• accused of working with Retired Colonel Phaila in his bid to exonerate Kamoli and others,
• DPP Motinyane blasts Phaila for “unfounded” allegations against prosecution and police

Mohalenyane Phakela

THE Director of Public Prosecutions, (DPP) Hlalefang Motinyane, has accused state witness, Retired Colonel Thato Phaila, of making “unfounded and scurrilous” allegations against the prosecution and police in a bid to get murder-accused former army commander, Tlali Kamoli, and his co-accused off the hook.

Rtd Col Phaila unprocedurally discussed his evidence with his friends in the intelligence community before somersaulting and accusing the prosecution of fabricating his witness statement, DPP Motinyane alleges.

She makes the allegations in her court papers filed to oppose Lieutenant General (Lt-Gen) Kamoli and eight others’ application for the recusal of prosecutors, Shaun Abrahams and ‘Naki Nku, from their trial.

Rtd Col Phaila is the second state witness in Lt-Gen Kamoli and his co-accused’s trial for the 25 June 2015 murder of army of army commander, Maaparankoe Mahao.

His co-accused are Captain Litekanyo Nyakane, Capt Haleo Makara, Sergeant Lekhooa Moepi, Sergeant Motsamai Fako, Corporal Marasi ‘Moleli, Corporal Motšoane Machai, Corporal Mohlalefi Seitlheko and Corporal Tšitso Ramoholi.

Their trial was halted on 8 July 2021 after their lawyers indicated that they intended to file the recusal application.

This after Rtd Col Phaila accused Advocates Abrahams and Nku of twisting his evidence to suit their own interests. He accused Advocates Abrahams, Nku and police investigators of fraudulently amending his witness statement and forcing him to lie.

Lt-Gen Kamoli and his co-accused seized on Rtd Col Phaila’s claims against the prosecution and applied for Advocates Abrahams and Nku’s recusal. In their application filed on Monday, they allege that the prosecutors fabricated evidence in order to ensure that they are convicted and sentenced to death.

They therefore want the court to order “that the second (Abrahams) and third (Nku) respondents be removed as prosecutors in this matter”.

“Alternatively, in the event that the court finds that the third respondent (Nku) is not disqualified, it be declared that she is entitled to continue with the prosecution of this matter.

“… it be declared that the first respondent (Motinyane) is not disqualified to appoint a prosecutor to continue with the trial in this matter. The attorney general be ordered and directed to appoint a prosecutor to continue with the prosecution of the applicants herein,” Lt-Gen Kamoli and his co-applicants pray.

DPP Motinyane, Adv Abrahams and Adv Nku are the first to third respondents respectively in the application that will be heard tomorrow by Justice Hungwe.

When he took to the witness stand on 8 July 2021, Rtd Col Phaila accused Advocates Abrahams, Nku and police investigators of amending his witness statement to suit their own interests.

He also demanded not to be cross-examined by Adv Abrahams, alleging that the prosecutor had threatened to have him harmed if he did not cooperate with the prosecution.

“I want to talk about the prosecution which has been leading my evidence as if I was not their witness,” Retired Colonel Phaila said.

“He (Abrahams) was leading me to where he has an interest. I want to say this today. Even if I die when I walk out of this courtroom, I will die a happy man because I would have told the truth for my country’s sake, so help me God. My evidence has been fabricated and I will tell the truth which he and Adv Nku or the investigators cannot deny. I respected Abrahams and Nku a lot but they are not doing justice to this country.

“He (Abrahams) told me he was an important character in this country who had influence on the government, political leaders, heads of churches, the army, police and National Security Services. He was not alone at the time but with the short lady prosecutor, (Director of Public Prosecutions Adv Hlalefang) Motinyane, and Nku. He said if I cooperated, he would influence the government to release my unpaid gratuities.

“…I therefore ask for the court’s indulgence not to answer Abrahams’ questions because I may get angry and my high blood pressure may shoot up,” Rtd Col Phaila said.

However, in her court papers, DPP Motinyane dismisses Rtd Col Phaila’s allegations. She says Rtd Col Phaila gave his statements freely without any duress from the prosecutors or the police.

DPP Motinyane is supported by former Thaba Tseka district administrator and commissioner of oaths, Masheane Raphoolo, who said he Rtd Col Phaila came to him to authenticate his affidavit on 16 February 2019. Mr Raphoolo, who claims to be related to Rtd Col Phaila, said the latter was in the company of police officers when he came to him.

He said Rtd Col Phaila “looked happy, cracked jokes with the police” and even read out his own statement before asking him to authenticate it.

The investigating officer, one Senior Inspector Thamae, corroborates Mr Raphoolo’s allegations. In his own affidavit filed in support DPP Motinyane, Senior Inspector Thamae states that he took Rtd Col Phaila’s statement in 2019 and subsequently accompanied him to sign his affidavit before Mr Raphoolo.

He said he and two other police officers, only identified as Inspector Nyooko and Sergeant Masupha, overhead Rtd Col Phaila addressing Mr Raphoolo as his cousin and saying, “this is my evidence, please commission it for me”.

He said he and fellow officers waited at the reception while Mr Raphoolo went in with Rtd Col Phaila who later returned with a signed document.

In her court papers, DPP Motinyane argues that Rtd Col Phaila’s claims about the fabrication of his witness’ statement and other allegations against the prosecution and police are only being made as an “afterthought”.

This was most likely after he had discussed his testimony with his friends in the intelligence, DPP Motinyane argues.

She states that Rtd Col Phaila had, in his own words, told the court that he had sought advice regarding his testimony from other people.

She quotes Rtd Col Phaila as saying, “I also learned, in asking my friends in the intelligence, that even at the end (of testifying) a witness can still disagree with the prosecutor that the evidence has been fabricated”.

“Col Phaila initially seemed to not have experienced any difficulty whatsoever when his evidence in chief was led by the second respondent (Abrahams), DPP Motinyane states in her court papers.

“In fact, Col Phaila had not raised a single objection nor had he levelled any allegation against anyone for that matter either before or immediately after his evidence in chief.

“At no stage during cross-examination (by Abrahams) did he unequivocally state that the content of his first and second statements were fabricated. At no stage during cross-examination did Col Phaila unequivocally state that anyone compelled him to sign the statement nor that he did not sign his statement freely and voluntarily.

“It is only when he had to be re-examined by the second respondent (Abrahams) that Col Phaila provided a speech in which he made unfounded scurrilous allegations against me, the second and third respondents and the police. In this regard, Col Phaila’s conduct is both careless and regrettable.

“Col Phaila did not even make these utterances immediately after he was confronted with allegations of his interactions with the ninth applicant (Lt-Gen Kamoli)’s wife whilst he was under oath and had yet to be cross-examined. It is submitted that it would be reasonable for one to gain the perception that the allegations levelled are nothing but an afterthought and reactionary.

“A reasonable witness, in the position of Col Phaila, would have raised any concerns from the onset of his or her evidence and not prior to re-examination. It is respectfully submitted that it is abundantly evident from Col Phaila’s speech that he discussed his evidence with other people, notably his friends from the intelligence community,” DPP Motinyane states.

The DPP also rubbishes Rtd Col Phaila’s allegations that Adv Abrahams ever said he had any influence in the country.

“Col Phaila was first interviewed by the second and third respondents in my presence and in the presence of members of the investigating team from the Lesotho Mounted Police Service (LMPS), most notably, Senior Inspector Thamae on 6 December 2018.

“At no stage during that interview, at which I was present, did the second respondent (Abrahams) state that he has influence on politicians, the courts, the churches and the police. In fact, the second respondent has never alluded to having any influence on anyone.

“Both the third respondent (Nku) and Senior Inspector Thamae have categorically denied that the second respondent at any stage made any such assertions during the interview with Col Phaila.

“In addition, at no stage did the second respondent interview Col Phaila alone. The allegations also do not resonate with the professional character of the second respondent,” DPP Motinyane states. She adds that both Advocates Abrahams and Nku have vast litigation experience and have remained objective hence why she sought their services. She therefore asks the court to dismiss Lt-Gen Kamoli and his co-accused’s application of their recusal.

Rtd Col Phaila began testifying two weeks ago. Despite being roped in by the state as a witness, he has attempted to exonerate Lt-Gen Kamoli and his co-accused.

He has gone as far as claiming that the current Lesotho Defence Force (LDF) command is composed of people who were rewarded for mutinying against Lt-Gen Kamoli’s command.

This despite that a 2016 SADC Commission of Inquiry established that there was no such mutiny and instead recommended the prosecution of all those suspected of murdering Lt-Gen Mahao in Mokema, Maseru in 2015.

Rtd Col Phaila has also set tongues wagging after being seen boarding Lieutenant General (Lt-Gen) Kamoli’s vehicle a fortnight ago.

Last Wednesday, Adv Abrahams asked him if he was close to the Kamoli family. Adv Abrahams also asked whether Rtd Col Phaila had boarded Lt-Gen Kamoli’s car, if Ms Kamoli had bought him lunch and whether he had slept at the Kamoli residence.

Rtd Col Phaila said he was forced to board the Kamoli vehicle because he was being followed by soldiers who were suspected of mutiny against Lt-Gen Kamoli’s command in 2015. Rtd Col Phaila was part of the team which arrested the “mutiny” suspects in 2015.

He accused Adv Abrahams of seeking to tarnish his reputation with the allegations of his closeness to Lt-Gen Kamoli. He even let

“I am not happy that the Crown says I was afforded lunch and accommodation by Mrs Kamoli. I want them to prove that. It is tarnishing my image. This is Lesotho and it is definitely going to appear on social media tonight that I was fed by Mrs Kamoli. I work with him (Adv Abrahams) and he should have asked me,” Rtd Col Phaila said.

Justice Hungwe then cautioned Rtd Col Phaila on the need for him to be honest in replying to Adv Abrahams’ questions.

“Seeing you getting into the (Kamoli) vehicle could raise serious suspicions so what the Crown did was to afford you an opportunity to clear your name. Focus on the questions that the counsel put to you. Try to answer them as honestly as possible,” Justice Hungwe said.