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Army defends soldiers’ detention

by Lesotho Times
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Tefo Tefo

Lesotho Defence Force (LDF) Deputy Commander Major-General Khoantle Motšomotšo says army commander Lieutenant-General Tlali Kamoli is not in contempt of court for not releasing 22 soldiers detained at Maseru Maximum Security Prison.

The soldiers filed an application before the High Court on Friday last week praying for Lt-Gen Kamoli to be held in contempt of a court order which set them free on  5 October 2015.

In her ruling, Justice Molefi Makara had set aside the decision to detain the soldiers after ruling the imprisonment was unlawful.

The 22 detainees are facing mutiny charges before a Court Martial, and were arrested between May and June this year.

However, after Justice Makara ruled their detention was illegal, the LDF did not release them as expected, prompting the lawsuit.

But in his answering affidavit filed in the High Court yesterday, Maj-Gen Motšomotšo denied the contempt charge.

“I wish to indicate that there is no order of the court dated 5 October 2015 which has been violated by the commander of the LDF.

“I aver that the commander of the LDF is not aware of any court order which orders him to do a specific act or refrain from doing anything against the applicants.

“I have heard that this honourable court granted judgment on 5 October 2015.

“I have also been advised that a copy of this judgment was only made available to the respondents’ legal representatives on 9 October 2015,” he stated.

The respondents he was referring to are Lt-Gen Kamoli, Court Martial President Major-General Mojalefa Letsoela, Court Martial Prosecutor Advocate Roland Suhr and Attorney General King’s Counsel Tšokolo Makhethe.

Maj-Gen Motšomotšo reaps that the court dismissed all the prayers sought by the soldiers save for the one declaring keeping them in detention was irregular. He however, also noted the court was not clear what should happen regarding this prayer.

“I wish to indicate that the approach of the applicants that the commander of the LDF is guilty of contempt of court concerning this prayer is without merit.

“This prayer, in itself, does not oblige the commander to do a positive thing or refrain from doing a specific act.

“It follows, therefore, that upon granting this order, there ought to have been a consequential order which directed the commander to do a specific act or refrain from doing a certain thing.

“If the court had wanted to order the release of the applicants from close arrest, it could have granted Prayer 19, possibly with some conditions,” he noted in the affidavit.

Under Prayer 19, the soldiers wanted the court to direct the LDF commander to set them free unconditionally.

Maj-Gen Motšomotšo also says remand warrants given to the soldiers at the Court Martial to regularise their continued detention should only be challenged before the military court and not the High Court.

“I wish to inform this honourable court that the remand warrant is part and parcel of the Court Martial process, and which can only be challenged before that court and that court alone.

“It follows that for as long as Court Martial processes are in progress, the applicants are free to make applications before that court dealing with certain aspects they are not satisfied with.”

He again argued the remand warrants were served according to the law.

“This move had nothing to do with the judgment of the honourable court. It was motivated by objective and genuine considerations of security and the safety of potential witnesses, the safety of the applicants and the general desire to maintain discipline in the LDF.”

He also says the soldiers were given a chance to talk about their detention but opted not to do so.

“The applicants were provided with stationery and other materials to enable them to make their written representations. They failed to make such representations.”

The deputy commander insisted the soldiers are likely to abscond if released from detention because of the possible heavy punishment they face if found guilty by the Court Martial.

“In view of the fact that other members have already escaped and skipped the country, it is not in the interest of justice that they be kept under open arrest.

“The LDF does not have the facilities to ensure their movement could be restricted and there is nothing that guarantees that they will not escape in the same manner as their colleagues,” he noted.

Maj-Gen Motšomotšo also denied that the High Court set aside “the close arrest order”.

“All the honourable court did was to grant a prayer which sought to review the decision in the manner set out above.

“It never granted a consequential order in the manner suggested by the applicants,” he stated.

On the soldiers’ request to have Court Martial proceedings suspended until their contempt application is finalised tomorrow, Maj-Gen Motšomotšo said the High Court had no authority to grant such a prayer.

“I aver that the honourable court is not entitled to stop proceedings of another court particularly where no justifiable reason exists.

“Under the premise, it is totally unjustified that Court Martial proceedings could be stopped simply because the applicants are under close arrest,” he said.

The detained soldiers are being represented by Advocate Anna-Marie de Vos (Senior Counsel) from South Africa, and Advocates Haae Phoofolo (KC), Christopher Lephuthing, and Koili Ndebele. They are instructed by Attorneys Khotso Nthontho and Tumisang Mosotho.

The respondents are represented by Advocate Motiea Teele (KC) and Attorney Qhalehang Letsika.

The 22 detained soldiers are Brigadier Thoriso Motoa, Colonel Stemere, Colonel Kolisang, Major Makhetha, Captain Chaka, Second-Lieutenant Mohasi, Sergeant Mokhobo, Sergeant Semakale, Sergeant Lekhabunyane, Corporal Mokhoro, Corporal Letsilane, Corporal Lipoto, Corporal Manaka, Corporal Mohatlane, Corporal Chele, Corporal Motseko, Lance-Corporal Jobo, Lance-Corporal Molefi, Lance-Corporal Makhooane, Private Pama, Private Bolofo and Private Ralitlemo.

A total of 23 LDF members are facing the mutiny charges, including Brigadier Thoso Mareka, who was released from the prison due to ill-health. However, Brigadier Mareka has since been placed under open arrest.

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