Moorosi Tsiane
DEMOCRATIC Congress (DC) legislator, Thabiso Lekitla, intends to petition the Court of Appeal to overturn Justice Mabatšoeneng Hlaele’s refusal to recuse herself from his murder trial.
The decision follows the judge’s dismissal of a recusal application filed by Lekitla’s lawyers, Advocates Motiea Teele KC and Lepeli Molapo, last month.
Advocate Teele KC had argued that Justice Hlaele’s criticism of his co-counsel, Adv Molapo, during a previous request for postponement showed that the judge had already formed a biased opinion, believing that Lekitla was employing delaying tactics. He further contended that the mention of Lekitla’s political status unfairly worked against him, suggesting the court was treating him differently because he is a Member of Parliament.
However, the Director of Public Prosecutions (DPP), Hlalefang Motinyane, representing the Crown, countered that Lekitla’s concerns did not justify the judge’s recusal. She argued that a trial judge must engage in proceedings, ask for clarifications, and that Justice Hlaele’s actions did not demonstrate bias. She was merely doing what is expected of her.
Justice Hlaele delivered her ruling on Tuesday, rejecting the recusal application. In her judgment, she said a fair trial is a balancing act that considers all participants, not just the accused.
“…Whilst the paramount and primary recipient of a fair trial is an accused person, this does not translate to a disregard of other players in the trial. Whilst these competing rights are subservient to those of the accused, the court should not give the accused carte-blanche to a point where all other rights are sacrificed unfairly in favour of his. The dictum also clearly stipulates that preliminary unfavourable findings neither constitute unfair trial nor are they indicative of bias,” said Justice Hlaele.
“The suggestion by Advocate Teele KC that the refusal to grant a postponement is a trampling of his right to a fair trial, also that it points to bias should be juxtaposed against these rulings and also to the following set of facts. That a fair trial entails that criminal matters should proceed without interruption unless concrete reasons exist. That postponements are not there for the taking without merit. That courts are not passive observers where applicants for postponements are made, that courts have a right to interrogate without walking on eggshells but being fair and assertive, about the reasons the postponement is sought.
“The ruling that the court made, which Advocate Teele KC submits was unfair, does not point towards bias. In law, an unfavourable ruling does not constitute bias.
“From the set of facts presented before me, I made the ruling based on the fact that the only issue for which the postponement was sought was the issue of fees…… The ruling is also based on the notion that expeditious conclusion of criminal proceedings is central to a fair trial.”
Addressing the issue of her comments on Lekitla’s political status, Judge Hlaele explained that she merely wanted to confirm his role as a parliamentarian, and that Lekitla’s interpretation of her remarks was overly suspicious.
“The applicant is overly sensitive, overly suspicious, and finicky,” she said.
With the recusal application dismissed, the court moved to set new dates for the trial yesterday afternoon. However, Adv Molapo informed the judge at that time of their intent to appeal.
“We intend to appeal the judgment and will note the appeal within six weeks,” Adv Molapo submitted.
Lekitla, who represents the Mekaling constituency under the DC banner, is charged with the murder of Mopeli Rapholo, whom he allegedly shot in Lithabaneng, Maseru, on 5 December 2020. The case will now pause pending the appeal process.
