Apex court to rule on Sakoane recusal application next month

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Mohalenyane Phakela

THE Court of Appeal has resolved to hear the Director of Public Prosecutions (DPP) Hlalefang Motinyane’s appeal against Chief Justice Sakoane Sakoane’s decision to refuse to recuse himself from the treason and murder trial of politicians and former soldiers on 20 April 2022.

DPP Motinyane wants the Court of Appeal to review and set aside Justice Sakoane’s 26 January 2022 decision to decline to recuse himself as the presiding judge of the treason and murder trial of politicians Selibe Mochoboroane and Mothetjoa Metsing who stand accused alongside former army commander Tlali Kamoli and three others.

They are accused alongside Captain Litekanyo Nyakane, Lance Corporals Motloheloa Ntsane and Leutsoa Motsieloa.

Mr Metsing fled the country in December last year and remains a fugitive from justice.

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.

DPP Motinyane also wants the apex court to nullify Justice Sakoane’s ruling that South African lawyer, Shaun Abrahams, cannot continue to be the lead prosecutor in the aforesaid trial.

Justice Sakoane had instructed lawyers involved in the trial before him to approach Court of Appeal President Justice Kananelo Mosito to allow the matter to be heard expeditiously.

Prosecutor Advocate Motene Rafonek this week told the court that they could not secure a date earlier than 20 April 2022.

“The appeal in this matter managed to find its place on the roll of the Court of Appeal and we were told that it will be heard on 20 April 2022,” Adv Rafoneke said.

“We struggled to get a date because the transcription of the record is not yet complete, but I can confirm that the record is almost ready, and I am confident that it will be filed today. I went together with (defence lawyers) Advocates (Motiea) Teele and (Lepeli) Molapo to meet with the Court of Appeal Deputy Registrar (Adv Realeboha Makamane) who advised that a record must be produced first before the Court of Appeal gives us an audience.”

Justice Sakoane was not pleased with the 20 April date and said he thought the matter was going to be held before the end of this month. He then postponed the trial to 16 May when the future of the case will be determined based on the outcome of the appeal. The Court of Appeal will start sitting on 12 April 2022 until 20 April 2022. Its judgements will be delivered on 13 May 2022.

“I think the problem is that you never sought special audience with the president (Mosito) but instead went to the registrar (Makamane). I thought the matter was going to be heard expeditiously…

“I am informed the appeal will be heard on the last day on the roll of the Court of Appeal subject to the Crown transcribing the record on time. There is a possibility that if the record is not ready, then the matter will not be heard. The Crown has however, vowed to file the record this week. I understand that your (accused) counsel will keep updating you about the progress of the appeal.

“In the event that the appeal fails (DPP loses), the matter will come back before me to map the way forward. The matter is therefore, postponed to 16 May 2022 for mention as the appeal judgements will only be delivered a Friday preceding that day (13 May 2022).”

He also expressed concern over the high-profile trials being tried concurrently saying it hindered the fast delivery of justice.

“It has never happened in this court that the same accused persons are being tried by different judges concurrently. I boarded the ship (became Chief Justice) when it was already sailing. Ideally, a trial should be set down and proceed to finality and then we move to the next one,” Justice Sakoane said.

Kamoli and Nyakane stand accused in several matters including the murder of former army commander Maaparankoe Mahao and attempted murder of former First Lady ‘Maesaiah Thabane.

The DPP’s appeal emanates from Justice Sakoane’s 17 January sanctioning of Adv Abrahams after the latter had failed to appear before him on 10 January 2022. Adv Abrahams had indicated to Justice Sakoane that he would be committed in his native South Africa, but the Chief Justice had said lawyers who would not be present should pass the brief to others who were ready to proceed.

Adv Abrahams showed up in court 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 ‘Naki Nku, who had replaced him in his absence. DPP Motinyane sought Justice Sakoane’s recusal on the same day, but the Chief Justice declined on 26 January 2022.

In delivering his verdict on 26 January 2022, Justice Sakoane said the DPP’s fears that he was unlikely to be impartial, merely because he had castigated her and barred the lead prosecutor Adv Abrahams from prosecuting the case, were unjustified.

The DPP, who was angered by what she saw as temperamental and injudicious language by the Chief Justice against her, including Judge Sakoane’s insinuation that she should go back to law school, did not take the judgement lying down.

She opted to go to the Court of Appeal to enforce his recusal.  She also contends that the Chief Justice has no authority to decide which prosecutor leads a prosecution.

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