THE Court of Appeal will pronounce itself on 30 October 2020 on whether Zimbabwean Judge Charles Hungwe should recuse himself from presiding over the trial of Lieutenant General (Lt-Gen) Tlali Kamoli and eight other soldiers accused of murdering former army commander, Lt-Gen Maaparankoe Mahao.
Lt-Gen Kamoli’s co-accused are Sergeant Motsamai Fako, Captain Litekanyo Nyakane, Captain Haleo Makara, Sergeant Lekhooa Moepi, Corporal Marasi ‘Moleli, Corporal Motšoane Machai, Corporal Mohlalefi Seitlheko and Corporal Tšitso Ramoholi.
They stand accused of the 25 June 2015 murder of Lt-Gen Mahao in Mokema, Maseru. They are also accused of the attempted murder of Lt-Gen Mahao’s nephews, Mahao Mahao and Mabilikoe Leuta.
They have also been charged with damaging Lt-Gen Mahao’s vehicle during the same operation by firing at it with an automatic rifle.
Lt-Gen Kamoli is further charged with the theft of Lt-Gen Mahao’s 9mm pistol and his Samsung Galaxy mobile phone.
Lt-Gen Kamoli and his co-accused allege that they will not get a fair trial and want Justice Hungwe to recuse himself on the grounds that he had prejudged them even before the trial.
The recusal bid was premised on Justice Hungwe’s August 2019 judgement in which he denied Sergeant Fako bail, saying he was “part of a gang which took down the deceased (Lt-Gen Mahao)”.
This did not go down well with Sergeant Fako and his co-accused who argued that it was proof that Justice Hungwe had prejudged them even before the actual trial.
Their initial High Court application for Justice Hungwe’s recusal was dismissed by the same judge on 21 January 2020 on the grounds the application lacked merit and the applicants had failed to prove that he was biased against them as they had claimed.
He however, gave them the greenlight to appeal to the Court of Appeal on the grounds that it was in the interests of justice for the apex court to test the merits of their recusal application.
On Tuesday, a three-member Court of Appeal bench comprising of the apex court’s president, Justice Kananelo Mosito, Justices Johann Van Der Westhuizen and Tafuma Mtshiya heard their appeal.
Their lawyer, Advocate Napo Mafaesa, repeated the same argument that Justice Hungwe had prejudged the soldiers by referring to Sergeant Fako as a member of the gang which murdered Lt-Gen Mahao.
“Sergeant Fako says he did not shoot or conspire to shoot the deceased. However, the learned judge (Justice Hungwe) says he was part of the gang which took down the deceased. That is the conclusion of the judge which disqualifies him from presiding over the trial.
“The issue of common purpose is for the prosecution to prove at the trial. It was wrong for the judge to say he (Sergeant Fako) was part of a gang,” Adv Mafaesa said.
However, Adv Mafaesa did not file a copy of Sergeant Fako’s bail petition as part of the appeal papers. This – according to the judges- was a serious omission as it made it impossible for them to know what Sergeant Fako had actually said in his 2019 bail application before Justice Hungwe.
“This case seems to hinge on the bail application,” Justice Mosito said.
“I feel constrained by the absence of the bail records. I cannot see how we can be able to judge in the absence of the bail records. The easiest thing you could have done was to furnish us with the records in order for us to see what the petitioner said,” Justice Mosito added. Justices Van Der Westhuizen and Mtshiya echoed similar sentiments.
Adv Christopher Lephuthing, who represented the Director of Public Prosecutions (DPP) in opposing the recusal, argued there was nothing wrong with Justice Hungwe saying Sergeant Fako was part of the gang which killed Lt-Gen Mahao because he had admitted being with those who murdered the former army commander.
“The petitioner (Sergeant Fako) says he was there but did not shoot the deceased. There was no better term to describe him when he had admitted to be part of the gang which killed Lt-Gen Mahao,” Adv Lephuthing said.
Despite complaining about the failure to file the records of Sergeant Fako’s bail petition, Justice Mosito reserved judgement to 30 October 2020.