Mohalenyane Phakela

ATTORNEY General, Advocate Haae Phoofolo, has filed an application challenging the Acting High Court Registrar, Adv Pontšo Phafoli’s decision to pay the legal fees of former army commander, Lieutenant General Tlali Kamoli, and several other serving and former member of the security agencies accused of murder and other serious crimes.

Zimbabwean judge, Justice Charles Hungwe, who was sworn in early this year as one of the foreign judges presiding over the high profile cases, said he would hear Adv Phoofolo’s application on 16 September 2019.

Adv Phafoli recently agreed that the state would pay Lt-Gen Kamoli and others’ lawyers’ legal fees at the rate of M400 per day in court in terms of the pro deo arrangement. But Lt-Gen Kamoli and others’ lawyers are not satisfied and they have petitioned the state to increase the amounts.

Under normal circumstances in this and other jurisdictions, the state assists suspects with their legal fees only after they have proved that they are incapable of paying for themselves due to financial constraints. In such situations, the state provides the accused with lawyers. Lt-Gen Kamoli and his co-accused’s situation is highly unusual in that they chose their own high profile lawyers and later turned around to say they could no longer afford their fees and they now wanted the state to foot their bills.

Justice Hungwe said he had never heard of a situation where suspects choose their lawyers and later turn around to plead poverty and ask the state to foot their legal bills in terms of the pro deo arrangement like Lt-Gen Kamoli and his co-accused have done.

As if their request was not unusual enough, Lt-Gen Kamoli and others said the M400 they were given by the state for legal costs was not enough and they even filed a court application to have the amount increased. Their application will be heard after the court has heard and finalised Adv Phoofolo’s Wednesday court application challenging Adv Phafoli’s decision to pay the suspects’ legal costs.

Adv Phoofolo also argues, in his latest court application, that the pro deo facility is meant for suspects who have proved that they cannot afford to pay the lawyers.

The attorney general on Wednesday approached the High Court for an order declaring Adv Phafoli’s 15 July 2019 decision to pay Lt-Gen Kamoli and others’ legal fees as irregular and unlawful.

Adv Phafoli, Lt-Gen Kamoli and 31 others are the respondents in Adv Phoofolo’s application.

In his court application, Adv Phoofolo, argued that legal fees can only be paid out in terms of the pro deo arrangement after the suspects have proved that they are incapable of paying for themselves.

“The application for pro deo (state assistance to pay legal fees) is governed by Legal Notice No. 183 of 2011 which empowers the first respondent (Adv Phafoli) to grant it to deserving accused persons who are indigent or unable to shoulder legal fees at their cost.  No evidence of inability to pay the said fees was presented to the DPP for consideration of the proposed avenue,” Adv Phoofolo states in his court application.

He said most of the suspects were still earning their monthly salaries and therefore should afford their legal costs.

“It is my considered view that the circumstances of each accused person differs and for that reason a wide net cannot be cast upon all of them as if though they are similarly circumstanced.

“While the accused respondents are at large to engage the services of lawyers of their choice, they are not at large to do so regardless of their financial situation. Financial constraints clearly play a role. While it is the accused’s right under the constitution, the state equally has a right and for that reason it cannot be said that the accused respondents can engage lawyers of their choice at the state’s expense irrespective of their personal financial circumstances.”

Adv Phoofolo also said that Lt-Gen Kamoli was not a deserving candidate for state assistance as the former army chief had received a hefty exit package in excess of M3 million after his retirement on 1 December 2016.

“It is worth mentioning that the second respondent (Lt-Gen Kamoli) had just retired from the army and had been given a hefty exit package of not less than M3 million.

Adv Phoofolo also argued that Adv Phafoli acted unilaterally in approving Lt-Gen Kamoli and others’ request for financial assistance to pay their legal fees. He said the Acting High Court Registrar should have consulted him and the ministries of finance and justice before approving Lt-Gen Kamoli and others’ request.

After consultations with the applicant’s and respondents’ lawyers, Justice Hungwe ordered that Adv Phoofolo’s application be heard on 16 September 2019.

The court litigations and counter-litigations only serve to further delay the start of the much-anticipated trials of Lt-Gen Kamoli and others for various crimes including murder and attempted murder. It is almost two years to the day that Lt-Gen Kamoli was arrested and detained at the Maseru Maximum Security facility where he continues to await trial.