Mohalenyane Phakela
A BID by lawyers representing Tlali Kamoli and others to have the state pay them millions in legal fees has flopped.
Lieutenant General Tlali Kamoli, Major Pitso Ramoepana, Captain Litekanyo Nyakane, among many others, are facing an assortment of murder and attempted murder charges. They had asked the state to pay their legal fees saying they cannot afford them and the crimes they had been charged with were committed while they were still in active service.
Although pro deo lawyers (lawyers appointed by the state to represent those who cannot afford legal fees) are paid only M400 per appearance in terms of the law, Lt Gen Kamoli’s lawyers wanted to be paid a staggering M17 000 each per appearance.
Considering that the various trials are expected to last 18 months, the lawyers would have walked away with more than M6million each.
Lt Gen Kamoli and company had written to the High Court’s acting registrar, Advocate Pontšo Phafoli, in May 2019 asking the government to take over the payment of their legal fees. Adv Phafoli approved the request in July 2019 committing to paying each lawyer M400 per appearance as per the provisions of Legal Notice No. 183 of 2011.
This was deemed inadequate and a case was filed demanding that the state increases the figure to M17 000 per appearance.
Attorney General Haae Phoofolo then filed his own counter application arguing that Advocate Phafoli’s decision to even pay the M400, being deemed inadequate, was wrong. Advocate Phoofolo argued that Lt Gen Kamoli and company had failed to explain why they needed legal aid. Some of the accused soldiers were still receiving their salaries while Lt Gen Kamoli had himself been paid more than M3 million in benefits when he was forced to retire in 2016. They could thus all afford their legal fees, the AG argued.
High Court Judge Charles Hungwe concurred and dismissed the application for the state to pay the legal fees because of lack of evidence that the accused “soldiers and police officers could not afford to pay legal fees”.
He, however, said they could reapply to the registrar to be afforded pro deo fees if they had the evidence to justify such.
The judge said there had been no evidence of any inquiry into the inability of the accused to pay their own legal fees. The acting registrar had also not furnished the court with any paper trail which led to her decision.
“The registrar’s decision lacks evidence of inquiry therefore her decision of 15 July is set aside. Counsel for the accused (Adv Kabelo Letuka) asked that the registrar be given another chance to reconsider her decision properly. The accused can still approach the registrar but that should not interfere with the trials.”
Advocate Christopher Lephuthing, representing the Attorney General, had condemned the request for the state to pay such high fees on behalf of accused saying it was unheard of. He also argued that the court had no powers to unilaterally review the law which set the pro deo fees at M400.
“This is one of the most ridiculous cases that I have ever heard of… Imagine a lawyer being paid M17 000 per appearance for 18 months by the government…It has never happened here before,” charged Advocate Lephuthing.
He accused the soldiers of seeking to stall their trials at every turn. The nation had a right to know that had happened to all those who had been killed including those thrown in Mohale dam.
“Any attempt aimed at stalling proceedings should be thrown out…,” he argued.
Advocate Letsika, for the accused, said the charges against his clients were very complex and some required a lot of witnesses. To attest to the complexity of the cases, the state had itself imported international judges of repute and a renowned prosecutor to handle them. His clients were equally entitled to an increase in the pro deo fees to ensure they retained the best legal representation and get a fair trial in terms of the constitution. The state has roped in South Africa’s former National Director of Public Prosecutions Shaun Abrahams to assist in the prosecution of the cases.
Lt Gen Kamoli and his co-accused face a raft of charges including the killing of former LDF commander Maaparankoe Mahao in 2015.
Some of the prominent lawyers representing them are King’s Counsels Zwelakhe Mda, Motiea Teele and Karabo Mohau, Advocates Letuka Molati, Napo Mafaesa and attorney Qhalehang Letsika, among others.
