THE trial of four soldiers accused of the attempted murder of former Lesotho Times and Sunday Express editor, Lloyd Mutungamiri, has been postponed to 30 August 2022.
This after the lawyers of the accused told Maseru Senior Resident Magistrate Peter Murenzi yesterday that they had filed an application challenging the decision of the Crown to turn one of the suspects, Mahanyane Phusumane, into an accomplice witness.
Phusumane was turned into a state witness on 3 September 2019 and freed from Maseru Central Correctional Institution where he had been remanded alongside the four. They are Rapele Mphaki, Khutlang Mochesane, Nyatso Tšoeunyane and Maribe Nathane.
The four are represented by Advocates Letuka Molati, Karabo Mohau and Kabelo Letuka.
They had argued on 25 July 2022 before Magistrate Murenzi that they should be discharged because there was no prospect of them ever getting a fair trial.
Their contention was that Phusumane was privy to their defence strategy. Now that he had been turned into a state witness, he could use this against them, thus comprising their rights to a fair trial, they argued.
Lead prosecutor, Rethabile Setlojoane, had counter argued that the referral application was a delaying tactic by the accused who are only raising the matter now.
He said on 4 September 2019, the defence lawyers said they were going to file a constitutional application challenging Phusumane being made a witness.
He said even though the trial was deferred to allow the filing of that application, it never happened.
The defence did not have the chance to reply on that day due to the electricity cut at the Maseru Magistrate Court and the matter was postponed to 3 August 2022.
However, Adv Molati yesterday said they had filed an application in the magistrates’ court seeking the referral of the matter to the Constitutional Court to determine whether the trial should not be permanently stayed for want of fair trial principles.
He said he no longer needed to address the court because all was contained in their filed court papers.
“There is a substantive application accompanied by the heads of argument which has been filed and that replies to issues which have canvassed,” Adv Molati said.
“The initial referral application was withdrawn because jurisdictional facts had not materialised in that Mahanyane Phusumane had not been called to testify but now we know that he is a state witness, hence the filing of the application.”
Adv Setlojoane said the defence had agreed to oral submissions and therefore the court needed to reject the substantive application. He also argued that the Crown was never served with the initial application and therefore knows nothing of its withdrawal.
“When was the (initial) application withdrawn because we were never served with the notice of withdrawal. We were only served with a new application a few hours ago and we object to the kind of procedure they seek to adopt. They decided to proceed with oral application and was left was for them to reply. Our plea is that the court proceeds with oral submissions,” he submitted.
Adv Mohau maintained that the first application was withdrawn before court because they had realised they had brought it prematurely while Adv Setlojoane argued that there was never such an application.
Magistrate Murenzi interjected in that they could not dwell on the past but had to map the way forward.
“I have received the written submissions of the defendants and it is prudent that the Crown does likewise as soon as practical. I need written submissions so that if this matter escalates to the High Court, there would be a proper record from this court. We now have to agree on a way forward,” Magistrate Murenzi said.
The parties then agreed to return to court on 30 August 2022 to map the way forward.
Mr Mutungamiri was left for dead when he was ambushed by soldiers as he arrived and attempted to open the gate at his home in Maseru after finishing duty at the Sunday Express on 9 July 2016.