EIGHT months have passed since the arrest of two Lesotho Defence Force (LDF) officers, Privates Rorisang Moepi and Dumile Tsoanyane in Matatiele, Eastern Cape by their South African National Defence Force (SANDF) counterparts after they allegedly pursued South African rustlers who had allegedly stolen livestock in Lesotho.

They were arrested on 19 July 2020 and detained on charges of illegally entering the neighbouring country, stock theft, robbery and possession of unlicensed firearms and ammunition.

A flurry of diplomatic engagements including a high-powered delegation to South Africa headed by Deputy Prime Minister Mathibeli Mokhothu have all failed to secure the release of the two soldiers.

Over the weekend, Sunday Express (SE) senior reporter Pascalinah Kabi sat down with Foreign Affairs and International Relations ministry Principal Secretary (PS) Retired Colonel Tanki Mothae to understand the challenges the government has encountered in its efforts to secure their freedom. Below are excerpts of the interview.

SE: Two Lesotho soldiers are currently detained in South Africa while awaiting trial. What role, if any, has your ministry played in facilitating their release?

Col Mothae: The Ministry of Foreign Affairs has been trying to negotiate an agreement between the two countries on this issue. There have been several efforts and initiatives which have been undertaken.

Honourable Prime Minister (Moeketsi Majoro) has always been trying on several occasions to get the matter resolved through the Minister of Foreign Affairs (‘Matsepo Ramakoae). In November 2020, we had the Joint Bilateral Commission of Cooperation (JBCC) meeting in Lesotho where the matter was discussed. We explored what needs to be done for the soldiers to be released.

We recently engaged our South African counterparts again but the challenge is that another arm of the South African state, the judiciary, is involved.

The issue of separation of powers has come in and we have to respect that lest we violate our constitutions.

The South African judiciary is seized with the matter. If you are found with weapons in South Africa, as in the case of our soldiers, you have to stand trial.

This notwithstanding the fact that the LDF and SANDF have their bilateral arrangements on cross-border issues. The Lesotho Mounted Police Service (LMPS) and South African Police Service (SAPS) have similar arrangements to manage the cross-border crimes, particularly animal rustling.

The soldiers’ issues should have been dealt with under the same arrangement (allowing them to cross into South Africa in pursuit of suspected criminals). But the matter is now in the hands of the judiciary. It is now being dealt with outside our jurisdiction and that of South Africa’s Department of International Cooperation.

But this does not mean we have given up on the issue. We have to find a workable solution while taking into consideration the legal and constitutional implications of the process for our two countries.

Our interest is to see our soldiers return home even on bail. We can commit to sending them back to South Africa whenever they are required to appear in court until their case has been concluded.

I had a brief discussion with my colleagues in South Africa on the issue last week and we will continue to engage them until we find a way to ensure the matter is resolved.

SE: It has been eight months since the soldiers’ arrest. What is the status of the case?

Col Mothae: They not been tried. They have just been charged and we are waiting for them to be tried and that is not happening. The case was recently referred to the High Court in the Eastern Cape.

There may be factors that we do not know about warranting the numerous postponements but this has gone for far too long. The sooner the trial the better.

The soldiers should have been tried by now if this case was obvious. These postponements are frustrating.

It took a long time before the matter was referred to the High Court and we don’t know how long it will take in the High Court.

It is very unfair that they have been kept this long. If it was in Lesotho, they would have been released by now.

SE: Have your South African counterparts shown any willingness to have the matter expedited to ensure the soldiers are brought back home?

Col Mothae: They appear willing to help. In all my interactions with the department of foreign affairs during the JBCC, the South African authorities seemed eager to ensure that this matter is disposed of.

At the time they were quite busy engaging their colleagues in the department of justice which is where I think we are having a challenge.  I think we need more engagements to get to the bottom of the matter because we have different views on how and why the soldiers have been kept in detention.

This is not the first time a suspected crime has been committed and we have always dealt with cross-border crimes through negotiations. There is a joint operations or liaison committee of police and army officers from Lesotho and South Africa and that system could have been used in this particular matter. There are court martial proceedings. The LDF can try these soldiers in their courts if there is any suspected crime rather than keeping them that side for a suspected crime which we still cannot understand.

But this particular issue is being treated differently (by South Africa). My minister (‘Matsepo Ramakoae) is forever demanding answers.

The prime minister has the same concerns. I know that he has contacted his South African counterpart on a number of occasions about the matter. All of us in government are worried about this matter. We want to know why the soldiers cannot be tried. We demand that the case goes ahead so that we know whether they committed a crime or not.

The government of Lesotho is answerable to the Basotho and Basotho need answers. They need to understand why the soldiers are kept there. Basotho have trust in their soldiers because they know that those soldiers were there to protect the territorial integrity of our country and also protect them from the animal rustling.

I am sure South Africa shares the same view because their soldiers are also deployed to protect their border.

We have to be able to explain to Basotho why we cannot bring the soldiers home. Everyone knows that there is animal rustling in that border area where our soldiers were arrested. That is why we have a robust deployment of our soldiers there.

Our understanding is that our soldiers were doing their job in pursuing the livestock thieves and livestock which had been stolen in Lesotho. But we do not have the answers as to why they arrested.

If their case would be taken to court and disposed of, then there would be clarity as to whether they committed a crime or not.

We would then know how best to address the situation but at this point we don’t have any answers regarding whether or not they committed a crime.

SE: Would it be correct to say that the Lesotho government is disgruntled and unhappy with the way in which its South African counterpart is handling the matter?

Col Mothae: What we are not happy with is that they have kept the soldiers in custody forever and treated them like criminals. We do not believe that those soldiers are criminals.

They haven’t been convicted of any crime for us to start saying they are criminals. They are still our soldiers, let them come home. If South Africa still wants them to stand trial there, we will release them to go there whenever necessary.

We are not happy with their continued detention. We will work tirelessly, using all diplomatic means to convince whoever is responsible to allow us to have our soldiers back. We will do everything that we can. Diplomacy never fails and is never disgruntled. We are ready to talk and convince our counterparts to intervene and help us normalise the situation.

SE: Is there any possibility of the Lesotho government escalating the matter to SADC?

Col Mothae: At the moment I don’t think there is any need to escalate the matter to SADC because we are still able to discuss with South Africa. I think the main obstacle is that there is a separation of powers which makes it difficult for the executive to interfere in what is now a court case.

But I am sure we will eventually resolve this matter. Where there is a will there is a way.