. . . decision could derail several high-profile cases
Mohalenyane Phakela
THE five high-profile cases involving politicians, Mothetjoa Metsing and Selibe Mochoboroane, as well as former army commander, Tlali Kamoli, and other members of national security agencies are in limbo yet again. This because of the withdrawal of the two prosecutors who have been seized with the cases.
South African lawyer, Shaun Abrahams, and local lawyer, Motene Rafoneke, have decided to discontinue prosecuting the five high profile cases on behalf of the Director of Public Prosecutions (DPP), Hlalefang Motinyane, citing “administrative and professional” issues.
Though they don’t disclose the details of these issues, the Lesotho Times has learned that the duo is withdrawing their services due to non-payment by the government.
The two prominent lawyers have already withdrawn from one of the five cases.
On Tuesday they filed their withdrawal application with the High Court in a case in which 10 soldiers, including the former Military Intelligence boss Brigadier Rapele Mphaki, are accused of murdering three civilians in May 2017. Other similar applications will follow.
The formal withdrawal application is in line with the provisions of section 4(a) and (b) of the Superior Courts Practice Direction No. 4 of 2021 (Withdrawal by Legal Practitioners for Litigants).
DPP Motinyane and the 10 accused soldiers are the respondents in the withdrawal application.
Brigadier Mphaki is in this matter accused alongside Major Pitso Ramoepane, Sergeant Lekhooa Moepi, Captain Mahlehle Moeletsi, Lance Corporal Mahlomola Makhoali and Privates Nthatakane Motanyane, Motšoane Machai, Liphapang Sefako, Nemase Faso and Tieho Tikiso.
They allegedly strangled Lekhoele Noko, Molise Pakela and Khothatso Makibinyane at Setibing in rural Maseru on 16 May 2017 and dumped the bodies in the Mohale Dam.
The soldiers allegedly kidnapped and murdered the three men after the trio had just been released from police custody where they were detained in connection with a shooting incident at the Maseru border gate on 13 May 2017.
This trial, which is partly heard, is scheduled to continue before Justice Moroke Mokhesi from 17 to 26 April 2023 and from 2 to 19 May 2023.
However, it may not proceed due to the withdrawal of the two prosecutors. Advocate Abrahams states in his founding affidavit that they have been forced to withdraw due to frustrations they suffered over a long period. He says they engaged DPP Motinyane in resolving the issues but failed to reach a solution.
“Over the preceding 20 months, the first respondent (DPP Motinyane) and I have attempted to resolve administrative and professional differences, which have remained unresolved despite numerous attempts at finding an amicable resolution thereto,” Adv Abrahams states.
“This resulted in me writing to her as early as 27 July 2022 providing the requisite timeous notice of my intention to file a Notice of Withdrawal as Crown Counsel in all matters on brief including CRI/T/0008/2018, on or about 1 August 2022. After further discussions, in resolution of the numerous differences, I agreed to stay the filing of my Notice of Withdrawal.”
“Notwithstanding the first respondent’s numerous engagements with senior government representatives and officials at the highest of levels, between 27 July 2022 and as of date of this motion, in attempting to resolve the numerous administrative and professional differences, these differences, which equally apply to the second applicant (Adv Rafoneke), remain unresolved.
“I respectfully submit that I had taken the requisite measures to timeously provide notice to the Director of Public Prosecutions of my intention to withdraw as Crown Counsel as early as 27 July 2022, and following many months of discussions in endeavouring to resolve the impasse, again on 10 January 2022.
“For professional reasons, and in all good conscience, I regrettably can no longer continue with the brief as lead Crown Counsel in CRVT/0008/2018,” Adv Abrahams states.
Adv Rafoneke also filed a supporting affidavit echoing similar sentiments to those of Adv Abrahams.
Adv Abrahams was engaged by the DPP for the five trials in 2018 while Adv Rafoneke only joined in 2021.
Adv Abrahams first resigned in September 2021 when the government had not paid him since his engagement. He resumed duties again in November 2021 when he was paid.
Around August 2022, the trials were deferred again due to non-payment of Advocates Abrahams and Rafoneke. This publication learned that they resumed duties in November 2022 and in January this year after only three months of their monthly bills were paid and commitments made to settle their other outstanding fees.
Adv Abrahams told the Lesotho Times he was “severely constrained” at this stage to discuss the details of his grievances. He however confirmed that he and Adv Rafoneke intended to withdraw from all the cases they had been briefed on.
“I am regrettably severely constrained to go into any of the details regarding the issues which brought us here, but we have reached the ends of our tether. Adv Rafoneke and I will soon be filing Notices of Withdrawal in the remaining matters in which the DPP has retained our professional services. We cannot continue working under these circumstances, particularly in the absence of a speedy and amicable resolution to the extant administrative and professional issues. As much as the DPP has done everything within her powers to assist, which we are tremendously grateful for, the reality is the challenges she faces negatively impact on the independence of her office to execute her statutory and constitutional mandate, particularly in relation to the so-called high-profile matters Mr Rafoneke and I are on brief,” Adv Abrahams said.
The two lawyers are also prosecuting the trial of Lieutenant General Kamoli, and eight other soldiers accused of the 25 June 2015 murder of former army commander Maaparankoe Mahao.
Their trial is before Justice Charles Hungwe.
They are prosecuting the treason and murder trial of Messrs Metsing and Mochoboroane and Kamoli, among others, over the August 2014 attempted coup against the first government of Thomas Thabane.
Furthermore, they represent the Crown in a case in which Lt-Gen Kamoli is accused alongside Major Ramoepane, Captain Nyakane, Sergeant Malefane Heqoa and Corporal Mohlalefi Seitlheko for the simultaneous bombings of the residences of former First Lady ‘Maesaiah Thabane and former Commissioner of Police Khothatso Tsooana on 27 January 2014. Justice Hungwe is presiding over the matter.
They are also prosecuting the trial of four police officers accused of murdering their colleague Police Constable Mokalekale Khetheng in March 2016.
