- Seeks leave to appeal Sakoane’s refusal to recuse himself from Kamoli &others’ treason trial,
- Accuses him of imposing himself when he knew the case had been allocated to foreign judges.
Mohalenyane Phakela
DIRECTOR of Public Prosecutions (DPP) Hlalefang Motinyane’s war with Chief Justice Sakoane Sakoane over the treason and murder trial of former army commander, Tlali Kamoli, is far from over.
If anything, it is intensifying with DPP Motinyane seeking Justice Sakoane’s leave to challenge the latter’s 26 January 2022 refusal to recuse himself from presiding over the trial.
The DPP also wants to challenge Justice Sakoane’s decision to bar lead prosecutor Shaun Abrahams from prosecuting the case.
Her leave to appeal Justice Sakoane’s judgement was moved before the latter yesterday by her lawyer, Motene Rafoneke. Advocate Rafoneke said his client was adamant that Justice Sakoane would not be impartial in the trial given his previous “indecorous behaviour” towards the DPP when he dismissed her application for his recusal from the case.
The fire-spitting DPP accused Justice Sakoane of usurping the case without consulting the Judicial Service Commission (JSC). This was despite that he knew fully well that the government and JSC had resolved that this and other high-profile trials should be allocated to foreign judges.
Lieutenant General (Lt-Gen) Kamoli is accused alongside politicians, Mothetjoa Metsing, Selibe Mochoboroane, Captain Litekanyo Nyakane, Lance Corporals Motloheloa Ntsane and Leutsoa Motsieloa.
The treason and murder charges are in connection with the 30 August 2014 attempted coup against the first government of former Prime Minister Thomas Thabane.
Last month, DPP Motinyane unsuccessfully petitioned Justice Sakoane to recuse himself from the case on the grounds that he could be biased against the prosecution.
However, in delivering his verdict on 26 January 2022, Justice Sakoane said the DPP’s fears that he was unlikely to be impartial, merely because he had castigated her and barred lead prosecutor Abrahams from prosecuting the case, were unjustified.
The DPP, who was angered by what she sees as temperamental and injudicious language by the chief justice against her, including Judge Sakoane’s insinuation that she should go back to law school, did not take the judgement lying down.
Her lawyer, Advocate Rafoneke, yesterday told Justice Sakoane that she wanted to challenge his recusal ruling in the Court of Appeal because she believed Justice Sakoane would not administer justice due to his alleged bias against the prosecution.
In her application, DPP Motinyane also argued that Justice Sakoane was wrong to have allocated himself the treason and murder trial when he knew fully well that the government and the JSC had resolved that the high-profile matters be adjudicated by foreign judges.
Three foreign judges, namely Zimbabwe’s Charles Hungwe and Botswana’s Kabelo Lebotse and Onkemetse Tshosa, were engaged by the government and JSC in January 2019 to try the high-profile trials involving politicians and members of the national security agencies.
At the time, then Justice and Correctional Services Minister, Mokhele Moletsane, said although local judges were competent enough to try the cases, the government and SADC felt it necessary to engage foreign judges because the cases in question were politically sensitive. He said the verdicts of the foreign judges were less likely to be viewed as biased.
However, Justices Lebotse and Tshosa resigned in May 2020 and August 2021 respectively, complaining of poor working conditions, among other things. They were also unhappy about the delaying tactics deployed by the suspects to stall the trials.
Their resignations left Justice Hungwe with the herculean task of presiding over some of the high-profile trials by himself. Some of the cases, including the treason and murder trial, were taken over by local judges including Justice Sakoane.
In her latest application, DPP Motinyane argues, “the chief justice erred and misdirected himself in appointing himself as the trial judge in CRI/T/0001/2018 (treason and murder trial)”.
“More specifically, the learned judge failed to have regard to the underlying processes, rationale and policy considerations followed in the appointment of foreign Judges to adjudicate in the matter of the respondents (Kamoli and his co-accused) as articulated and considered by the Constitutional Court in Mokhosi & 15 Others v Justice Charles Hungwe & 5 others when he appointed himself to preside over the trial of the respondents.
“The learned judge failed to consult the executive and the Judicial Service Commission prior to what amounts to self-reviewing the decision to appoint foreign judges by appointing himself as the trial judge in CRI/T/0001/2018,” DPP Motinyane argued.
In December 2021, Justice Sakoane had set 10 to 20 January 2022 as the trial dates. This was despite that Adv Abrahams had already indicated that he had other commitments in his native South Africa, the DPP argues.
She is also of the view that while the chief justice has been hard on the prosecution for seeking a deferment of the case to allow prosecutor Abrahams, who had already indicated his unavailability on the dates set by the chief justice to finish his other business elsewhere, he failed to censure the defence lawyers who have been responsible for much of the years of delays in the case after they filed multiple applications to halt the beginning of the trial. It was partly because of the Stalingrad behaviour of the defence lawyers which had caused the two Botswana judges to quit, the DPP argues.
But Justice Sakoane and DPP Motinyane seem to have primarily gone to war over the Abrahams issue. The DPP is adamant that the Chief Justice should not have proceeded to set the 10 to 20 January 2022 date when he had been told Mr Abrahams would be absent. Indeed on 10 January 2022, Adv Abrahams did not show up in court as had been anticipated and DPP Motinyane then sought a postponement of the trial. This did not go down well with Justice Sakoane who refused to postpone the case and then went ballistic, using “injudicious” language to attack both Adv Abrahams and the DPP.
The top judge even warned that he could end up freeing the suspects if the prosecution continued to dilly-dally.
The DPP had then resolved that Adv ‘Naki Nku would prosecute the case in Adv Abrahams’ absence. But Adv Abrahams showed up in court on 17 January 2022, ready to resume his role, only for Justice Sakoane to bar him. He said it was “untenable” for Advocate Abrahams, who had been absent from court to suddenly return and take over as lead prosecutor from Adv Nku, who had replaced him in his absence.
Justice Sakoane also charged DPP Motinyane with perjury for “lying” to him that Adv Abrahams would not be available.
Although Justice Sakoane eventually cleared Advocate Motinyane of perjury, the DPP was still unhappy with his conduct. She subsequently filed the ultimately unsuccessful application for the recusal of the chief justice from presiding over the treason trial.
In her latest application for leave to appeal to the apex court, DPP Motinyane still maintains that Justice Sakoane will not bring an impartial mind to the trial. She also argues that Justice Sakoane is the one who actually double-booked Adv Abrahams by imposing the January 2022 trial dates yet the latter had already indicated his unavailability.
“The Chief Justice erred and misdirected himself in not having regard to the correct facts in consideration of the apprehended bias and the reasonable perception of bias that he will not bring an impartial mind to bear on the adjudication of the matter. More specifically in finding that all counsel agreed that the trial should proceed from 10 to 20 January 2022; the learned judge erred and misdirected himself in stating there was no suitable dates after the opening of the High Court in February 2022.
“The judge misdirected himself in finding that the DPP had appointed Adv Nku to lead the prosecution; the court erred in the manner in which it conducted itself in determining the pressing need to give priority to the trial. The learned judge erred and misdirected itself in first stating that Ms Nku had stated she could not proceed as she had not been appointed as the lead counsel and later in the self-same judgment that she could not proceed absent an instruction from the DPP to proceed.
“The judge erred in finding that Mr Abrahams was out of the prosecution team and finding that Mr Abrahams committed to the trial dates on the realisation of double-booking. The court misdirected itself in finding that counsel retained by the DPP engaged in double-booking and feeds the DPP with false information, and that the lead crown counsel had abandoned the matter, when the court had doubled-booked counsel.
“The Chief Justice erred and misdirected himself in not finding that his conduct, both cumulatively and independently, would be biased against the Crown, in that the learned judge would not bring an impartial mind to bear on the adjudication of the trial of the Respondents. The Chief Justice misdirected himself in finding that the DPP’s apprehension of bias in the application for the learned judges recusal failed the double-reasonableness test,” DPP Motinyane argues.
Yesterday, the defence lawyers filed their intention to oppose DPP Motinyane’s application for leave to appeal Justice Sakoane’s recusal judgement.
Justice Sakoane then ordered the Crown to file its heads of argument by tomorrow (Friday) and the defence lawyers to file theirs by Monday. He said he would not hear any oral submissions but decide the matter on the basis of the papers filed by both sides. He said he would deliver his ruling on 7 March 2022.
