Mohalenyane Phakela
THE trial of former army commander, Tlali Kamoli, and his co-accused in their treason and murder trial is in limbo as Chief Justice Sakoane Sakoane will have to wait for the Court of Appeal to decide if he should proceed as the presiding judge.
Justice Sakoane on Monday said he was constrained to proceed hearing the treason and murder trial of the soldiers and politicians until the Court of Appeal had pronounced itself over whether he was wrong to refuse to recuse himself from the trial. This was after the Director of Public Prosecutions (DPP), Hlalefang Motinyane, petitioned the Court of Appeal on 2 March 2022 to review and set aside Justice Sakoane’s 26 January 2022 decision to refuse to recuse himself from hearing the trial.
She had a fortnight ago sought Justice Sakoane’s leave to appeal his decline of recusal. DPP Motinyane also wants the apex court to nullify Justice Sakoane’s 17 January 2022 decision to bar prominent South African lawyer, Advocate Shaun Abrahams, from continuing to prosecute the trial.
Justice Sakoane sanctioned Adv Abrahams after the latter failed to appear before him on 10 January 2022 the date the Chief Justice had set for the trial to proceed. Adv Abrahams had indicated to Justice Sakoane that he would be committed in South Africa but the Chief Justice had said lawyers who would not be present should pass the briefs to other lawyers who were ready to proceed.
Adv Abrahams showed up in court on 17 January 2022, ready to resume his role, only for Justice Sakoane to bar him. He said it was “untenable” for Advocate Abrahams, who had been absent from court to suddenly return and take over as lead prosecutor from Adv ‘Naki Nku, who had replaced him in his absence.
In her leave to appeal application, the fire spitting DPP accused Justice Sakoane of usurping the case without consulting the Judicial Service Commission (JSC). This was despite that he knew fully well that the government and JSC had resolved that this and other high-profile trials should be allocated to foreign judges.
Her leave to appeal application was successfully opposed by five accused, namely, politician Selibe Mochoboroane, Lt-Gen Kamoli, Captain Litekanyo Nyakane, Lance Corporals Motloheloa Ntsane and Leutsoa Motsieloa.
The sixth accused, politician Mothetjoa Metsing, fled the country last December and remains a fugitive from justice. Therefore, he was not party to the opposition of DPP Motinyane’s application.
The treason and murder charges are in connection with the 30 August 2014 attempted coup against the first government of former Prime Minister Thomas Thabane.
In January, DPP Motinyane unsuccessfully petitioned Justice Sakoane to recuse himself from the case on the grounds that he could be biased against the prosecution.
However, in delivering his verdict on 26 January 2022, Justice Sakoane said the DPP’s fears that he was unlikely to be impartial, merely because he had castigated her and barred lead prosecutor Abrahams from prosecuting the case, were unjustified.
The DPP, who was angered by what she saw as temperamental and injudicious language by the chief justice against her, including Judge Sakoane’s insinuation that she should go back to law school, did not take the judgement lying down.
She has appealed in the Court of Appeal the Chief Justice’s refusal to recuse himself and the barring of Adv Abrahams from prosecuting the trial.
On Monday Justice Sakoane ruled that he could not grant DPP Motinyane leave to appeal because his 17 and 26 January 2022 decisions were not interlocutory orders but final ones and therefore the DPP was at liberty to approach the Court of Appeal without his approval.
“The two rulings of which leave to appeal is sought; namely the sanctioning of Mr Abrahams and refusal to recuse myself are not interlocutory but final orders and therefore the appeal in relation to the two rulings do not require leave of this court. The application (for leave to appeal) is dismissed,” Justice Sakoane ruled.
Justice Sakoane also stated that he would hand down his reason for refusing to grant leave later as he only gave an extempore ruling (given without preparation).
The Chief Justice also urged both the crown and the defence lawyers to work harmoniously to ensure that the appeal petition was heard speedily. A speedy hearing would give prompt direction regarding how the case should proceed. This after the two parties agreed to approach the Court of Appeal President, Kananelo Mosito, to seek a closer date for the hearing of the matter. The Court of Appeal has already scheduled to hold its session from 11 April to 13 May 2022.
“The parties are entitled to approach the Court of Appeal President for the appeals to be heard expeditiously. I urge the crown to work together with the defence in approaching the apex court.
“Regarding the fate of this matter, I am not in the clear because it all depends on when the Court of Appeal will hear the appeal and their judgement. The law is that if a party appeals against recusal application, the court should not do anything until that appeal is at rest. To continue would run the risk of irregularity should that appeal succeed.
“I am constrained to proceed with this matter until the Court of Appeal has done away with the appeals. This matter is postponed for mention to 15 March 2022 when the parties are expected to report back on the feedback from the Court of Appeal,” Justice Sakoane said.
Should the Court of Appeal agree with DPP Motinyane and recuse Justice Sakoane, this means the trial will start afresh before a different judge. If her appeals fail, Justice Sakoane will proceed with the trial.
DPP Motinyane was in her leave to appeal proceedings represented by Advocate Motene Rafoneke.
Adv Motiea Teele represents the five accused. He had argued that their trial cannot be deferred because of DPP Motinyane’s “obsession” to retain Adv Abrahams as the lead prosecutor. Adv Teele on Monday also stated that the defence would wait for the appeal to be disposed off and that they would approach Dr Mosito to seek a speedy hearing, even before the official April sitting of the Court of Appeal as they wanted the trial to proceed. Its continued delay was prejudicial to the accused who have been in prison since 2017 when they were arrested, except Mr Mochoboroane who has not been officially charged.
