Mohalenyane Phakela

FORMER army commander Lieutenant General (Lt-Gen) Tlali Kamoli and nine other soldiers’ trial for the June 2015 murder of former army commander Lt-Gen Maaparankoe Mahao will no longer begin tomorrow.

It is not even clear when it will finally begin due to the 10 soldiers’ pending appeal for the recusal of the presiding Judge Charles Hungwe.

Lt-Gen Kamoli and his co-accused allege that they will not get a fair trial and want the Zimbabwean judge to recuse himself on the grounds that he had prejudged them even before the trial.

They had their 6 January 2020 application for Justice Hungwe’s recusal dismissed by the same judge on 21 January 2020 on the grounds the application lacked merit and the applicants had failed to prove that he was biased against them as they had claimed.

However, the Zimbabwean judge gave the accused the greenlight to appeal to the Court of Appeal on the grounds that it was in the interests of justice for the apex court to test the merits of their recusal application.

It had been expected that they would file their appeal in the apex court during its May 2020 session. This would have enabled their murder trial to begin tomorrow and continue up to 7 August 2020.

However, Lt-Gen Kamoli and his co-accused did not file their application in the apex court. It is not clear why they did not do so but this has had the effect of delaying their murder trial.

This has not gone down well with the Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, who has accused the 10 soldiers of delaying tactics.

DPP Motinyane has since petitioned the Court of Appeal to remove their appeal from the roll so that their murder trial can finally begin.

In her application filed this week, she says the 10 soldiers could have filed their papers to enable their appeal to be enrolled in the apex court’s May 2020 session but did not do so just to delay their murder trial from getting underway.

“There was an undertaking by the respondents to prosecute the appeal in April/May 2020,” DPP Motinyane states in her court papers.

“It is obvious that nothing seems to have happened for enrolling the matter on appeal…They failed to take the necessary steps to file the record of appeal in terms of the agreement schedule (sic).

“My fear is that this appeal had been filed to forestall the criminal trial and is likely to serve as a technical obstruction to the course of justice if left unchecked.

“I accordingly pray that the appeal be struck off the roll. I maintain that the dilatory and unprofessional conduct of litigation as exhibited in the present case is unprecedented. The respondents were bound to prosecute the appeal within an agreed period,” DPP Motinyane further states.

Lt-Gen Kamoli’s co-accused are Captain Litekanyo Nyakane, Captain Haleo Makara, Sergeant Lekhooa Moepi, Sergeant Motsamai Fako, Corporal Marasi ‘Moleli, Corporal Mot?oane Machai, Corporal Mohlalefi Seitlheko and Corporal T?itso Ramoholi.

They are accused murdering Lt-Gen Mahao on 25 June 2015.