JUSTICE Onkemetse Tshosa has dismissed an application for his recusal from presiding over Captain Litekanyo Nyakane and four other soldiers’ trial for the 2012 murder of three civilians in Mafeteng.
Captain Nyakane filed the recusal application through his lawyer, Advocate Lintle Tuke, on 10 September 2020. He argued that the Botswana judge must recuse himself from the case because he was unlikely to give him a fair trial as he had allegedly threatened him in a preliminary hearing on 9 December 2019.
Captain Nyakane said Justice Tshosa had said that the “court is not a playground” and he felt threatened by that statement.
However, in delivering his verdict on Monday, Justice Tshosa said there were no court records indicating that he had ever uttered such words.
“The alleged exchange between the court and the accused does not appear in the court records of that day and therefore the court has no recollection of any exchange or comment made by it to that effect,” Justice Tshosa said.
“Even the defence counsel has no record of such. The allegation cannot be substantiated and it is therefore baseless. The issue of bias has no basis because it has not been substantiated. The fear of bias entertained by the first accused (Captain Nyakane) has no foundation.
“In fact, the court has entertained several applications and postponements. The court has been patient and in all that indulgence I fail to understand why the first accused would say court would be biased. The application for recusal has no merits and it is therefore is dismissed,” Justice Tshosa ruled.
He then postponed the murder trial to 5 October 2020.
Captain Nyakane’s co-accused are Lance Corporal Khauhelo Makoae, Lance Corporal Sebilo Sebilo and Privates Tšepo Tlakeli and Thebe Tšepe.
They are accused of murdering Thabang Mosole, Monyane Matsie and Pakiso Ntala Letatabe at Ha Motanyane, Mafeteng in 2012.
Justice Tshosa also presided over the murder trial of two soldiers accused of murdering one Lisebo Tang in 2016. He postponed the case to 19 November 2020. It is expected that by then fellow Botswana judge Kabelo Lebotse, who initially presided over the case, would have returned to the country to finalise the matter.
The two soldiers are Tjekane Sebolai and Selone Ratšiu. They are charged with the murder of Ms Tang, the attempted murder of her companion Tšepo Jane, damaging the latter’s vehicle as well as defeating the ends of justice.
They allegedly committed the crimes on the night of 9 May 2014 when they were guarding the Ha-Leqele, Maseru residence of then army commander, Lieutenant General Tlali Kamoli. Mr Jane had parked his vehicle next to Lt-Gen Kamoli’s residence when the soldiers shot at it, killing Ms Tang and injuring him.
They initially appeared before Justice Lebotse who resigned this year allegedly over “inadequate remuneration, lack of medical aid cover and non-provision of essential tools of trade”.
However, Justice Tshosa on Monday said his colleague would return to the country in November to finalise the case.