Moorosi Tsiane
EIGHT police officers accused of murdering three detainees will have to wait at least three months to learn their fate.
This follows Chief Justice Sakoane Sakoane’s Tuesday decision to reserve judgment in a constitutional interdict application brought by the officers to try and halt their prosecution for murder.
In February this year, the Director of Public Prosecutions (DPP), Hlalefang Motinyane, issued a directive for the prosecution of former Leribe Criminal Investigation Division (CID) boss Superintendent Mabohlokoa Makotoko, alongside Inspector Tšepo Molaoli, Detective Inspector Mathibe Mathibe, Sergeant Abiel Ponoane, Police Constables Bongani Mzamane, Tumelo Ntabanyane, Motero Mokhethi, and Women Police Constable Mpuleleng Lengoasa.
They are to be charged with the murder of detainees who allegedly died in police custody.
However, the accused approached the Constitutional Court seeking an interdict to stop the DPP from proceeding with the charges, arguing that an inquest into the matter is still ongoing before the Hlotse Magistrate’s Court.
Advocate Christopher Lephuthing, representing the officers, argued before a panel comprising Chief Justice Sakoane Sakoane, Justice Maliepollo Makhetha, and Justice Mamokhali Shale that the DPP was “abusing” her constitutional powers by proceeding with charges despite the pending inquest.
“My Lord, we are seeking relief because the DPP is abusing her powers. She has directed that my clients be charged with the murder of two detainees who died at the Hlotse police cells in 2019,” submitted Adv Lephuthing.
However, the judges questioned the basis of the application and whether the applicants had no other alternative remedies.
Adv Lephuthing insisted that his clients had exhausted all alternatives.
“The DPP exercised her constitutional powers in issuing the directive. Our application is grounded in Section 22 of the Constitution, as there is no alternative redress. We also rely on Section 12, which guarantees the right to a fair trial. The prejudice against my clients began during the pre-trial preparations,” he argued.
He further contended that his clients had no involvement in the deaths and were not on duty when the alleged incident occurred.
“We are challenging the DPP’s decision to charge them. We request a stay of charges until the inquest is concluded,” he added.
Chief Justice Sakoane, however, challenged the merits of the argument.
“Counsel, how does a directive between the Commissioner of Police and the DPP violate your clients’ rights? Pre-trial prejudice relates to the conduct of investigators, not what you’re claiming. Are your clients above the law? Why can’t they allow the DPP to do her work and defend themselves in court? What are they afraid of? If they act as though they are immune to prosecution, then they should be arrested,” said the Chief Justice.
He also said if the officers were not on duty at the time, they could present their alibi during trial, not before the Constitutional Court.
Representing the state, Advocate Thomas Thakalekoala argued that Adv Lephuthing had brought the matter before the wrong court.
“The DPP is exercising her constitutional powers and can only be stopped if it’s proven beyond reasonable doubt that she’s abusing them. Furthermore, there are no accused persons yet. This is the wrong forum, other remedies exist which should have been exhausted before coming here. We therefore request that the application be dismissed,” Adv Thakalekoala argued.
After hearing submissions from both sides, Chief Justice Sakoane reserved judgment.
“The court will take time to deliberate. We have up to three months to deliver judgment, and once it’s ready, you will be informed.”
