the directive was issued on 12 September 2014.
“Who had given the directive to issue the summons?” he queried.
Prosecutor Mr Mahanyele asked for postponement of the case to Friday for him to respond to the objection.
However, on Friday the case failed to proceed because Mr Mahanyele was reported to have gone out of Maseru on other work-related matters.
In the meantime, the charges remain unread to the accused.
But as read in their first brief appearance in court last month, the accused were charged with contravening Section 68(1) read with section 109 of the Penal Code Act, No.6 of 2010.
“During or about 15 March 2013, in or near Maseru, the accused did unlawfully and with intent to defraud, misrepresent to the Government of Lesotho and/or Minister of Finance that the M53, 095, 027.00 which the accused requested from the Ministry of Finance and was allocated, was for the procurement of Yellow plant and its insurance for Maseru City Council,” reads the charge.
“Alternatively, the accused failed to reveal to the Minister of Finance, information that they ought to have disclosed, that they had already obtained the M53, 095,027.00.”
This, the prosecution says, was done with the intent that the Finance minister should act upon the said misrepresentation and “as a result of the said misrepresentation or non-disclosure, the Minister of Finance granted the waiver for the procurement of New Caterpillars worth M38, 057, 760.00 which waiver was used as a pretext for the unlawful and wrongful expenditure and use of the M53, 095, 027.00,” further reads the charge.