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Defence accused of delaying editor’s case once again

by Lesotho Times
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Moorosi Tsiane

THE lead prosecutor in the trial of four soldiers accused of the 9 July 2016 attempted murder of Lesotho Times and Sunday Express editor, Lloyd Mutungamiri, has accused the defence lawyers of constantly throwing spanners aimed at delaying the trial.

Advocate Rethabile Setlojoane expressed his frustration on Monday when the trial failed to proceed due to the non-appearance of the defence team and the excuse of “dislocation” of the case’s file by another lawyer.

The presiding officer, Maseru Senior Resident Magistrate Peter Murenzi, had in March 2023 scheduled the trial to proceed on 10, 11 and 19 July 2023.

This after Magistrate Murenzi had in February this year ruled that the Director of Public Prosecutions (DPP) Hlalefang Motinyane, was empowered by Section 99 of the Constitution to charge whoever she wants. He further said the DPP was also empowered to turn any accused person into an accomplice witness at any stage of the case.

The four  accused soldiers had argued in July last year that the Crown acted irregularly in turning their former co-accused, Mahanyane Phasumane, into an accomplice witness.

Phasumane was on 30 November 2017 accused of shooting the editor alongside Rapele Mphaki, Khutlang Mochesane, Nyatso Tšoeunyane and Maribe Nathane. However, the Crown decided to turn him into its witness on 3 September 2019. He was then freed from Maseru Central Correctional Institution where he had been incarcerated with the other four who remain in custody.

The four soldiers’ argument was that Phasumane took part in their consultations with their lawyers while he was still one of the accused and therefore knows their defence strategy.

They also contended that it was wrong for the state to have approached and decided to make Phasumane an accomplice witness without notifying their lawyers beforehand.

The four lodged this interlocutory application in July last year when Phasumane was supposed to testify before the court. Adv Setlojoane had called Phasumane to take the stand as the second state witness after Mr Mutungamiri.

The accused’s lawyers are Advocates Letuka Molati, Kabelo Letuka and Karabo Mohau (King’s Counsel). They wanted the Maseru Magistrates’ Court to refer the trial of the four soldiers to the Constitutional Court to quash the charges.

However, Magistrate Murenzi threw out their referral application on 22 February 2023.

And when it had been expected that Phasumane would proceed with his evidence on Monday this week, the defence lawyers were a no-show in the morning. This forced Magistrate Murenzi to stand-down the matter to the same afternoon after Adv Thandiwe Phohlo from Molati Chambers had said her boss would only be available later that day.

Adv Phohlo told the court that defence counsels were not before court as they had thought the magistrate was not be available this week as he would be attending a workshop.

But Adv Setlojoane objected to this, saying he informed Adv Phohlo that she was not the one to decide whether the case was proceeding or not. He said this has been a culture from the defence counsels to delay the case.

Magistrate Murenzi nonetheless stood down the matter to 2pm.

However, Adv Phohlo still appeared without Adv Molati while Adv Letuka was present but not ready to proceed as he had misplaced his file.

“I sincerely apologise for not showing up in the morning. The reason was that we had mis-diarised this case. When the matter was set down (8 March 2023), I was not here. Sometime in-between, we also changed offices and therefore mislocated other files. When I was informed that we should come to court at midday today, I tried to look for the file and unfortunately, could not find it as it appears it has been misplaced. Adv Phohlo was not aware that she was double-booking us when these dates we agreed on because on these dates, we were already scheduled for another matter in the High Court (Rex v Thabo Tsukulu).

“Adv Mohau is ill-disposed and will need at least a week to recover. For this reason, we did not even prepare with clients to continue today (Monday) or tomorrow. We humbly propose that the court indulge us so that we can put our house in order and postpone to 19 July 2023,” submitted Adv Letuka.

However, this irritated Adv Setlojoane even further, as he accused the defence lawyers of maintaining a trend of delaying the case.

“This kind of excuses has been a trend as every time this case is remanded for set-down, all the defence will not appear but send a junior representative. On 22 February, only Adv Phohlo was here and after the court declined to stay proceedings, it could not set down the case because the defence was not here. It was postponed to 8 March 2023, and they were still not present.

“We then set down 10, 11 and 19 July 2023 and sent them notices of trial, but until today, there has never been a courtesy call to inform us that they were booked at the High Court.  We are very worried about the defence’s behaviour. This is a 2017 matter, and we are very keen to see it prosecuted to finality,” argued Adv Setlojoane.

Magistrate Murenzi also expressed dissatisfaction over the unnecessary postponements.

“It is disconcerting that the defence says it was not privy to these dates. Indeed, there are issues on delay of proceedings and the court is concerned with the series of interruptions.

“The issue of my unavailability this week came informally while I was in chambers last week, but I later confirmed that the workshop currently taking place did not involve me. No one (from the defence) has ever confirmed my absence. We will proceed next week,” Magistrate Murenzi said.

Mr Mutungamiri was the first Crown witness and  testified from 9 to 11 March 2022. He had been flown into the country from his home country of Zimbabwe. During his court appearance, he was placed under heavy security as he still feared for his life.

During his testimony, Mr Mutungamiri said he was no longer able to work since his near-fatal shooting at his Maseru home on 9 July 2016 as he is still battling to recover from his injuries.

Mr Mutungamiri was left for dead when he was ambushed as he arrived and attempted to open the gate to his home after finishing duty at the Sunday Express. One bullet broke two of his right-hand fingers and another shattered his lower jaw, which left him needing specialised surgery to restore his face and remove the bullet lodged behind his left ear.

Mr Mutungamiri told Magistrate Murenzi he had undergone multiple operations to repair the injuries. Although the shooting occurred in 2016, he still had to undergo another operation on his left eye, Mr Mutungamiri said.

The operation, he explained, was meant to repair the damage caused by glass particles that entered the eye after bullets shattered his car’s windscreen and other windows during the shooting. He also needed to get the screws on his left jaw tightened so he is able to function. All these were expensive procedures that he could not afford since he was no longer working, he further told the court.

It is now expected that Phasumane will proceed with his testimony on 19 July.

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