…as Justice Hungwe dismisses his acquittal bid
Moorosi Tsiane
INCARCERATED former army commander, Lieutenant General Tlali Kamoli, will spend his ninth consecutive Christmas behind bars after the court dismissed his bid to be acquitted in the trial of the 2015 murder of his successor Lt-Gen Maaparankoe Mahao.
This after Justice Charles Hungwe dismissed his application for acquittal on Thursday, insisting that Kamoli had a case to answer.
Kamoli and eight other soldiers had sought to be discharged under Section 175(3) of the Criminal Procedure and Evidence Act of 1981, arguing that the prosecution had failed to establish a case strong enough to warrant their continued prosecution.
When the matter was argued on Tuesday before Justice Charles Hungwe, the accused maintained that after years of proceedings, the Crown had failed to link them to the alleged crimes.
Kamoli’s lawyer, Advocate Letuka Molati, argued that the prosecution had not proven the essential elements connecting his client to the murder.
“My Lord, the Crown wants Kamoli to testify simply because, at the time the deceased met his death, he had returned to work and was the commander. But in so far as these charges are concerned, have the elements of the respective offences been proven? Key elements — such as absence at the scene and lack of orders to arrest those suspected of mutiny — have not been proven at all,” submitted Adv Molati.
He reminded the court that Retired Major General Lineo Poopa, a state witness, had testified that the operational order to arrest suspected mutineers was issued by Retired Colonel Thato Phaila, who has since been charged with Lt-Gen Mahao’s murder.
“On 30 May 2022, Major General Poopa testified for the Crown. He stated clearly that the operational order was given by Phaila, who was commander of the team effecting the arrests and responsible for signing related documents. At no point did he refer to Kamoli.
“In the end, the Crown wants Kamoli to answer a case of murder simply because he was at work on the day the deceased was killed. But the question remains — has the evidence proven the charge? We submit, My Lord, that it has not, and therefore Kamoli should be discharged.”
Other defence lawyers — Silas Ratau, Napo Mafaesa, Kabelo Letuka, and Attorney Qhalehang Letsika — also argued that the prosecution had failed to establish a prima facie case against their clients.
Adv Ratau, representing Captain Litekanyo Nyakane, said there was no evidence linking his client to the operation apart from the fact that he drove the vehicle transporting the arresting team.
“There is no evidence that Nyakane participated in any way. The Crown cannot prove his involvement. He was merely the driver of the team authorised by command,” said Adv Ratau.
Mr Letsika, representing Sergeant Lekhooa Moepi, similarly argued that there was no evidence connecting Moepi to the alleged murder.
“None of the 41 witnesses testified that my client participated in planning or executing the killing. The Crown has not made a prima facie case against him,” he said.
Adv Napo Mafaesa, representing Sergeant Motsamai Fako and Corporals Marasi ‘Moleli, Motšoane Machai, and Mohlalefi Seitlheko, made similar submissions.
Adv Kabelo Letuka, for Corporal Tšitso Ramoholi, also asked for his client’s acquittal, saying no evidence connected him to any offence.
Captain Haleo Makara, alleged to have shot Lt-Gen Mahao, did not apply for discharge.
However, Crown Counsel Adv Rethabile Setlojoane maintained that the state had presented sufficient evidence for all the accused to answer the charges.
“The Crown presented enough evidence to require the accused to respond. Their presence at the scene and association with the commission of the crime — under the guise of effecting arrests —establishes a common purpose,” said Adv Setlojoane.
He added that LDF Commander Lt-Gen Mojalefa Letsoela had testified that the operational order to arrest the alleged mutineers, which resulted in Lt-Gen Mahao’s murder, was invalid.
“As of 25 June 2015, when Lt-Gen Mahao was killed, Kamoli, as LDF Commander, was aware of the illegal order but did nothing to stop it. Evidence also shows that Hashatsi was seen laughing at the scene after Captain Makara shot the deceased. None of the accused disassociated themselves from these acts. We therefore submit that this application should be dismissed,” he argued.
In his ruling on Thursday, Justice Hungwe held that the prosecution had successfully established a prima facie case against all the accused, warranting the continuation of the trial.
The judge said his conclusion followed a thorough review of testimonies from 41 prosecution witnesses, which convinced the court that the Crown had laid a sufficient foundation for the matter to proceed.
“At this stage of the trial, the evidence need not establish proof beyond reasonable doubt, but only that the alleged crime was committed and committed by none other than the accused,” Justice Hungwe said.
“It is trite law that the standard which the Crown’s evidence must meet at the close of its case to avoid discharge is lower than that required for conviction. I am satisfied that the threshold of a prima facie case has been met. Unless the prosecution’s evidence was so utterly shattered under cross-examination that no reasonable person might convict on it, the application for discharge cannot succeed. In this matter, I am unable to so conclude.”
Accordingly, the court dismissed the application, ruling that Kamoli and his co-accused must continue to answer to charges including murder, attempted murder, conspiracy, malicious damage to property, and theft.
The accused, who have pleaded not guilty, now brace themselves for the defence stage of the trial, which resumes on 12 January 2026.