Don’t be swayed by popular opinion, Mosito implores judges


Mohalenyane Phakela

THE Court of Appeal’s first session for 2020 began on Tuesday with the apex court president, Justice Kananelo Mosito, imploring judges not to be swayed by public opinion. He said they should stick to legal principles when handling cases.

Twenty-four cases are expected to be heard during the first session from 12 May until 29 May 2020.

The apex court is conducting its sessions via video teleconferencing instead of the normal sessions where all judges are physically present at the court building in Maseru. Justice Mosito recently said judges would work from wherever they are without physically coming to Maseru because of the threat posed by Covid-19.

The apex court judges are Petrus Damaseb (Namibia), Phillip Musonda (Zambia), Johan Van Der Westhuizen (South Africa), Moses Chinhengo and Tafuma Mtshiya from Zimbabwe.

Each of the six judges appeared on a big screen erected inside the court building as Justice Mosito conducted a roll call during the opening session on Tuesday.

In his opening remarks, Justice Mosito appealed to judges not to be swayed by public opinion but to stick to legal principles when handling cases.

“The proper administration of justice depends on judges discharging the duties and responsibilities incumbent on them.

“Judges do not have the duty to achieve a certain result in accordance with popular wishes, whether they be majority or minority wishes. However, they have to ensure that a fair trial takes place and to adhere strictly to the requirements of the law.

“In the discharge of their responsibilities, judges look only to the letter of the law and to the spirit of the law, and nothing else. Political, economic or social considerations, as opposed to legal considerations, simply do not enter into the equation. If the courts have erred in their application of the law, then there is a system of appeals all the way up to the Court of Appeal.”

Justice Mosito applauded the court for hearing 80 appeals during its 2019 session. He said this figure had not been attained in recent years and it showed the court’s determination to afford litigants fair hearings.

He said the court would do its best to ensure everyone was given a fair hearing.

“There are many facets of a fair trial. First there is the presumption of innocence. Second, every person charged with a criminal offence is also entitled to be tried without delay. This implies that every person convicted of a crime shall have the right to appeal both conviction and sentence. The prosecution may also appeal.

“It is therefore unacceptable to sentence people and thereafter deny them the right to appeal by causing the records of proceedings in the High Court to disappear or failing to cause such records to be expeditiously transcribed to enable the convicted to have access to this court.”

Some of the cases expected to be heard during May 2020 session include Prime Minister Thomas Thabane’s grandson, Thomas Thabane Jr, and others’ appeal against the granting of bail to the murder-accused First Lady, ‘Maesaiah Thabane.

‘Maesaiah stands accused of murdering Mr Thabane’s ex-wife, Lipolelo, on 14 June 2017. She appeared in the magistrates’ court on 5 February 2020 and was granted M1000 bail by Acting Chief Justice ‘Maseforo Mahase.

This was despite that Justice Mahase was not the judge on call for granting bail and hearing urgent matters that week.  That judge on call that week was Justice Keketso Moahloli and not Justice Mahase.

But the acting chief justice took charge of proceedings and hurriedly freed ‘Maesaiah. On 12 February 2020, Thabane Jr teamed up with Khauhelo Molapo, Thuto Makhooane and Thato Sibolla to file an application in the apex court for an order to set aside Justice Mahase’s controversial decision to grant Ms Thabane bail. Thabane Jr is the son of Dr Thabane’s second son, Potlako while Messrs Molapo and Makhooane are Dr Thabane’s nephews. Ms Sibolla is a survivor of the shooting incident which claimed Lipolelo’s life. They want the bail application to be set aside on the grounds that it was granted unprocedurally.

Another application that is before the apex court is that of the 10 soldiers who have appealed against Zimbabwean Judge Justice Charles Hungwe’s refusal to recuse himself from presiding over their murder trials. The soldiers who include former army commander Lieutenant General Tlali Kamoli stand accused of murdering former army commander Lt-Gen Maaparankoe Mahao on 25 June 2015. They claim Justice Hungwe to recuse himself on the grounds that he is “biased” against them and is “unlikely” to give them a fair trial.

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