End of the road for Kamoli and accomplices

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  • as Appeal Court dismisses bid to stop all high-profile trials

Mohalenyane Phakela

FORMER army commander Tlali Kamoli and all other serving and former members of the security agencies have now exhausted all legal channels and they will now have to stand trial for various crimes including treason, murder and attempted murder.

This after the Court of Appeal ruled that the Constitutional Court had no jurisdiction to entertain their applications to stop the High Court from trying them for their alleged crimes.

The apex court’s Friday judgement was delivered after the Director of Public Prosecutions (DPP) Advocate Hlalefang Motinyane had appealed against the Constitutional Court’s decision to hear Lieutenant General (Lt-Gen) Kamoli and others’ September 2020 application to stop their trials.

Last September, Lt-Gen Kamoli and other serving and former members of the national security agencies joined forces to file a constitutional application for a permanent stay of their trials.

His co-applicants included Major Pitso Ramoepane, Senior Superintendent Thabo Tsukulu, Captain Litekanyo Nyakane and Lance Corporal Leutsoa Motsieloa.

Among other things, they argued that they should be released on the grounds that they have been held in remand prison for far too long in violation of their rights to speedy trials. They also wanted a tribunal to be set-up to inquire into the fitness of Justices Charles Hungwe (Zimbabwe) and Onkemetse Tshosa (Botswana) to preside over their trials.

As part of their application, Lt-Gen Kamoli and his co-applicants asked the Constitutional Court to order the High Court and Court of Appeal Registrar, ‘Mathato Sekoai, to furnish them with a copy of the government and the Judicial Service Commission (JSC)’s agreement with the European Union (EU) and SADC for the recruitment of foreign judges to preside over their trials.

They argued that they needed a copy of the agreement to bolster their main application for a permanent stay of their trials.

The Constitutional Court bench comprising of Justices Tšeliso Monapathi (presiding), Moroke Mokhesi and Keketso Moahloli duly granted their application for a copy of the agreement on 11 December 2020. It has still not ruled on their main application for a permanent stay of their trials.

Dissatisfied with the Constitutional Court ruling, DPP Motinyane approached the Court of Appeal to overturn the interlocutory ruling. Her lawyer, Adv Christopher Lephuthing argued that the Constitutional Court lacked jurisdiction to have entertained the entire application, mainly because the issues brought before it by Lt-Gen Kamoli and his co-applicants had already been decided by other courts.

Over the weekend, the appeal court bench comprising of the court’s president Justice Kananelo Mosito, Justices Phillip Musonda (Zambia), Petrus Damaseb (Namibia), Moses Chinhengo (Zimbabwe) and Johanne Van Der Westhuizen (South Africa) granted DPP Motinyane’s application and dismissed the entire proceedings in the Constitutional Court.

The appeal court judgement, written by Justice Mosito and made available this week, states that “the High Court sitting as the Constitutional Court should have declined to assume jurisdiction in respect to all the issues raised by the respondents (Lt-Gen Kamoli and others) in the application before it”.

“It is (therefore) declared that the High Court sitting as the Constitutional Court had no jurisdiction to entertain issues that are properly before presiding judges and on which the judges have already decided in criminal trials.

“It is declared that the High Court sitting as the Constitutional Court should have declined to assume jurisdiction in respect of all issues raised by the respondents (Lt-Gen Kamoli and others) in the application before it.

“The interlocutory order made by the High Court on 11 December 2020 falls. For the avoidance of doubt, it is set aside.”

Justice Mosito further ruled that it was wrong for the Constitutional Court not to have entertained the question of jurisdiction before making any orders even though the matter of its jurisdiction had been raised by Adv Lephuthing. He also said it was wrong for Justice Monapathi and others to have entertained Lt-Gen Kamoli and others’ application because by so doing, the court was thus interrogating the proceedings which were already in the High Court before Justices Hungwe and Tshosa.

“It is trite that the power and competence of any court is not unlimited. There will always be some limitation on the jurisdiction of every court imposed either by the statute or by common law. In every case therefore, the court before which an objection to jurisdiction has been raised has an unshakeable duty to determine that objection first and pronounce itself on the limitations to jurisdiction upon which the objection is based. If a court has no jurisdiction to hear and determine a matter, that court simply cannot make any order in the matter other than an order declining jurisdiction and an order as to costs, as may be appropriate.

“Consequently, if we determine that the High Court sitting as a Constitutional Court did not have jurisdiction as contended by the appellant (DPP Motinyane), it will not be necessary for us to consider any other issue in this appeal. A lack of jurisdiction is terminative of proceedings before any court or brings them to an end entirely.

“At common law, a court does not have the power to set aside or vary an order of another court of equal jurisdiction. The High Court sitting as a Constitutional Court has no jurisdiction to hear and determine issues that arise from on-going criminal trials before other judges of the High Court. The reason that the court ordered the production of electronic records in on-going criminal trials before their colleagues, Justices Hungwe and Tshosa, was to interrogate the manner in which the latter are handling the trials before them with a view of declaring them unfit to hold office of judges or to direct the JSC to recommend to the King (His Majesty) that they be removed as judges, as prayed by the respondents.”

Justice Mosito also ruled that the Constitutional Court was wrong to re-visit issues that had been decided by the Court of Appeal in a case which had been filed by former Defence and National Security Minister Tšeliso Mokhosi and Lt-Gen Kamoli in 2019 to nullify the recruitment of Justices Hungwe and Tshosa.

“In the Tšeliso Mokhosi matter, this court held that the appointment of Justice Hungwe and other foreign judges to hear the criminal cases was constitutional and that the respondents made ‘unproven allegations that members of the executive initiated the appointment of foreign judges to ensure that they are convicted and sentenced’.

“This court held that ‘the government reached an agreement with SADC that foreign judges be recruited because the toxic political climate and prevailing insecurity in the country raised the prospect that the ends of justice might not be fully met by assigning those cases to local judges who are not only already carrying a heavy workload but are affected by the insecurity and turmoil that have afflicted the country’. Although the (September 2020) application (by Kamoli and others) before the High Court has a slightly different bend, it is essentially concerned with the respondents’ resistance to trial by foreign judges when this court found that to be completely in order.

“The respondents’ application…is clearly an attempt to re-visit the issue disposed of by this court. Sixteen of the present respondents were applicants in the Tšeliso Mokhosi matter. The fact that there are more applicants in the main matter now before the High Court cannot make any difference. The parties remain substantially the same and the (Constitutional) Court had no jurisdiction to entertain a matter on an issue that had been finally disposed of by this court…

“It is evident that the respondents’ claims in the application before the High Court have either been litigated upon or are properly matters to be decided by the trial court. Had the High Court properly considered the issue of jurisdiction as placed before it, we have no doubt that it would have, at the very least, declined to assume jurisdiction in the matter and that would have been the end of the application…,” Justice Mosito ruled.

The ruling means that Lt-Gen Kamoli and others have now exhausted all legal channels to stop the state from trying them. They will now have to stand trial for various crimes before Justices Hungwe and Tshosa- the judges’ whose recusal they sought.

Among others, Lt-Gen Kamoli will have to stand trial for treason against the first government of former Prime Minister Thomas Thabane. He has other pending murder trials including the June 2015 murder of former army commander, Lt-Gen Maaparankoe Mahao.

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