Mohalenyane Phakela
THE Director of Public Prosecutions (DPP), Hlalefang Motinyane, has blasted murder and attempted murder accused former army commander, Tlali Kamoli, for wasting the court’s time by rehashing the same issues that have already been resolved by the courts. This after Kamoli earlier this week asked Justice Charles Hungwe to recuse himself from presiding over his attempted murder trial despite having a similar recusal application rejected by the Court of Appeal.
The attempted murder trial is in connection with the 27 January 2014 simultaneous bombings of former First Lady ‘Maesaiah Thabane’s Moshoeshoe II home and the Ha-Abia residence of the then Police Commissioner, Khothatso Tšooana.
Kamoli stands accused alongside Pitso Ramoepane, Litekanyo Nyakane, Mohlalefi Seitlheko and Heqoa Malefane.
The trial was supposed to have started last week but Kamoli’s lawyer, Advocate Letuka Molati, was a no-show without any explanation until he suddenly appeared in court on Friday. Another defence lawyer, Adv Napo Mafaesa, who is representing Kamoli’s co-accused, told the court he had notified Adv Molati of the trial dates and did not know why he was not before court.
Justice Hungwe then ruled that he would proceed with the trial in the absence of Adv Molati. This did not go down well with Lt-Gen Kamoli who then asked for an opportunity to address the court. He accused Justice Hungwe of prejudging him and not treating him fairly.
Kamoli subsequently filed any application earlier this week asking for Judge Hungwe’s recusal in what is apparently a Stalingrad strategy to stall the trial. He accuses Justice Hungwe of taking evidence from a different case involving him and using that in the current attempted murder case.
“The first meeting with His Lordship presiding was not harmonious as he indicated that he has either been told or heard about me (sic),” Kamoli argues.
“On 16 March 2022, my counsel was sick. I must indicate that upon realising that my counsel was not present in court and having asked some questions to Adv Mafaesa, he (Hungwe) decided that the case shall proceed without my legal representative.
“It is proper that His Lordship should recuse himself even before the trial could start to avoid confusion, much as it was evident that His Lordship brought matters from another case into the present case as a basis to deny a fundamental right to legal representation while assuming that I had in the past refused legal representation from legal aid which was not accurate (sic). When His Lordship indicated that the trial would proceed without my legal representative, he had not yet asked to hear my views on the matter. It was conclusive (sic). I submit that it was a clear indication of judicial bias towards me. I submit that when the recent developments are looked in the light of the fact that earlier His Lordship had stated that he knows about my attitude, I fear that I will not get a fair trial.”
Kamoli further accused Justice Hungwe of clinging to the case even though he had been ordered to pass it on to another judge by the High Court and Court of Appeal registrar, Adv ‘Mathato Sekoai.
“I aver that I also heard from the defence counsel as the matter was not a secret, that this matter was due to be allocated to another judge. But surprisingly, His Lordship does not prefer that the matter be reallocated as the Registrar had clearly stated the matter was due to be reallocated.
“I submit that His Lordship has set the cases before him which shall end in July 2022. Immediately after July 2022, the next available dates shall be in November 2022 as the dates thereafter are occupied with the same cases that are referred to as high profile cases. It follows that the case shall be heard sometime next year in 2023 (sic),” Kamoli argues.
But an irate DPP Motinyane has counter argued that Kamoli’s recusal arguments have no merit.
“I am somewhat astonished and aghast at the rationale, reasoning and timing of the application, which is devoid of any merit and is nothing but vexatious, dilatory and an abuse of the court’s processes……
“The applicant (Kamoli) places reliance on hearsay evidence……that His Lordship has been directed to reallocate the matter. He has also not advanced any reasons for the supposed directive to reallocate the matter. It is a well-known fact that the Registrar of this court, acting on the instructions or direction of the Chief Justice (Sakoane Sakoane), is responsible for the allocation of cases.
“I am not aware of any written direction to His Lordship either from the Chief Justice or from the Registrar not to continue with the trial. In any event, had there been such a direction, it would be argued at hearing of this matter that such a direction amounts to the most egregious impediment on the judicial independence of His Lordship to adjudicate over the trial of the applicant and his co-accused. Judicial independence serves as a safeguard from improper influence or partisan interests and ensures, that once seized with a matter, judges are able to perform their duties free of influence or control to adjudicate on the matter before him or her honestly and impartially having ultimate regard to the facts and circumstances of the matter, the legal principles and constitutional values and principles,” argues the `DPP.
“Any instruction for the matter to be re-allocated to another judge without plausible legal and factual reasons would further constitute gross legal and procedural irregularities, she argues. Such an instruction would lack transparency; offend judicial independence; go against the spirit and purport of the constitution and the rule of law; and would erode public confidence in the judiciary, its independence and the administration of justice as a whole.
“There is no evidence whatsoever of His Lordship’s voluntary and or unilaterally recusing himself from the matter. Again, His Lordship would have to provide well-reasoned, cogent, logical and legally sound and rational reasons in such an eventuality. There is also no evidence whatsoever of the facts, circumstances and policy consideration that regard were had to in directing the reallocation of the matter.”
The DPP further refuted Kamoli’s submission that the matter will only proceed in 2023 because of Justice Hungwe’s unavailability.
“The issue of the next available dates being in November 2022 is disputed. There are dates available in August, September, October and in November 2022. It is disputed that the matter will continue sometime in 2023. The applicant has absolutely no business with the contract of His Lordship. That is between His Lordship and the Judicial Service Commission (JSC). In light of the content of his affidavit, the apprehended bias is disputed. It is nonexistent and opportunistic to say the least,” she states.
She also argues that the Court of Appeal has previously rejected Kamoli’s averments that Justice Hungwe had prejudged him or his claims that he (Hungwe) had vowed to deal with his attitude. The appeal court rejected Kamoli’s recusal appeal against Justice Hungwe in a separate case in which the former army boss is accused of murdering former army commander, Lt-Gen Maaparankoe Mahao.
“This apprehension of bias harboured by the applicant has long been dealt with by the courts,” said the DPP.
Justice Hungwe will today hear arguments from both the Crown and defence lawyers in relation to the latest recusal application.
