Mohalenyane Phakela

MURDER-ACCUSED former army commander Tlali Kamoli, former Defence and National security minister Tšeliso Mokhosi and 14 others will have to wait until 2 August 2019 to know if their Court of Appeal application to stop the recruitment of foreign judges to try their cases succeeds.

It had been expected that the apex court would deliver judgement on 26 July 2019 but this was not be as the five member apex court bench said the matter was so important that judgement could not handed down overnight.

The case was among four applications heard by the apex court in its special sitting from 22 to 26 July 2019. The Court of Appeal bench comprised of the court’s president Kananelo Mosito as the presiding judge, justices Petrus Damaseb (from Namibia), Semapo Peete (Lesotho), Moses Chinhengo and Tafuma Mtshiya (both from Zimbabwe).

The 2 August 2019 Court of Appeal judgement will determine whether or not Zimbabwean judge, Justice Charles Hungwe and other foreign judges will preside over the criminal trials of former and serving members of the security agencies as well as politicians like Mr Mokhosi. The trials are due to get underway in the High Court on 5 August 2019, hence the need for the apex court judgement to be delivered at the earliest instance.

In reserving judgement on Wednesday, Justice Mosito said they needed time to deliberate and write judgement as Lt-Gen Kamoli and others’ application was a “matter of high importance”.

“This is a too much of an important matter which cannot be decided on overnight therefore judgement is reserved until 2 August. We will make arrangements for it to be handed down,” Justice Mosito said after listening to arguments from the applicants’ lawyer, Advocate Karabo Mohau, and the respondents’ lawyer, Advocate Tekane Maqakachane.

The other 14 applicants are Major Pitso Ramoepane, Thabo Tšukulu, Mothibeli Mofolo, Mabitle Matona, Rapele Mphaki, Pitso Ramoepana, Lekhooa Moepi, Mahlele Moeletsi, Mahlomola Makhoali, Nthatakane Motanyane, Motšoane Machai, Liphapang Sefako, Nemase Faso, Tieho Tikiso and Litekanyo Nyakane.

They want the appointment of the foreign judges by the Judicial Service Commission (JSC) to be nullified on the grounds that it is unconstitutional.

The 16, who lost their initial 15 February 2019 Constitutional Court application on 2 May this year, subsequently petitioned the Court of Appeal, arguing that the Constitutional Court misdirected itself when it dismissed their initial application.

In the apex court, Adv Mohau argued that the recruitment of foreign judges should have been left to the discretion of the chief justice.

“We submit that the decision to seek additional judges was not initiated by the chief justice although that duty remains exclusively her right in terms of Section 125 of the national constitution.

“She (the now suspended Chief Justice Nthomeng Majara) could have advised the King if she felt she needed additional manpower to hear the eight cases that are said to be high profile. It is further said in the attorney general’s affidavit that the Chief Justice eventually endorsed the recruitment of foreign judges, which means she was not the one who initiated the process.

“There is a document attached to the papers which shows that executive together with Southern African Development Community (SADC) member states agreed to recruit foreign judges and the Judicial Service Commission, which by law has the mandate to recruit judges, only did the vetting. The process was fundamentally flawed as JSC was hamstrung on how to identify judges,” Adv Mohau argued.

Justice Damaseb replied by saying there was no way that a judge could preside over cases in another country without the involvement of the government of that judge’s own country and the government of the country that required his services.

“We know that in 2014 and Lesotho entered into an agreement with other SADC member states to bring stability into the country and it was not the duty of the chief justice to negotiate with the member states to provide judges,” Justice Damaseb said.

However, Adv Mohau insisted that the chief justice should have been the one who initiated the recruitment of the foreign judges. He argued that the executive wanted to secure conviction of the suspects as some of the alleged crimes resulted in damage to their property, hence they cherry-picked the foreign judges themselves.

Adv Maqakachane countered by saying that the applicants’ submissions lacked evidence.

“There is no evidence to establish facts upon which this application was made as the inferences leveled by applicants are not based on any facts. The document the applicants are talking about is a conceptual note which maps out and was communicated to all stakeholders including the JSC.

“Furthermore, the applicants wrote to the High Court registrar on 11 January 2019 enquiring about foreign judges as proof that they were in the dark regarding the recruitment process. However, in the same letter, they make inferences that the judges were handpicked by the executive to deliver desired outcomes which include harsh sentences.

“The government stopped at diplomatic arrangement stage to ensure that SADC member states would avail judges and the JSC was left to do the recruitment process on its own, meaning there was not interference,” argued Adv Maqakachane.

It was then that the apex court reserved judgement in the case.

Should the application fail, then Lt-Gen Kamoli will stand trial for the 2015 murder of former army commander Lt-Gen Maaparankoe Mahao.

Lt-Gen Kamoli also faces a murder charge stemming from the 30 August 2014 killing of Police Sub-Inspector, Mokheseng Ramahloko.

Sub-Inspector Ramahloko was shot and killed by soldiers during the attempted coup of 30 August 2014 at the police headquarters in Maseru. The soldiers who allegedly acted on the instructions of the then army commander, Lt-Gen Kamoli, also raided several other police stations in Maseru and seized an assortment of weapons.

Lt-Gen Kamoli also faces 14 counts of attempted murder in connection with the 27 January 2014 simultaneous bombings of the Moshoeshoe II homes of First Lady Maesaiah Thabane and the Ha-Abia residence of former police commissioner, Khothatso Tšooana.

He is charged alongside Major Ramoepane, Captain Litekanyo Nyakane, Sergeant Heqoa Malefane and Corporal Mohlalefi Seitlheko.

Major Ramoepane faces a separate murder charge in connection with the 5 September 2017 assassination of army commander Lt-Gen Khoantle Motšomotšo.

Mr Mokhosi has been charged with the murder of Police Constable (PC) Mokalekale Khetheng. He is charged along with former police commissioner Molahlehi Letsoepa and four other police officers.

The other officers are Senior Superintendent Thabo Tšukulu, Superintendent Mothibeli Mofolo, Inspector Mabitle Matona and Police Constable Haleokoe Taasoane who are all currently on suspension from the police service.

Messrs Mokhosi and Letsoepa are in exile while the four officers are detained at the Maseru Maximum Security Prison.

There are also 10 soldiers who stand accused of murdering Lekhoele Noko, Molise Pakela and Khothatso Makibinyane at Setibing, Maseru on 16 May 2017 and dumping their bodies in the Mohale Dam.

The 10 soldiers are Brigadier Rapele Mphaki, Sergeant Lekhooa Moepi, Captain Mahlehle Moeletsi, Lance Corporal Mahlomola Makhoali, Private Nthatakane Motanyane, Motšoane Machai, Tieho Tikiso, Pitso Ramoepana, Liphapang Sefako and Nemase Faso.

The soldiers allegedly kidnapped and murdered the three men after the trio had just been released from police custody where they were detained in connection with a shooting incident that occurred at the Maseru border gate on 13 May 2017.