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Kamoli, Mokhosi wait on High court

Mohalenyane Phakela / Nat Molomo

THE case in which murder-accused former Defence minister Tšeliso Mokhosi, former army commander Tlali Kamoli and 14 other former members of different security agencies are seeking the nullification of the appointment of foreign judges to handle their cases has been postponed to 14 March 2019.

This was done to allow the lawyers of the applicants and the respondents to file all the documents needed for the case.

The decision to postpone the case was reached by three High Court judges, namely, Thamsanqa Nomngcongo, Moroke Mokhesi and Lebohang Molete after one of the applicants’ lawyers, Advocate Karabo Mohau KC, notified the court that he needed time to read and reply the answering affidavit submitted by one of the respondents’ lawyers, Adv Tekane Maqakachane.

Adv Mohau KC was given until 7 March 2019 to file his supplementary heads of argument while Adv Maqakachane was given until 12 March 2019 to file his response to Adv Mohau.

This was after Adv Mohau KC had asked the court to give him time to consult with his clients before he could respond to Adv Maqakachane’s answering affidavit.

“Mr Maqakachane had initially indicated that he would argue without an answering affidavit and I even sent him my heads of argument,” Adv Mohau KC said, adding, “and so I was surprised when I was served with his answering affidavit”.

“If the affidavit is part of the court records, I pray that the applicants be given chance to reply as we cannot take the risk of continuing with the matter without understanding Mr Maqakachane’s affidavit.

The applicants want the foreign judges withdrawn because they believe the government played a pivotal role in their recruitment to ensure that they go to prison. They argue that the judiciary should have been left alone to do its own recruitment independently.

On his part, Adv Maqakachane is opposing the matter on grounds that there is no evidence of the government interference in the recruitment of foreign judges.

In postponing the matter to 14 March 2019, the three judges also promised to treat the matter with the urgency it deserved.

“The applicants should file their heads of argument by 7 March 2019 while the respondents should file before 12 March.

“When matters are before the court, we have to deal with them once and for all. Everybody wants the criminal trials concerned with this matter to proceed therefore we have to hear the matter urgently,” Justice Nomngcongo said on behalf of the judges.

On 15 February 2019, Mr Mokhosi, Lt-Gen Kamoli and 14 other former members of different security agencies filed an urgent application seeking the nullification of the appointment of foreign judges to handle their cases.

The first of the five foreign judges to try cases involving politicians and members of the security agencies, Zimbabwe’s Justice Charles Hungwe, has already presided over cases in the country.

Justice Hungwe was sworn-in at the High Court on 15 January 2019 and on that same day, he got down to work, setting dates for the various criminal cases which will begin when the other foreign judges jet into the country before the end of this month.

But ahead of the arrival of the remaining foreign judges and the commencement of the trials, Mr Mokhosi, Lieutenant General Kamoli and 14 others filed their court application on 15 February 2019.

The other 14 applicants are 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.

In terms of the interim relief, they want Justice Hungwe and the other foreign judges to be interdicted and prevented from commencing criminal proceedings until the finalisation of their main court application.

“The first respondent (Justice Hungwe) and/or any foreign judge who has been appointed to preside over criminal proceedings… (should) be interdicted and prevented from convening and commencing criminal proceedings pending finalisation of these proceedings,” part of the application states.

“These criminal trials are stayed (deferred) until finalisation of the final relief (nullification of foreign judges’ appointments).

“It is declared that the appointment of the first respondent or any foreign judges specifically to preside over criminal proceedings was made in violation of the national constitution and is therefore null and void and of no force and effect.

“The recommendation by the Judicial Service Commission to appoint foreign judges to His Majesty the King (Letsie III) and the subsequent appointment of the first respondent (Justice Hungwe) or any foreign judge, pursuant to the initiatives of the executive, violates the provisions of section 132 (8) of the constitution which provides that in the exercise of its functions under the constitution, the Judicial Service Commission shall not be subject to the direction or control of any other person or authority.”

The applicants further state that the appointment of foreign judges violates “provisions of section 12 (1) of the Constitution which guarantees the right to fair trial, section 118 (3) of the constitution which guarantees the independence of the judiciary and are therefore null and void and of no force and effect”.

In his affidavit submitted as part of the application, Lt-Gen Kamoli said, “I aver that I appeared (last month) before a foreign judge (Justice Charles Hungwe) whose particulars I do not know. The Honourable judge indicated in an open court that he has learned about my attitude”.

“In this regard, I shall request the copy of the record to be transcribed as the exchange between us showed a judge who is not independent but has prejudged matters and accused persons he is yet to try.

“I aver that similar position applies to his colleagues who were appointed under similar circumstances. I believe that I am accurate in that analysis. I was surprised by this particular judge’s attitude towards me when I requested clarity over simple things such as why the (Assistant) High Registrar (Staford Sharite) was allowed to give me documents when my counsel was denied that opportunity,” Lt-Gen Kamoli states.

Mr Mokhosi also states in his affidavit that foreign judges had been appointed to deliver verdict in line with the government’s desire to have them jailed.

Mr Mokhosi says that that he and his co-applicants are anxious to have their “criminal trials proceed on time and with minimum interruptions”.

“However, we have been compelled to bring the present application owing to our well-founded apprehension that should various criminal trials proceed before Mr Justice Charles Hungwe and other foreign judges appointed specifically for such cases, our right to a fair trial before an independent and impartial court would have been violated.

“I wish to indicate that we object to the government made up of politicians like myself initiating the appointment of judges because we suspect that…the government is desirous to have certain outcomes.

“In particular I am clear in mind that the government wants us to be convicted at all costs and receive the harshest possible sentences.

“The participation of the Attorney General, the legal adviser of the executive and the Director of Public Prosecutions, the prosecuting authority in our criminal trials, in the recruitment of (foreign) judges gives a reasonable impression that certain judges are picked to achieve certain desired criminal trial outcomes.

Lt-Gen Kamoli 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 faces charges of murdering 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 still detained at the Maseru Maximum Security Prison.

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