Moorosi Tsiane
FOUR Mafeteng police officers accused of murdering Thuso Tjemolane have suffered a major courtroom setback after their bid to have the case removed from the roll over alleged non-compliance with the new Criminal Litigation Rules (CLR) was rejected by High Court Judge Mabatšoeneng Hlaele.
Police Constables Mphi Molise, Thabo Phakisi, Lipholo Boroko and Tumelo Motebang, who are accused of acting in common purpose in the killing of Tjemolane at Mafeteng Police Station on 2 August 2020, will instead face trial under the old criminal procedure regime.
The provisional investigations reveal that Tjemolane, a relative of renowned famo musician, Molefi “Mantsoaki” Tjemolane, was allegedly assaulted and tortured by the quartet after they suspected him of stealing a 4+1 taxi in Mafeteng.
Justice Hlaele ruled this week that removing the case from the roll would cause greater prejudice to the accused than allowing it to proceed despite the Crown’s failure to fully comply with the 2025 CLR.
The ruling came after the Crown conceded that it had not complied with some of the requirements of the new rules, a position also accepted by the defence.
Advocate Thapelo Mokuku, appearing for the Crown, told the court that the prosecution had furnished the defence with the police docket, witness statements and post-mortem report as required under Rule 72(2) of the CLR.
However, he conceded that some of the witness statements were neither typed nor clearly written, while the post-mortem documentation had not been properly completed.
“My Lady, I can’t go over this hurdle, there is no compliance,” Adv Mokuku told the court.
For the defence, Adv Lepeli Molapo argued that the case should be struck off the roll because it had been indicted under the Criminal Procedure and Evidence Act of 1981, before the new CLR came into operation.
“When this matter was indicted it was done so under the Criminal Procedure and Evidence (CP&E) Act, 1981. And we are operating under the directives of that CP&E,” Adv Molapo submitted.
He argued that the new rules could not simply be ignored and that the Crown should be compelled to comply with their disclosure requirements before the trial could proceed.
“This is a mere compliance case, but there is nothing that Crown has offered to this court to say, ‘we are unable to comply’,” Adv Molapo said.
He urged the court to remove the case from the roll until the Crown had complied with the new rules.
The other defence counsel, Advocates Monesa and Makhetha Motsoari, supported the application.
But Justice Hlaele was not persuaded. In dismissing the application, she said the court had to balance the accused persons’ constitutional rights, the complexity of the matter, possible prejudice to both the accused and the prosecution, and the broader interests of justice.
“I am mindful that Section 245 grants me, as the Presiding Officer, a discretion,” Justice Hlaele said.
She found that the defence had already been in possession of the docket for about a year and had not demonstrated that the documents supplied under the old regime had prevented them from preparing their defence.
“None of the parties said that the documents that they received under the old regime are inadequate or they are in any way a stumbling block to their preparation of their defence,” she ruled.
The judge consequently rejected the argument that the Crown’s non-compliance had caused actual prejudice.
“So much so that I am persuaded to believe that no miscarriage or no prejudice resulted from non-compliance,” she said.
Justice Hlaele warned that removing the case from the roll could itself create uncertainty and undermine the administration of justice.
“Once the matter is removed from the roll, it means that I cease to have control of the matter, and this uncertainty plays on the issues of the rule of law and the same things that these rules were meant to circumvent,” she said.
She was particularly critical of the prospect of a lengthy postponement, noting that the accused had already had ample time to prepare their defence.
“A 90-day delay in the circumstances where the defence has had occasion of one year with the documents in their possession is unreasonable,” Justice Hlaele ruled.
She further held that any unjustified delay could itself amount to a miscarriage of justice.
“If I were to be persuaded to remove, the issue of a postponement would be more harmful to the accused,” she said, adding that criminal cases are “by their nature taxing on the mind of an accused person”.
In a decisive move, Justice Hlaele exercised her discretion in favour of allowing the trial to proceed despite the procedural shortcomings.
“I exercise my discretion in favour of allowing this matter to proceed without compliance with the Criminal Litigation Rules.”
Instead, she ordered that the four officers’ case proceed under the old regime and the directives applicable under the Criminal Procedure and Evidence Act.
The judge also rejected suggestions that the matter was too complex to proceed, pointing out that the case involves only 12 witnesses.
“I order this because this matter is not complex. It only has 12 witnesses, the accused have had ample time to prepare, and any delay would be a miscarriage of justice.”
The four officers are accused of unlawfully acting in common purpose and committing an act or omission with the intention of causing Tjemolane’s death.
The trial has now been given a firm timetable, with the parties ordered to prepare and file a pre-trial minute by 9 September 2026.
The parties are also expected to file their opening statements by 9 September, with the defence required to file by 11 September.
“The matter shall proceed,” Judge Hlaele ordered.
The trial will continue on 5 October 2026.
