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‘Maesaiah’s bail revoked

  • as Court of Appeal savages Justice Mahase and DPP Motinyane for their roles in “unprocedurally” granting her bail.
  • decision means former first lady should be jailed pending a fresh bail application.   
  • likelihood she could interfere or even kill witnesses if she remains free…

Mohalenyane Phakela

ALMOST four months after she was granted bail under highly controversial circumstances, murder-accused former First Lady ‘Maesaiah Thabane is now poised to be put behind bars. This after the Court of Appeal on Friday nullified the M1000 bail she was granted by Acting Chief Justice ‘Maseforo Mahase on 5 February 2020 because it was unprocedurally done without any due consideration of the seriousness of the crime she is accused of.

In setting aside the bail, the apex court ruled that the High Court should hear ‘Maesaiah’s bail application afresh. This time under a different judge and not Justice Mahase.

This means that until the bail application is heard afresh, ‘Maesaiah should be jailed as she cannot legally apply for bail while outside prison. In fact, the police are already on the hunt for her.

Deputy Police Commissioner (DCP) Paseka Mokete told the Sunday Express yesterday they were now searching for Ms ‘Maesaiah with a view to handing her over to the Lesotho Correctional Service (LCS) for detention until the fresh bail trial is held. She is said to be in South Africa on undisclosed business.

‘Maesaiah stands accused of the 14 June 2017 murder of former Prime Minister Thomas Thabane’s ex-wife, Lipolelo. She has also been charged with the attempted murder of Thato Sibolla, with whom Lipolelo had been travelling, when she was gunned down in cold blood at Ha-’Masana, Maseru. Ms Sibolla sustained some injuries in the incident which occurred just two days before Dr Thabane’s inauguration for his second stint as premier.

Mr Thabane has been charged with the same crimes but he is yet to appear alongside ‘Maesaiah after he was on 26 February 2020 granted leave by senior resident magistrate Phethise Motanyane to file a Constitutional Court application to stop the courts from trying him for the murder while he remained in office as premier.

But Mr Thabane is yet to file the said application. Even if he does so now, it would be mere academic after he was forced out of office by his own All Basotho Convention (ABC) party on 11 May 2020.

Shortly after being charged and remanded in custody by Maseru magistrate Nthabiseng Moopisa on 5 February 2020, Ms Thabane was granted bail by acting chief justice, ‘Maseforo Mahase, under highly controversial circumstances.

In its Friday judgement, the apex court cast serious aspersions on the character of ‘Maesaiah, suggesting there was a likelihood she could interfere or even kill one of the witnesses, Ms Sibolla.

Aggrieved by Justice Mahase’s bail decision, Ms Sibolla had teamed up with Mr Thabane’s grandson, Thomas Thabane Jr, and two others to petition the Court of Appeal to revoke the bail. Thabane Jr is the son of Mr Thabane’s second son, Potlako Thabane. They were joined in the apex court application by Mr Thabane’s nephews, Khauhelo Molapo and Thuto Makhooane.

Justice Mahase, Ms Thabane, the Director of Public Prosecutions (DPP) Advocate Hlalefang Motinyane, Attorney General Advocate Haae Phoofolo and Police Commissioner Holomo Molibeli were the first to fifth respondents respectively in the apex court application.

The appeal was heard on 20 May 2020 by Justices Johann Van der Westhuizen (from South Africa), Petrus Damaseb (Namibia) and Moses Chinhengo (Zimbabwe).

Their verdict was read out on Friday by Court of Appeal president Justice Kananelo Mosito who said, “the decision of the High Court to grant bail to the second respondent (‘Maesaiah) is set aside and the bail is referred back to the High Court to be determined by a judge other than the first respondent (Justice Mahase)”.

“The applicants must file papers opposing the (bail) petition, should they wish to do so, within three days from the date of this order. The petitioner must file her replying papers within three days of the service of the applicants’ papers on her. Should the third respondent (DPP Motinyane) wish to file papers, it must be done within three days of the service of the applicants’ papers on her office.

“The High Court is directed to enrol the matter for hearing in open court on the basis of urgency. The third respondent must pay the applicants’ costs (in the review).”

The bail ruling totally vindicates DCP Mokete who has publicly stated that the decision to free ‘Maesaiah was rigged and fraudlent. Though the point was not presented and argued in court, it is now known that Justice Mahase should not even have heard ‘Maesaiah’s bail application in the first place as she was not on duty for bail deliberations that week.  Justice Keketso Moahloli was the judge on call but was side-stepped by Justice Mahase.

She stands accused of having granted the former first lady bail without giving the state an adequate opportunity to oppose it. The police have said they had planned to oppose bail because they believed ‘Maesaiah was a flight risk as she had already skipped the country after being called in for questioning in January 2020. Now that she had been formally charged, she would have reason to abscond permanently, the police had wanted to argue. But they were not given a chance as the bail proceedings were apparently stampeded to benefit ‘Maesaiah.

The bail was granted at about 5.30 pm on 5 February 2020 well after the High Court’s accounts department, which receipts bail cash, had closed at 3.30pm. Instead of being kept in custody pending the payment of the bail money the next day, ‘Maesaiah was allowed to go home, a decision criticised as a mockery of justice. The bail money was only paid afterwards when ‘Maesaiah was already at home. Assuming she did not have the bail money, it means she would have been a free woman anyway.

The Court of Appeal once again delivered a scathing assessment of Justice Mahase saying there had been “gross irregularities” in the manner she had conducted the bail hearing.  The Court of Appeal last year chided Judge Mahase for bias and banned her from hearing all cases involving the power struggle between ousted premier Thomas Thabane, whom the judge routinely favoured, and his deputy Professor Nqosa Mahao.  All her decisions in the ABC power struggles were overturned by the appeal court.

In its latest judgment, the apex court said Judge Mahase had acted with “unusual speed” in her decision to grant ‘Maesaiah’s bail. She did not “exercise her mind properly”. She had also failed to “exercise her discretion judiciously” resulting in the “incomplete and insufficient consideration of relevant issues”.

The judges also blasted DPP Motinyane for her failure to lodge a comprehensive application opposing ‘Maesaiah’s bail. She is criticised for merely concentrating on the issue of ‘Maesaiah not being a flight risk while ignoring more critical issues including the submissions by DCP Mokete and the police’s legal department that ‘Maesaiah could even kill Ms Sibolla and interfere with witnesses.

Such omissions were “fatal” as they had resulted in a flawed judgement by Justice Mahase, the apex court  said. The court said despite DPP Motinyane’s omissions, Justice Mahase was still “duty-bound to inquire as to what she needed to know” to make an informed decision.

“At the heart of this matter is the question of whether the High Court exercised its discretion judiciously by applying its mind to all relevant factors. In order to do so, the Acting Chief Justice needed to be properly informed by the representatives of the parties before her. In so far as they did not sufficiently assist her, she was duty-bound to inquire as to what she needed to know.

“Given the status of the third respondent (DPP Motinyane) and her representatives as officers of the court, with the crucial responsibility of prosecuting and deciding issues without fear, favour or prejudice, it might have been more helpful to this court if the third respondent (DPP Motinyane) assisted the court neutrally, with all the facts at its disposal, rather than — keenly it seems — opposing the present application, alongside the second respondent (‘Maesaiah),” the apex court said.

The judges also cast serious aspersions on the character of ‘Maesaiah. They suggested that if she remained free on bail, there was a possibility she could even kill Ms Sibolla to stop her testifying against her.

“According to the counsel (of DPP Motinyane), only the flight-risk issue was discussed…

“That the possibility of interference with evidence — and particularly with potential witnesses — was not duly considered, is a serious oversight. To intimidate and even kill witnesses expected to testify in upcoming trials is not uncommon. The fourth applicant (Ms Sibolla) accompanied the deceased in her car even when the killing took place. She was an eye-witness. In her affidavit, she expresses profound fear for her life.

“The second respondent (‘Maesaiah) was allegedly an influential and powerful person in her society. In an affidavit, DCP Paseka Mokete states that immediately after the remand of the second respondent (‘Maesaiah) he informed the representative of the third respondent (DPP Motinyane), that he would ‘vigorously oppose’ the bail application because she was a flight-risk, she was a ‘very dangerous person who is capable of recruiting assassins to kill … for her own benefit and witnesses in the case were at high risk’. Senior Superintendent Mamello Ntsane (head of police legal services) echoed similar sentiments which were not put before the Acting Chief Justice.

“This vacuum in the proceedings of the High Court is almost unthinkable but indeed fatal. It constitutes a gross irregularity and indicates that the High Court did not apply its mind properly and exercise its mind properly and exercise its discretion judiciously.

“There is no indication that the prospects of conviction were interrogated but it is unnecessary to proceed to that question. Other factors strengthen this conclusion of an incomplete and insufficient consideration of relevant issues.

“The proceedings took place in chambers instead of in an open court. They happened with highly unusual speed. No witnesses were called…

“The reasons for granting of bail would have done much not only to assist this court but meet the concerns of the applicants and to allow transparency for the people of Lesotho who are interested in legal events. Courts are supposed to give reasons for their decisions. The Acting Chief Justice had every opportunity and more than three months to furnish reasons but did not do so.”

‘Maesaiah had also argued that Ms Sibolla and others did not have the legal standing to challenge her bail, saying this should have been done by the prosecution. However, this was dismissed by the apex court which ruled that as a victim, Ms Sibolla had an interest in the matter and was therefore legally entitled to oppose the bail.

“She (Ms Sibolla) was a friend of the deceased, was in her company when she was shot and is an eye-witness highly likely to testify in court. Her safety is at stake. She fears for her life and limb. Her constitutional and internationally recognised rights to life, human dignity, security and bodily integrity are under threat. She relied on the police and the third respondent (DPP) to guard over her interest. Yet the third respondent — “indifferently” or otherwise — quickly withdrew opposition to bail in the face of what was perceived as the Acting Chief Justice’s preference, without bringing the strong views of the police to the attention of the High Court…

“A criminal justice system based on constitutionalism and the recognition of fundamental rights cannot deny someone in the position of the fourth applicant the right to ask a court of appeal to review a decision to grant bail to a murder accused. At least the fourth respondent has locus standi (legal authority). It is not necessary to reach a decision on others,” the apex court said.

The verdict was immediately welcomed by the applicants’ lawyer, Attorney Kuili Ndebele, who said the judgement meant that ‘Maesaiah remained “an arrested person” who ought to be in custody awaiting trial.

“The court was clear that the bail has been set aside and this means that the bail petitioner remains an arrested person whose bail is yet to be determined. She cannot apply for bail while she is free (out of prison),” Mr Ndebele said.

DCP Mokete said the police were still searching for Ms ‘Maesaiah with a view to having her locked up. He said they visited her home on Friday and did not find her there. They had heard she could be in South Africa on some undisclosed business.

“We did not find ‘M’e ‘Maesaiah at her home yesterday and our search is still continuing because we have a responsibility to hand her over to the correctional service institution.

“We learnt that she may be in Bloemfontein and we are still trying to establish the veracity of those claims and what business she has there. If we find that she is evading justice, then we will apply for her return although it will be a process,” DCP Mokete said.

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