Moorosi Tsiane
FOUR of 27 soldiers imprisoned over their participation in an array of crimes during the period of heightened political instability in the country have been finally freed on bail.
The four are Lance Corporals Khauhelo Makoae and Sebilo Sebilo, Privates Tšepo Tlakeli and Thebe Tšepe.
They stand accused of murdering Thabang Mosole, Monyane Matsie and Pakiso Ntala Letatane at Ha-Motanyane, Mafeteng in 2012. They have been incarcerated since 2017. Their trial only started in 2019.
Justice Polo Banyane released them on M5000 bail and M25 000 surety each.
However, their co-accused, Captain Litekanyo Nyakane, did not even bother to apply for bail as he still faces a litany of other serious charges.
They have been incarcerated since 2017 when they were arrested alongside former army commander, Tlali Kamoli, and others who remain jailed.
Justice Banyane released the four yesterday, saying she was convinced the Crown was not serious about having the trial finalised. The accused had to be afforded their rights to a fair and speedy trial, she said.
Their release follows last week’s non-appearance in court of the case’s prosecutor, Mosoeunyane Masiphole. He is a private lawyer engaged by the Director of Public Prosecutions (DPP), Hlalefang Motinyane, to prosecute the case.
He failed to appear in court when the trial was due to proceed before Justice Banyane, miffing he judge in the process.
One Adv Thibinyane from Adv Masiphole’s chambers had instead appeared in court on 15 January 2024 to tender Adv Masiphole’s sicknote.
This did not go down well with Justice Banyane who said Adv Masiphole did not have the authority to delegate appearance on behalf of the DPP’s office. The judge said only DPP Motinyane could assign someone else to appear before her. What angered the judge most was that the sicknote was tendered just 30 minutes before the set court time of 2.30pm.
She then postponed the matter to 17 January as the doctor’s note excused Adv Masiphole from work until 16 January. She also ordered Adv Masiphole to bring his medical booklet for scrutiny by her.
Nonetheless, Adv Masiphole was still a no show that Wednesday morning. Adv Tsebiso Fuma from DPP’s office appeared instead, informing the court that he had been informed by Adv Masiphole that same morning that he (Masiphole) was feeling worse than on the 15th January and had thus gone back to the doctor.
One of the defence lawyers, Adv Napo Mafaesa, had already raised concerns that Adv Masiphole was playing delaying tactics because he did not have witnesses ready to testify in the case.
Justice Banyane ordered the witnesses present in court to stand and only Lesotho Defence Force Commander, Lieutenant General Mojalefa Letsoela, stood up. However, it appeared that Lt-Gen Letsoela had not been on the witness list and that caught the defence by surprise.
This then prompted Justice Banyane to demand the copies of subpoenas issued to the seven state witnesses who are yet to testify in the case. She had ordered that they be brought before court on 19 January 2024. To her utter dismay, all the prosecutors did not pitch up. Neither Adv Masiphole nor Adv Fuma were before court that Friday.
The enquiry which the judge intended to pursue could not proceed due to the non-appearance of these prosecutors. Neither was there any communication from Adv Masiphole nor Adv Fuma for reasons they were not before court.
Justice Banyane adjourned the proceedings for 15 minutes for her clerk to call DPP Motinyane to explain the absence of the prosecutors. Justice Banyane said the information they got from the DPP was that she was not aware that her prosecutors were not before court.
The irate Justice Banyane then ordered their arrest.
The two were then hauled before court by the police on Monday this week. They were in the company of their lawyer, one Adv Potsane.
Adv Masiphole maintained his sickness had hindered him from coming to court last week. However, the judge was still adamant she wanted to jail Adv Masiphole.
The prosecutor was saved by Adv Karabo Mohau (KC) (who is also Capt Nyakane’s lawyer) who pleaded for the judge’s mercy. Adv Fuma was freed after it appeared he only had instructions to stand-in for Adv Masiphole on 17 January only.
The defence lawyers had since last week sought bail but the case was deferred to allow Adv Masiphole to be present to represent the State. Capt Nyakane did not apply for bail.
This was their third attempt after the first attempt was denied by Justice Onkemetse Tshosa (who was previously seized with the case) in 2019. The second attempt was denied by Justice Banyane in December 2023. They finally succeed yesterday after arguing their case on Monday this week.
Delivering her judgement, Justice Banyane said since she took over the case in 2021 (when Justice Tshosa resigned), the Crown had been dragging its feet and that had affected the accused’s rights to a fair trial.
“My role as a judge is to balance the liberty of the accused and the prescripts of the administration of justice. The accused have a right to have their trial completed within a reasonable time… It is incumbent for the prosecution to understand and abide by court rules,” Justice Banyane said.
“The observation I have made is the sluggishness and lack of commitment from the Crown including the police. It does not look like Crown is prepared to have this matter finalised anytime soon.
“There are a lot of unanswered questions about efforts by the prosecution to try and secure witnesses. There is clearly no interest to have this matter proceeding to finality. There is uncertainty on availability of witnesses, and it is not fair to keep the accused in jail until the prosecution is ready.
“The delays caused in these two years are because of the Crown. ….I am releasing them on bail on condition that they each pay bail deposit of M5000….surety in the amount of M25 000 either as a cash or property of that value.”
She further ordered them to surrender their passports to the Registrar of the High Court, not to interfere with the state witnesses, attend all hearing dates and abide by the judgement at the end of the trial. Justice Banyane also said they must report at Police Headquarters every Friday between 8am and 4.30pm.
The matter will proceed from 5 to 9 August 2024.
