TREASON and murder accused politicians, Mothetjoa Metsing and Selibe Mochoboroane, say the charges against them are politically motivated.
They allege that the Director of Public Prosecutions (DPP), Hlalefang Motinyane, is “going with the prevailing political winds” and only charging them with the crimes in order to end their political careers.
The claims were on their behalf by their lawyer, Advocate Motiea Teele, on Tuesday.
Messrs Metsing and Mochoboroane have approached the High Court to stop the state from joining them to the treason and murder trial alongside former army commander Tlali Kamoli and others.
The two politicians argue that they cannot be tried in the High Court without first being remanded in the magistrates’ court as demanded by the Criminal Procedure and Evidence Act.
The trial is in connection with the 30 August 2014 attempted coup against the first government of former Prime Minister Thomas Thabane.
Appearing before Chief Justice Sakoane Sakoane on Tuesday, Advocate Teele argued that by her own admission, DPP Motinyane had the February 2020 decision to join his clients to the trial was politically motivated.
“My clients are contending that the DPP is making a political decision not a legal one because her motive is political,” Adv Teele argued.
“Her motive is to remove my clients from the political stage. In her affidavit, she says there had to be a political change of government for investigations to take place. This shows that she was going with the political wind. She says she pursued these gentlemen because there was a change of regime (in 2017 when Thabane came to power for his second stint as premier). That is a political motive.
“She is trying to create an impression that they were abusing office and could not be charged while still government ministers (in the Pakalitha Mosisili-led government from 2015 to 2017). This is not correct because back in July 2014 (when the two were still in government) they were summoned to the magistrates’ court on fraud charges. My clients could be investigated (even when they were in government).”
Messrs Metsing, Mochoboroane and Lieutenant General Kamoli have been charged alongside Captain Litekanyo Nyakane and Lance Corporals Motloheloa Ntsane and Leutsoa Motsieloa.
The two politicians initially filed a High Court application in December 2020 challenging the decision to join them to the trial. But Justice Sakoane declined to make a ruling and referred the matter back to the then trial Judge Onkemetse Tshosa. Justice Sakoane ruled that only Justice Tshosa had the jurisdiction to determine Messrs Metsing and Mochoboroane’s application. Unhappy with the decision, the duo then appealed to the Court of Appeal.
In the apex court, they also unsuccessfully challenged the Constitutional Court’s November 2020 judgement outlawing clause 10 of the October 2018 SADC-brokered government-opposition agreement which sought to shield them and other politicians from prosecution until after the implementation of the multi-sector reforms.
In the Court of Appeal’s 14 May 2021 judgement read out by its president, Justice Kananelo Mosito, the apex court said it had resolved to dismiss Messrs Metsing and Mochoboroane’s appeal against the Constitutional Court verdict on the grounds that the duo had merely brought before them a case which was “based on issues that had been decided before by the courts”.
The court also upheld Justice Sakoane’s decision that only the then trial judge Tshosa had the jurisdiction to determine whether or not they could not be joined to the treason and murder trial without first being remanded in the magistrates’ court.
They subsequently filed an application before Justice Tshosa in line with Justice Sakoane’s February 2021. But following Justice Tshosa’s resignation from the High Court bench for “personal reasons” on 1 August 2021, their application is now being handled by Justice Sakoane.
On Tuesday, Adv Teele also argued that DPP Motinyane had wrongfully invoked the provisions of section 144 of the Criminal Procedure and Evidence Act (CP&E) when joining his clients to the trial.
“When charges were preferred against General Kamoli and three other soldiers in 2018, why were my clients not indicted? The reason why the DPP excluded them is because they were not implicated in that murder charge. It is confusing why they are now joined to the murder charge.
“The DPP is abusing section 144 of the CP&E because it is not intended to join people to an existing trial. It is being used a vehicle to charge my clients whereas the CP&E does not support that. There is no substantiation of the fear of interference with the crown witnesses as demanded by section 144 of the CP&E. The section states that a certain criterion must exist (before suspects can be joined to a trial) and it does not in this case,” Adv Teele argued.
Justice Sakoane then postponed the matter to 27 September 2021, saying his diary was fully booked until that date. He however, asked both sides to regularly check with his clerk to see if the matter could be finalised before then.
Prior to postponing the matter, Justice Sakoane had said that Messrs Metsing and Mochoboroane should have appeared in the dock along with other suspects as they had already been informed of the charges against them.