- as the Crown concedes that it lied to get the arrest warrant issued
- Mothae had not been informed of court dates as originally claimed
- Judge threatens to jail Mochoboroane instead for absence in court
Moorosi Tsiane
High Court judge, Justice Maliepollo Makhetha, has withdrawn a warrant of arrest she had issued against retired Colonel (Col) Tanki Mothae on 18 March 2024.
This after Crown prosecutors admitted that they lied to court to get the warrant issued. Col Mothae had not been informed of the court dates well in advance as the Director of Public Prosecutions (DPP)’s office had claimed in court.
An irate Col Mothae had lambasted the DPP’s office after news broke out that a warrant of his arrest had been issued over his non-appearance in court. Col Mothae insisted he had not been forewarned of the court dates resulting in him travelling on family business to Zambia.
Col Mothae took the stand on Monday and told Justice Makhetha that the prosecutor, Advocate Motene Rafoneke, had lied to the court that he (Mothae) was aware he had to be in court last month to continue with his evidence.
Justice Makhetha also blasted Health Minister, Selibe Mochoboroane, who is one of the accused, for failing to appear before court, thus forcing the judge to postpone the trial.
The treason and murder trial of Mr Mochoboroane, Lesotho Congress for Democracy leader Mothetjoa Metsing, former army commander Tlali Kamoli and three other soldiers had been scheduled to proceed from Monday until tomorrow.
Col Mothae was supposed to continue with his evidence from where he had left the last time he was in court on 29 May 2023.
However, he first had to explain why he was not before court on 18 March.
“I was not aware that I was supposed to be before court on that day My Lady. The last time I was in court was in May last year and it was said the matter will continue in August last year from there I never got any updates of new dates,” Col Mothae said.
“The only time I learnt about it was on Sunday (17 March), just a day before the trial day and unfortunately I was not in the country then.”
Justice Makhetha put it to him that the Crown had said he knew he was supposed to be in court but Col Mothae denied that and said the Crown was lying, further asking the court to cancel the warrant of arrest.
“It was not going to be easy logistically for me to travel from Zambia even if I wanted to come on Monday. It was not going to be possible.
“My Lady I would like to express my discomfort at being slapped with a warrant of arrest. I am a very responsible citizen of this country who abides by its laws, but now I am being made to appear like a criminal and that is not so. I therefore humbly request that the warrant of arrest against me be cancelled,” said Col Mothae.
For his part, Adv Rafoneke conceded that it was a mistake to say Col Mothae had always been aware of the March court dates.
“We managed to refer back to the records and it has become apparent that on 29 May 2023 when this witness was before court, no further dates of trials were appointed. The submission on 18 March 2024 were faulty so we can only reiterate his plea and we pray Her Ladyship to reconsider and cancel his warrant of arrest,” submitted Adv Rafoneke.
Judge Makhetha therefore cancelled Col Mothae’s warrant of arrest.
Col Mothae is the first of the 91 Crown witnesses in the treason and murder trial. Messrs Metsing, Mochoboroane and Kamoli stand accused alongside soldiers Captain Litekanyo Nyakane, Corporals Motloheloa Ntsane and Leutsoa Motsieloa. Only Kamoli and Nyakane are in remand prison while their co-accused are now all out on bail. This could be because Kamoli and Nyakane face a litany of other murder, attempted murder and assault charges.
Nonetheless, the case still could not proceed because Col Mothae could not testify in the absence of another accused person, Mr Mochoboroane, who was said to be in China on an official trip.
Mr Mochoboroane’s lawyer, Adv Motiea Teele KC, informed the court that his client had travelled to China on business for “issues relating to doctors” and the opening of the Maseru District Hospital built for Lesotho by the Chinese government.
“He left on Sunday 21 April 2024, and he will return on 27 April. The trip is of national significance and importance. I am in a difficult position to have to apply for postponement. However, if it is permissible to proceed with the case in his absence I will agree,” submitted Adv Teele KC.
Justice Makhetha granted the postponement to the next allocated dates which are 20 to 31 May 2024.
However, she was not happy with Mr Mochoboroane’s absence.
“Why couldn’t there be an alternative for the trip? It doesn’t make sense for me to say only accused number six (Mochoboroane) can execute the mandate of the executive. Unless I am told the executive is not supporting the judiciary on the execution of its mandate to administer justice, to the extent that executive orders carry more weight in terms of command to the orders of this court.
“I am not comfortable with the decision of the executive. The executive arm of government should be seen supporting the judiciary not acting against the orders of this court. Much as the trip is very important for the nation, but the order of this court for the accused persons to be before this court is equally important.
“I am giving your client the last opportunity; this is not how it is going to happen in future. I am never ever going to allow this to happen again, that is not justifiable. The best thing would be to keep the accused persons in custody until the finalisation of the matter if it is going to be so difficult to secure their attendance.
“Should it happen, I will not be hesitant to issue a warrant of arrest against the accused persons who find it befitting not to comply with the orders of this court because they have other orders from their employers degrading the reputation of this court. I am going to grant the postponement, but this is the last time I postpone this trial on the same reasons. The trial will proceed on 20 to 31 May 2024,” said Justice Makhetha.
