FORMER army commander Tlali Kamoli’s appeal for the recusal of Justice Charles Hungwe from adjudicating his attempted murder trial is “nothing but a ploy to waste time”. It is also an “abuse of court processes”, the state has argued.
The state’s lawyer, Motene Rafoneke, told a panel of appeal court judges this week that Kamoli had abused court processes for a long while now and needed to be stopped once and for all.
Lt-Gen Kamoli had appealed against Judge Hungwe’s decision to decline to recuse himself in the case involving the 27 January 2014 simultaneous bombings of former First Lady ‘Maesaiah Thabane’s Moshoeshoe II home and the Ha-Abia residence of the then police commissioner, Khothatso Tšooana.
His appeal was heard yesterday by a panel of the three judges; Petrus Damaseb, Van de Westeheizen and Philip Musonda.
Lt-Gen Kamoli’s lawyer Advocate Letuka Molati said Justice Hungwe was presiding over several cases involving Kamoli. The cases involved similar witnesses and that could potentially prejudice his client. This because by the time Judge Hungwe listens to the same witnesses in other matters, he would have already formed certain perceptions about the witnesses that could prejudice Kamoli.
“My lords, the prejudice is inevitable in this case because it is a fact that there are going to be many witnesses to testify in this case and same witnesses will also be testifying in other cases involving the appellant before the same judge. Our argument is that by the time the judge hears the same witnesses for the second time he will be re-hearing them. He will not be able to free his mind from the impressions he would have formed on those witnesses’ credibility,” Adv Molati submitted.
“We are therefore my lord saying this is a proper case for recusal as the appellant will suffer prejudice.”
However, Adv Rafoneke said Kamoli and his lawyers had failed to make a credible case for recusal.
No witnesses had been called in the trial at issue as yet. He did not see how any prejudice would thus arise.
Adv Rafoneke said the appeal was part of Kamoli’s sustained attempt of wanting to avoid trial through frivolous court actions.
“They have not given any evidence to support their case that the judge in the next case will be hooked in what the witness said in previous cases. They don’t even come up with a single name of a witness they believe will be testifying in those cases they are mentioning,” Adv Rafoneke said.
“Judge Hungwe is only presiding over two cases which involves the appellant… He (Kamoli) should have presented evidence to support his assertions. We see this as nothing but a ploy to abuse court processes.”
Judgement will be delivered on 12 may 2023.
Kamoli’s co-accused are Pitso Ramoepane, Litekanyo Nyakane, Mohlalefi Seitlheko and Heqoa Malefane.
Kamoli had sought the judge’s recusal on the grounds that he was unlikely to give him a fair hearing.
He based his application on Justice Hungwe’s insistence on proceeding with the trial in the absence of his lawyer, Letuka Molati, who had failed to show up in court on 16 March 2022 when the trial was supposed to begin.
His application was later on dismissed by Justice Hungwe. Handing down the verdict, Justice Hungwe said judges were duty-bound to act with integrity and impartiality. They relied solely on facts and not on inaccurate or incomplete information.
He said it was wrong for Kamoli to assume he would be biased simply because he had wanted to proceed with the trial in the absence of the ex-soldier’s lawyer.