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Legal showdown over detained soldiers


High Court sets date for army’s contempt lawsuit 

Tefo Tefo

A case in which 22 soldiers detained at Maseru Maximum Security Prison want army  commander Lieutenant-General Tlali Komoli charged for contempt, is set for the High Court on Friday this week.

The soldiers approached the court after Lt-Gen Kamoli failed to release them in violation of a High Court ruling issued by Justice Molefi Makara on 5 October.

The soldiers were detained between May and June this year on suspicion they were part of a plot to topple the Lesotho Defence Force (LDF) command. Their mutiny trial started before the Court Martial in Maseru on 5 October but the soldiers are challenging their confinement as the High Court ruled they should be placed under open arrest and attend their trial while coming from home.

In their application, the soldiers allege Lt-Gen Kamoli’s failure to release them was contemptuous of the court ruling.

In their application filed before the High Court on Friday, the soldiers say Lt-Gen Kamoli could avoid the contempt charge if he releases them immediately.

The detainees also seek an order suspending warrants issued by the LDF on 6 October, arguing they are “irregular and unlawful”.

The said warrants authorise the soldiers’ detention while attending the Court Martial proceedings.

The captives also want the High Court to suspend the Court Martial proceedings until their application has been finalised.

Other respondents in the lawsuit are the president of the Court Martial Major-General Mojalefa Letsoela, Court Martial Prosecutor Advocate Roland Suhr and Attorney General King’s Counsel (KC) Tšokolo Makhethe.

In his affidavit to support the application, one of the detainees, Brigadier Thoriso Motoa, notes: “I was arrested on 1 June 2015 and have since been detained under close arrest. Later on, I and my co-applicants, received charges of mutiny.

“On 10 July 2015, we were served with a directive in terms of Regulation 11(2) of the Defence Force (Discipline) Regulations No 29 of 1998. The said directive informed us that we shall not be released from custody pending trial by a Court Martial.”

Brig Motoa further notes a month later, the detainees were given another document stating reasons for their detention, but they filed an application before the High Court for their release.

The affidavit continues: “Judgment in this application was delivered in an open court, and in the presence of legal representatives of the respondents, on the 5th of October 2015.

“The first respondent (army commander) and his agents did not comply with the clear terms of the court order.

“They kept us under close arrest, and continued to bring us to the Court Martial in leg restraints, and made us sit in the court still with the leg chains on us.”

The brigadier alleges on Tuesday evening—a day after the judgment was delivered—the detainees were served with the remand warrants which invited them “to make representations within 48 hours after receipt of same as to why we should not be kept under close arrest until the Court Martial proceedings have been completed”.

“Regarding the contents of these remand warrants, I respectfully draw this honourable court’s attention to the fact that they state similar reasons for keeping us under close arrest.

“The only differences are our ranks.”

He noted the reasons given for their detention are to keep them safe from some of the alleged mutiny targets, preventing them from committing any military offence, ensuring they do not interfere with witnesses, and influence other soldiers from being sympathetic to them, as well as the seriousness of the offence they are facing.

Brig Motoa further indicates in the affidavit: “The review application that resulted in the issuing of an order setting side our close arrest, came about as a result of a challenge by us that the close arrest was contrary to the provisions of Regulation 10.

“It is for that reason that this honourable court set aside the close arrest order.

“The respondents ought to have done the right thing by removing the barriers which placed us under close arrest before trying to correct the illegality by first refusing to obey the court order, and secondly, by issuing us with the remand warrants.”

Explaining how the army boss is allegedly in contempt, Brig Motoa states: “As earlier stated, there is an order of the court.

“That order was served on the respondents and the respondents understood the said order hence they quickly took the steps they took by issuing us with remand warrants.

“But failure to do as the court ordered was and remains contempt.”

He also argued it would be unfair and unlawful if the Court Martial proceedings continue when their detention circumstances have not been finalised.

“I respectfully aver that it would be unlawful and unfair to allow the proceedings of the court to continue while our presence there under the circumstances where we are not under open arrest, prevails.

“We sit throughout the proceedings with our feet in chains. Most importantly, the opportunity to properly give instructions to our lawyers is scarce.

“As a matter of fact, it is a standing order of the military that our lawyers can consult from the morning hours until 3pm,” he further noted.

However, the respondents on Friday also filed their notice to oppose the application.

A lawyer representing the respondents, Attorney Qhalehang Letsika, yesterday told the Sunday Express: “We are supposed to file our answering papers by the 14th October and the matter will be argued on Friday, 16 October.”

The 22 soldiers in question are Brigadier Motoa, Colonel Stemere, Colonel Kolisang, Major Makhetha, Captain Chaka, Second-Lieutenant Mohasi, Sergeant Mokhobo, Sergeant Semakale, Sergeant Lekhabunyane, Corporal Mokhoro, Corporal Letsilane, Corporal Lipoto, Corporal Manaka, Corporal Mohatlane, Corporal Chele, Corporal Motseko, Lance-Corporal Jobo, Lance-Corporal Molefi, Lance-Corporal Makhooane, Private Pama, Private Bolofo and Private Ralitlemo.

A total of 23 LDF members are facing the mutiny charges, including Brigadier Thoso Mareka, who was released from the prison due to ill-health. Colonel Mareka was placed under open arrest upon his release from Maseru Maximum Security Prison, two months ago.

The soldiers are being represented by Advocate Anna-Marie de Vos (Senior Counsel) from South Africa, and Advocates Haae Phoofolo (KC), Christopher Lephuthing, and Koili Ndebele. They are instructed by Attorneys Khotso Nthontho and Tumisang Mosotho.

Advocate Motiea Teele (KC) and Attorney Letsika are the Crown counsel.

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