Sakoane dismisses DPP’s application for recusal  

Lesotho Times
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Justice Sakoane Sakoane

Mohalenyane Phakela

CHIEF Justice Sakoane Sakoane won’t recuse himself from presiding over the high-profile treason and murder trial of Mothetjoa Metsing, Selibe Mochoboroane, former army commander Tlali Kamoli and others.

The application had been filed by the Director of Public Prosecutions (DPP), Hlalefang Motinyane, who has accused the chief justice of bias and partiality against the prosecution.

However, in delivering his verdict yesterday, Justice Sakoane said the DPP’s fears that he was unlikely to be impartial, merely because he had castigated her and barred lead prosecutor Shaun Abrahams from prosecuting the case, were unjustified.

The DPP, who has been angered by what she sees as temperamental and unjudicious language by the chief justice against her, including Judge Sakoane’s insinuation that she should go back to law school, is not leaving the matter lying down.  The Lesotho Times understands she will take the recusal matter to the Court of Appeal as she believes Justice Sakoane will not administer justice and judging by his behaviour hitherto.

While the chief justice has been hard on the prosecution for seeking only a short delay in the case to allow prosecutor Abrahams, who had already indicated his unavailability on the dates set by the chief justice, to finish his other business elsewhere,  the DPP is also angered by the top judge’s failure to censure defence lawyers who have been responsible for much of the years of delays in the case after they filed multiple applications to halt the beginning of the trial. It was partly the behaviour of the defence lawyers which had caused two foreign judges hired to adjudicate the high-profile trials to quit, the DPP argues.

Justice Sakoane and DPP Motinyane have been at loggerheads ever since the chief justice declined the DPP’s request for a postponement of the treason and murder trial on the grounds that Adv Abrahams had other commitments in his native South Africa.

Justice Sakoane went ahead and set 10 to 20 January 2022 as the trial dates despite that Adv Abrahams had intimated that he was pre-booked. 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.

The irate 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 last week 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 Advocate Motinyane of perjury, the DPP was still unhappy with his conduct. She subsequently filed an application for the recusal of the chief justice from presiding over the treason trial.

Delivering his judgement yesterday, Justice Sakoane said he had not shown any bias against the Crown to warrant an application for his recusal. All that he had done was to call the prosecution to order over their “dishonest” behaviour, he said.

“The (treason and murder) trial which has taken five years to begin cannot be delayed by the behaviour of the DPP and the retained counsel (Abrahams),” Justice Sakoane said.

“The DPP appointed Ms Nku to lead the prosecution. She is eminently qualified to lead by virtue of her long experience of 43 years and her involvement in this case since 2018. All in all, the DPP’s apprehension of bias fails the double reason test. There is therefore no warrant for the court to recuse itself.

“The criminal court cannot be at the mercy of prosecutors who abandon criminal cases without leave of court. It cannot be tolerant of abusive conduct. In the result, the following order is made. The application is dismissed.”

Justice Sakoane said he could not be accused of bias for ‘disciplining’ the DPP and Adv Abrahams. He said that judges were empowered by the Speedy Courts Trial Act to discipline errant lawyers.

“It behoves the DPP and other counsel in criminal matters to protect the integrity of courts by being honest, candid and truthful at all times. This is what society expects from those whom the law empowers as the ministers of justice (sic).”

Justice Sakoane said both the DPP and Adv Abrahams knew as early as 13 December 2021 that the trial would run from 10 to 20 January 2022.

“Thus, no reasonable bystander in possession of this information would see any bias when the court denied Mr Abrahams the right to appear and prosecute the case (when he only came to court a week after the trial was due to start). Mr Abrahams failed in his legal and ethical obligation. In similar vein, the DPP has failed in her legal and ethical duty to uphold the truth as a high law officer of the Crown.

“The DPP is constrained not to retain a counsel (Abrahams) who engages in double booking and is unavailable throughout the trial dates and feeds her with false information. Her interest in a criminal trial is not that she should win a case but that justice shall be done. As such, she is in a peculiar service as a servant of the law. On one hand she should ensure that the guilty does not escape, on the other hand, she must ensure that the innocent does not suffer.

“Any lawyer found wanting in upholding ethical standards of the legal profession is bound for disciplinary action. The lawyer who deliberately places before court misleading information or makes a contention which is false is not fit to remain a member of the profession.

“Judicial officers have inherent powers to discipline practising lawyers, be it in private practice or for the Crown. Example of such powers are suspension, removal from the roll and disqualification from the case.

“A prosecutor who seeks to postpone a trial by providing false or misleading information or double booking should be sanctioned. Denial of appearance is not expulsion as the DPP suggests. Neither is it a denial of the Crown’s right to a prosecutor of its choice. But even if the DPP is right in her contention that she is denied the right to a counsel of her choice, the right to counsel is not absolute. It is subject to limitations imposed by the law. Unethical conduct by lawyer, as well as unavailability to prosecute are some of the limitations,” Justice Sakoane said.

He then postponed the treason and murder trial to 15 February 2022.

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