Justice Teboho Moiloa is this week expected to announce if he would be recusing himself from the trial of double ritual murder suspects, Lehlohonolo Scott and his mother, ’Malehlohonolo.
The Scotts, through their lawyer Advocate Thulo Hoeane, have applied for the judge’s recusal on the grounds they would not get a fair hearing should he preside over the matter.
Advocate Hoeane on 13 April 2016 quit the case citing the same allegations of bias but later had a change of heart after the Scotts indicated they did not accept any other pro deo lawyer apart from him.
But after High Court Registrar Lesitsi Mokeke refused to re-engage the lawyer, the Scotts said they would pay Advocate Hoeane on their own.
And when the matter resumed on Thursday afternoon before the High Court, Advocate Hoeane filed the recusal application on behalf of the Scotts, who sat neatly dressed in the dock.
The Scotts were arrested on 12 July 2012 for allegedly killing their Koalabata neighbours, Moholobela Seetsa (13) and Kamohelo Mohata (22), in January and July 2012, respectively.
The victims’ body parts were found in three locations in Koalabata, prompting speculation they had been killed for ritual purposes.
Scott escaped from Maseru Central Correctional Institute on 14 October 2012 as he awaited trial and fled to South Africa where he was arrested in Durban as he emerged from a church service on 6 April 2014.
After unsuccessfully fighting extradition in the Durban and Verulam Magistrate’s Court, Scott was finally deported on 21 October 2015. His mother had been released on M500 bail in August 2013.
Scott appeared before the High Court the same day he was extradited, with Justice Moiloa remanding him in custody until 23 November 2015. The judge on 23 November 2015 announced the case would proceed on 11 April 2016.
When the case got underway as scheduled, mother and son pleaded not guilty.
But after Advocate Hoeane announced he could no longer represent the accused, the trial has failed to continue despite his about-turn on the matter.
In his founding affidavit submitted before the court on Thursday, Scott says: “I am advised by my legal representative, Advocate Thulo Hoeane, and verily believe same to be true, that I am not getting a fair trial in CRI/T/123/12.
“I wish to reiterate that this application and or allegation expressed in paragraph (5) above is not made lightly and or frivolously. On the contrary, it is made with the greatest respect for the presiding judge.
“At the close of the evidence of PW5 (fifth prosecution witness) policeman Seeko (Lance Sergeant Liau Seeko), it is common cause that the album evidence he put before the court was not formally handed during his examination-in-chief by the crown.
“In the afternoon, this matter was taken up in cross-examination by my legal counsel and the aforesaid PW5 conceded that in fact the albums had not been exhibited and thus did not form part of his evidence.
“This matter led to a stand-off between the crown and my legal representative, with the crown indicating that it had ‘merely made a small mistake’ by not formally handing the albums as evidence. My legal representative was adamant and stood his ground that those albums were not evidence.”
Scott says it was at this stage that Justice Moiloa made a ruling “that the position taken by my legal counsel had no merit. Additionally and crucial to this application, the presiding judge then ordered that the aforesaid albums be marked A and B respectively.
“This was, I humbly submit, not acceptable because it is the crown and not the presiding judge who had to formally hand in these albums. In the premises, I am apprehensive that the honourable judge, having stepped into the arena, I will not get a fair trial. Hence my application that he should, with all respect, recuse himself from hearing the matter.”
’Malehlohonolo’s founding affidavit, which was also submitted before the court, reads the same.
After receiving the application on Thursday, Justice Moiloa asked prosecutors Advocates Gareth Leppan and Thapelo Mokuku, when they intended to respond to the Scotts’ recusal application.
Advocate Leppan said they would file their response on Tuesday this week: “We intend to file our response on Tuesday, 31 May, my Lord so that this honourable court can speedily decide on this recusal matter…”
Justice Moiloa then postponed the matter to Tuesday while also announcing he was going to announce his decision about the recusal application on 2 June 2016.