Mohalenyane Phakela
TREASON and murder accused former army commander, Tlali Kamoli, and his co-accused argue that their trial cannot be deferred just because of the Director of Public Prosecutions (DPP) Hlalefang Motinyane’s “obsession” with retaining South African, Shaun Abrahams, as the lead prosecutor in the case.
They urged the High Court to allow them to plead to the charges or discharge them if DPP Motinyane and her prosecution team are not ready to proceed with the case.
They state this in their heads of argument filed this week in opposition to DPP Motinyane’s application for leave to appeal Chief Justice Sakoane Sakoane’s refusal to recuse himself from presiding over the trial.
The DPP also wants to challenge Justice Sakoane’s decision to bar lead prosecutor Shaun Abrahams from prosecuting the case.
Her leave to appeal Justice Sakoane’s 26 January 2022 judgement was moved before the chief justice last week by the DPP’s lawyer, Motene Rafoneke. Advocate Rafoneke said his client was adamant that Justice Sakoane would not be impartial in the trial given his previous “indecorous behaviour” towards the DPP when he dismissed her application for his recusal from the case.
The DPP accused Justice Sakoane of taking over the case – after the resignation of Botswana judge Onkemetse Tshosa without consulting the Judicial Service Commission (JSC). This was despite that the chief justice knew fully well that the government and JSC had resolved that this and other high-profile trials should be allocated to foreign judges.
Lieutenant General (Lt-Gen) Kamoli is accused alongside politicians, Mothetjoa Metsing, Selibe Mochoboroane, Captain Litekanyo Nyakane, Lance Corporals Motloheloa Ntsane and Leutsoa Motsieloa.
The treason and murder charges are in connection with the 30 August 2014 attempted coup against the first government of former Prime Minister Thomas Thabane.
With the exception of Mr Metsing who is a fugitive from justice and has not appeared in court to stand trial, the other suspects have teamed up to oppose DPP Motinyane’s application for leave to challenge Justice Sakoane’s refusal to recuse himself from the trial.
In their opposing papers, they argue that they cannot be denied a fair trial because of DPP Motinyane’s alleged obsession with retaining Advocate Abrahams’ services.
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“DPP (Motinyane) cannot be obsessed by a counsel (Abrahams) who is sanctioned by the court and for a moment elevate or confuse her obsession for a legal right. The DPP is free to engage another counsel,” the five accused argue.
They argue that allowing the DPP to challenge the decision to bar Adv Abrahams from prosecuting their trial will only further delay the case from proceeding. As things stand, the trial has been delayed for the past four years, they argue.
“This court is accordingly faced with a choice between sustaining the constitutional and human rights of the accused’s rights to a speedy trial, or supporting the recalcitrant stance of the Director of Public Prosecutions to undermine the rights of the accused persons. The fact that the accused are in detention for period in excess of four years cannot be in dispute,” they argue.
This is despite that the accused have themselves been primarily responsible for most of the delays in the trial because of their numerous, albeit unsuccessful, court applications in the past.
They nonetheless pray that Justice Sakoane dismisses DPP Motinyane’s leave to appeal his refusal to recuse himself and proceed with their trial, failing which they must be discharged.
“We submit that this court should be vigilant and sensitive to accused rights and refuse the postponement as the law is clear in terms of section 9(4) of the Speedy Court Trials Act 2002 which states that ‘No postponement shall be granted because of general congestion of the court’s calendar, double booking by counsel, lack of diligent preparation or failure to obtain a witness on the part of the prosecution’.
“We pray for dismissal of the application and that the accused be allowed to take plea in terms of section 150 of Criminal Procedure and Evidence Act, 1981 and be discharged in the event that the Crown is not ready to lead evidence,” the accused argue in their court papers.
Justice Sakoane will deliver his judgement on the DPP’s leave to appeal application on Monday.
