MASERU — When Thabiso Mothobi escaped the gallows last Friday he thought his troubles were finally over.
The Court of Appeal upheld his appeal and set aside the death sentence that had been imposed by the High Court three years ago.
Mothobi and two others had in 2006 been convicted for the brutal murder of Precious Garments regional manager Peter Mokheseng.
But in a dramatic twist to the case Mothobi is still firmly behind bars almost a week later.
He is facing another court case which has been pending in the magistrates’ court.
This time he is being charged together with Phakiso Molise, a former police second lieutenant.
Mothobi is being charged with facilitating Molise’s escape from prison while Molise is being charged with escaping from prison six years ago.
Molise is already serving a 15-year-jail-term after he was convicted on a charge of murder and kidnapping.
Molise escaped from prison in August 2003.
He was however arrested in neighbouring South Africa and deported to Lesotho.
Mothobi was arrested in Maseru.
When the trial started in the magistrates’ court in 2005, then resident magistrate Lesala Nthabi referred the case to the High Court.
He asked the High Court to decide whether the magistrate had the judicial independence to preside over the case.
Nthabi argued that the director of prisons was an interested party in the case as he was the complainant.
He argued that the prisons department and the magistrate’s court fell under the same Ministry of Justice.
Instead of dealing with Nthabi’s referral order Chief Justice Mahapela Lehohla directed that the case should proceed.
Nthabi then refused to proceed with the case.
Instead he placed the record of proceedings at Chief Magistrate Molefi Makara’s office indicating that he would not proceed with the case.
Makara then proceeded with the case.
But Molise and Mothobi told Makara that he had no jurisdiction to preside over the case.
They said Nthabi had referred a constitutional issue to be decided by the High Court.
They argued that Lehohla should have dealt with the referral order judicially not administratively as he did by making a directive.
They said the magistrates’ court did not have jurisdiction to hear their case because there was a constitutional referral pending in the High Court.
But Makara rejected their application.
They had also asked Makara to recuse himself but he refused.
They appealed against Makara’s decision.
On Tuesday their lawyer Advocate Zwelakhe Mda urged the High Court to set aside Makara’s decision that he was a competent judicial officer to deal with his clients’ case.
“No magistrate can proceed with this case until the High Court has decided on the referral made by the learned resident magistrate Nthabi,” Mda said.
However, the director of public prosecutions, Leaba Thetsane, said the High Court should dismiss Molise and Mothobi’s appeal.
“This appeal — if there is any at all — should be dismissed because the referral supposedly made by the learned resident magistrate Nthabi is not related to the criminal charges faced by the accused.
“If he (Nthabi) was not satisfied with what the chief justice had done he should have gone to the higher tribunal.
“He was only afraid to take this case. O ne a e tsába,” Thetsane reiterated in Sesotho, meaning that he (Nthabi) was afraid.
High Court Judge Semapo Peete will deliver judgment on the matter on November 26.
If Peete rules that the magistrates’ court has no jurisdiction to preside over the case until the referral order has been judicially finalised, it would mean that Molise and Mothobi will remain without facing trial over the charges.
Nthabi has already retired as a magistrate. He is now running his own private law firm.
Mothobi escaped the gallows last Friday. He had been sentenced to death over the brutal murder of Mokheseng, his former boss at Precious Garments factory in Maseru.
Molise is still serving 15 years in custody after he was found guilty of murder, attempted murder and kidnapping following police riots in 1995.
Molise escaped from prison in August 2003 when he was taken for medical treatment at Queen Elizabeth II hospital in Maseru.
