‘I have the right to be treated with respect’
Advocate Thulo Hoeane is not a happy man after his bid to get High Court judge, Justice Teboho Moiloa, off the trial of Lehlohonolo Scott and his mother, ’Malehlohonolo, failed last week. The lawyer had applied for Justice Moiloa’s recusal, arguing his clients would not get a fair trial under the judge. The Scotts were arrested on 12 July 2012 for allegedly killing and mutilating their Koalabata neighbours, Moholobela Seetsa (13) and Kamohelo Mohata (22) in January and June 2012, respectively. Lehlohonolo escaped from Maseru Central Prison on 14 October 2012 while awaiting trial but was arrested in Durban, South Africa, on 6 April 2014. He was extradited to Lesotho on 21 October 2015. In this wide-ranging interview, Advocate Hoeane tells Lesotho Times (LT) reporter, Lekhetho Ntsukunyane, about his disappointment and that he is taking the matter to the Constitutional Court in his battle to get Justice Moiloa off the case.
LT: You have failed in your bid to have Justice Moiloa off the Scotts case, which should have come as a blow to you and your clients. Could you briefly remind us of what made you decide to seek the judge’s recusal?
Hoeane: The recusal is based on the fact that I am not satisfied with the way the judge has been conducting this case. Let me give you a practical example of what happened in court. There was an instance where the prosecution failed to hand in exhibits, which is something they ought to do under normal circumstances. When I cross-examined the witness about this failure, he conceded this had not been done. And if the exhibits had not been placed before court to form part of the court record, it means they are not evidence in that court. The judge then made a ruling that he was going to accept those exhibits. I don’t have a problem with the judge making a ruling because that is part of his duties as the trial judge. My problem with Justice Moiloa is that those exhibits were actually handed in as evidence by him. He just made an order. The prosecution and witnesses were not involved.
LT: What should have happened, in your view?
Hoeane: Such evidence should have been tendered by the witness, so that the witness can be cross-examined on that evidence. Now, if the evidence is tendered by the court itself, how do I cross-examine the court? Inevitably, that leads to a situation where I am in no doubt that the judge has now taken a side. He’s now on the side of the prosecution because this was the prosecution witness. The judge has actually joined the prosecution so that you find no distinction between the prosecution and the judge. That is my problem and I applied for that recusal on that basis. Besides that, if you read the recusal application judgement, there are words like “nonsense”. The reaction of the judge where he refers to submissions made by myself in court as amounting to nonsense is unacceptable language.
As lawyers, we are expected to respect the courts. And if the courts don’t respect us, for instance the judge says what I am saying is rubbish and if I were to reply that what the judge is saying is worse rubbish, you see where that would take us? Firstly, the court would lose respect. We are people who are supposed to dispense justice in this country. I have the right to be in that courtroom. I have the right to be treated with respect. I respect judges. I respect Justice Moiloa. But judges must not talk to me in that manner. I find it totally unacceptable. And for that matter I am so annoyed by this thing that I am going to take up the matter with the Chief Justice. This particular part of the judgement where he says what I am saying is nonsense, I want the Chief Justice to intervene. Justice Moiloa, at the end of the day, must retract or apologise for those words because I don’t think that is the way criminal trials should be conducted. I am worried about such language.
LT: So how are you going to continue working with Justice Moiloa in this trial as it resumes on 17 October this year?
Hoeane: We are saying we don’t have confidence in this judge. He insists that we are talking nonsense. He insists, therefore, that he will continue to preside over the matter. How do you preside over a case when we have shown that we don’t have confidence in you? But what we are going to do very soon before the end of June, is institute a constitutional case that the Scotts are not going to get a fair trial before Justice Moiloa. The Scotts are entitled to a fair trial in terms of the Constitution. His conduct during the recusal application has clearly indicated that he cannot bring an unbiased mind into this matter. This is why we are taking up this matter with the Constitutional Court, that it must set aside his refusal to recuse himself. If that fails, because we cannot preempt what the courts are going to decide, we are taking up this matter with the Court of Appeal. I will take up this matter even with the highest court in this country to make sure that we get Justice Moiloa off this case.
LT: Do you mean you have started preparing the constitutional matter?
Hoeane: I am consulting with my clients now. I think around 15 June, I should have drawn up all the papers and I will be ready to file the case before the Constitutional Court.
LT: What reasons did the judge give when he dismissed your recusal application?
Hoeane: The judge misdirected himself because my application is based on the fact that he jumped into the arena – the court arena. This is supposed to be between me and the prosecution. The judge is supposed to be sitting where he is sitting as an impartial person. He is not supposed to assist the prosecution or defence. And in this case, I am saying he jumped into the arena. Now what he was saying is that I brought this recusal application because I was dissatisfied with the ruling that he made regarding the admission of the exhibits, which were not properly handed in by the prosecution. That is not my case! That is why I am saying he misdirected himself. I am complaining about his conduct of handing in exhibits. Like I said earlier, if a judge hands in exhibits, then I am entitled to cross-examine the judge. What will become of this case? This will not be a trial at all. What he did was irregular and I stand by what I am saying.
LT: What were you expecting the judge to do after you raised your argument that the exhibits were not submitted properly before the court?
Hoeane: What should have happened was that he should have asked the prosecution why they did not hand in the exhibits because it was clear they failed to do so. The prosecution then ought to have been requested to hand in those exhibits properly. It should be clear I am not against the admission of the exhibits, I am against the manner in which they were submitted. It is on that basis that I am going to the Constitutional Court for intervention.
LT: You once said you wrote to Chief Justice for intervention in this trial. Has she responded?
Hoeane: I have a lot of respect for the Chief Justice. She is a very fair lady. I wrote a letter to the Chief Justice to intervene because the Registrar of the High Court, Mr Lesitsi Mokeke, was saying he was not going to reengage me after my withdrawal. The Chief Justice then intervened and levelled the playing field by saying she wanted to hear all the sides to this problem. I was invited into chambers with both the accused persons because the Chief Justice wanted to make a decision after hearing both sides. Mr Mokeke had his own version. His position was that he was not going to engage me. And there was nothing that obliges him to reengage me. And I was insisting that I had to be reengaged because the Scotts are not interested in anybody else to represent them, except me. The Chief Justice intervened and indicated to me that I had to be reengaged, not because the Scotts were insisting on it but because over time, since 2012, I had built a rapport with them and there was now a situation of trust and confidence between them and me. As I speak to you now, that is the position.
LT: There is some public opinion that you and your clients could be playing games in this trial, especially following your initial withdrawal. What do you say to that?
Hoeane: That was another unfortunate comment that the judge made. What games he was talking about, I do not know. I know for a fact that for one reason or another, Lehlohonolo Scott had to change lawyers while he was in Durban, South Africa, the main reason being that he was unable to pay fees for those lawyers. He would engage one lawyer and the lawyer would take the matter forward but at some stage that lawyer would then have to withdraw because Lehlohonolo would run out of money. He would then look for another lawyer, perhaps a cheaper lawyer than the previous one. This is my understanding of the numerous postponements around this case, which happened in Durban. For the judge to say, at this particular point in time, we are playing games is an unfortunate statement. Nobody is playing games. I want to see this matter go forward. I want to see this man (Lehlohonolo) tried for the crimes that he is being charged with, which occurred in Koalabata in 2012. I am not here to play games. I know where to play games, and courtrooms are not the right place to play games. But I will stand for my rights and that of the accused persons so that I represent them in a manner which also satisfies me as their legal representative.
LT: At one point, you complained about alleged government interference into this matter. What did you mean by that?
Hoeane: I know exactly what was happening. And I was very concerned about that. I still stand by that up to now, although a lot of threats were made to me subsequent to that. I was threatened with arrest and so on. I didn’t bother about that arrest because Lehlohonolo Scott would be my first witness. I was against the investigating officers in this matter seeing Lehlohonolo Scott in prison and trying to get him to implicate opposition politicians, specifically Thomas Motsoahae Thabane (exiled leader of the All Basotho Convention and former Prime Minister). When I heard this I immediately rushed to prison and informed Lehlohonolo Scott, as my client, that if these people are going to come up with these issues you must have nothing to talk with them again. This case has no politics in it. There is no opposition leader involved in this matter. So for anybody to say you must implicate opposition people in this trial is also highly unfortunate. We have got to stick to the trial that relates to two murders which occurred in Koalabata in 2012, and the escape charge. I want this matter to remain a criminal case and nothing else. Those that are not involved in it should not be implicated in any manner.
LT: You also, at another point, complained about how Lehlohonolo was confined in prison, suggesting he was being discriminated against…
Hoeane: I’m still not satisfied with the way that he is being confined. He is confined in a place called New Block. New Block is a prison within a prison. It is the most secure place in that prison. There are about 10 to 15 people at the moment occupying that particular block. These people interact at some stage but they are all in single cells. But at some stage they are let out of cells to interact with each other in the square. Lehlohonolo Scott has no contact with these people. He is being treated differently from the other prisoners. He is isolated not only from the public by being in jail, he is also being isolated from other inmates who have the advantage of interacting with each other. My concern is if he is a New Block prisoner, he’s a high security prisoner, so why is he being subjected to treatment which is discriminatory? Why single him out?
LT: Have you challenged this in court?
Hoeane: I have not done that yet. There was a time when he was chained. He had his feet and hands in chains. There was a time I indicated this to the prison authorities and the leg-irons and handcuffs were removed. He was chained 24-hours, every single day. But he is no longer chained hands and feet now.
LT: Lehlohonolo escaped from prison before. Is there some guarantee he will not flee again now?
Hoeane: That’s a difficult question. It remains to be heard whether Lehlohonolo Scott indeed fled from prison, like people put it, or he was abducted. But we will cross that bridge when we get to it.