Mohalenyane Phakela
AN IRATE Chief Justice, Sakoane Sakoane, has once again launched a broadside at Director of Public Prosecutions (DPP), Hlalefang Motinyane, accusing her of “loitering” around instead of doing her job.
This after the head of the judiciary was forced to postpone the murder and attempted murder case of two bodyguards of former army commander Tlali Kamoli.
The two soldiers, Tjekane Sebolai and Selone Ratšiu, shot and killed a woman, Lisebo Tang, and injured her boyfriend, Tsepo Jane, on 9 May 2014 after the two lovebirds had unknowingly parked their car near the former army commander’s house. The two appear to have parked their car for some privacy in a leeway towards Kamoli’s home. They did not realise they were near the lion’s den. Sebolai and Ratšiu shot and killed Ms Tang and wounded Mr Jane, accusing the couple of “endangering” Kamoli’s security. That was during the time of Kamoli’s impunity.
The soldiers’ case did not proceed this week because the DPP had not signed an amended indictment to remove another soldier, Kopano Matsoso, as an accused.
Advocate, Lepeli Molapo, who represented the DPP, had sought a postponement after explaining to Justice Sakoane that Ms Motinyane was yet to sign the amended charge sheet.
That incensed the Chief Justice, who then went on the attack. He wondered why the DPP could not perform such a task as mundane as simply signing a charge sheet. He then accused her of not taking her duties seriously and hobbling the criminal justice system.
“How do I deal with a matter when there is no proper indictment before me? A simple matter of dealing with an indictment the DPP takes donkey months to do that. Why does she do that?” Justice Sakoane asked rhetorically.
“You were here on 15 March 2023. From March to June, the indictment is still not done when someone (Motinyane) is loitering in an office. I now have to postpone the matter because the indictment was not attended to timeously. Is this the seriousness that the criminal justice system is taken by the DPP in this country?”
Justice Sakoane then turned to address the two accused soldiers, informing them that he had to postpone their trial to 7 August 2023 and suggesting they might get their lawyer to seek their acquittal if the charge sheet is not ready by then.
“There is no proper indictment filed on record before me. I had expected that today we would deal with this indictment. But I am informed that the DPP has not filed a proper indictment. Absent a proper indictment before me I cannot do anything but postpone this matter. No business today because the DPP has not come to the party.
“If by that date, there is still no proper indictment before me, your lawyer knows what to do. Make sure you appear before this court on 7 August,” Justice Sakoane said.
Their lawyer, Sello Tśabeha, may invoke provisions of the Speedy Courts Trial Act and apply for the discharge of the two soldiers for want of prosecution if the indictment is still not ready on 7 August.
Sebolai and Ratšiu are facing murder, attempted murder, damage to property as well as defeating the ends of justice charges. All the charges arose from their action on 9 May 2014 when they were guarding the Ha-Leqele, Maseru, residence of Kamoli.
Initially, Sebolai and Ratšiu were accused alongside their colleague, Kopano Matsoso, who was on duty with them on that fateful night.
This trial had in 2020 reached near completion when Botswana Judge, Kabelo Lebotse, was still presiding over it.
Justice Lebotse had heard the Crown’s evidence of seven witnesses and also discharged Matsoso from the accused persons as there was no evidence of him opening fire at Ms Tang and Mr Jane.
However, Justice Lebotse, who was recruited in 2019 as one of the three foreign judges to preside over high-profile criminal cases, resigned in May 2020 over what he and fellow foreign judges considered to be poor working conditions.
The judges had complained of inadequate remuneration, lack of medical aid cover and “non-provision of essential tools of trade”.
Another Judge, Onkemetse Tshosa, also from Botswana, resigned too in August 2021 over the same complaints. Justice Charles Hungwe, from Zimbabwe, is the only remaining of the three judges.
The two soldiers’ trial had been held in abeyance from the time of Justice Lebotse’s quitting until this year when Justice Sakoane took over.
The Chief Justice will have to hear the case from scratch as a judge cannot continue with a case that has been part-heard by another.
It appeared from Advocate Lepeli’s submission that DPP Motinyane had opted to no longer charge Matsoso after his discharge by Justice Lebotse. This therefore required an amended indictment excluding Matsoso. However, the amended indictment was not ready for court and this frustrated Justice Sakoane who then lashed out at the DPP.
DPP Motinyane and Justice Sakoane have exchanged swords before. Their tiff dates back to January last year when the Chief Justice tried to remove South African lawyer, Shaun Abrahams, from prosecuting the treason and murder trial of Kamoli and prominent politicians Mothetjoa Metsing and Selibe Mochoboroane.
Justice Sakoane had set 10 to 20 January 2022 as the trial dates for the case but Adv Abrahams did not pitch up, having previously indicated that he would be engaged for other commitments in his native South Africa.
The DPP was adamant that the Chief Justice should not have proceeded to set the 10 to 20 January 2022 dates when he had been told Adv Abrahams would be absent. Indeed, on 10 January 2022, Adv Abrahams did not show up in court as had been anticipated and DPP Motinyane then sought a postponement of the trial. This did not go down well with Justice Sakoane who refused to postpone the case and then went ballistic, using what the DPP later described as “injudicious” language to attack her and Adv Abrahams.
The top judge even warned that he could end up freeing the suspects if the prosecution continued to dilly-dally.
The DPP had then resolved that Adv ‘Naki Nku would prosecute the case in Adv Abrahams’ absence. But Adv Abrahams showed up in court on 17 January 2022, ready to resume his role, only for Justice Sakoane to bar him. He said it was “untenable” for Advocate Abrahams, who had been absent from court to suddenly return and take over as lead prosecutor from Adv Nku, who had replaced him in his absence.
Justice Sakoane also charged DPP Motinyane with perjury for “lying” to him that Adv Abrahams would not be available.
Although Justice Sakoane eventually cleared DPP Motinyane of perjury, the DPP was still unhappy with his conduct.
She subsequently asked the Chief Justice to recuse himself from the trial. But he refused.
In delivering his verdict on 26 January 2022, Justice Sakoane said the DPP’s fears that he was unlikely to be impartial, merely because he had castigated her and barred the lead prosecutor Adv Abrahams from prosecuting the case, were unjustified.
The DPP, who was angered by what she saw as temperamental and injudicious language by the Chief Justice against her, including Judge Sakoane’s insinuation that she should go back to law school, did not take the judgement lying down.
She went to the Court of Appeal and won. She contended that the Chief Justice had no authority to decide which prosecutor leads a prosecution.
The apex court ruled that Justice Sakoane should step aside as demanded by DPP Motinyane. The court had then ordered the Registrar of the High Court and Court of Appeal, ‘Mathato Sekoai, to allocate the case to another judge.
It also granted DPP Motinyane’s application to rescind Justice Sakoane’s decision to bar Adv Abrahams from prosecuting the case.
DPP Motinyane’s appeal was heard on 23 April 2022 by the apex court bench comprising Justices Johan Van Der Westhuizen of South Africa and the Zimbabwean duo of Tafuma Mtshiya and Moses Chinhengo. Judgement was handed down on 14 May 2022.
And in February this year during the official opening of the High Court, the ground was set for the two top judicial officials to engage in another bitter exchange of words.
Justice Sakoane had said that the “so-called high-profile cases” were being delayed by the briefing of Adv Abrahams to prosecute majority of them by the DPP. He prosecutes five of the six high profile cases.
DPP Motinyane then hit back, accusing Justice Sakoane of unprofessionalism. She accused the Chief Justice of incompetence, saying if he had perused through the High Court files of these high-profile cases, he would have seen that the delays had been occasioned by the accused persons who had filed umpteenth applications to forestall their trials.
