POLITICIANS, Mothetjoa Metsing and Selibe Mochoboroane’s application to stop the state from joining them to the treason and murder trial alongside former army commander Tlali Kamoli and others has been postponed to Tuesday.
Chief Justice Sakoane Sakoane postponed the matter to allow state prosecutor, Shaun Abrahams, to attend to other cases before the courts this week.
Messrs Metsing and Mochoboroane argue that they cannot be summarily joined to the treason and murder trial. They argue that they cannot be tried in the High Court without first being remanded in the magistrates’ court as demanded by the Criminal Procedure and Evidence Act.
They initially filed a High Court application in December 2020 challenging the decision to join them to the trial. But Justice Sakoane declined to make a ruling and referred the matter back to the then trial Judge Onkemetse Tshosa. Justice Sakoane ruled that only Justice Tshosa had the jurisdiction to determine Messrs Metsing and Mochoboroane’s application. Unhappy with the decision, the duo then appealed to the Court of Appeal.
In the apex court, they also challenged the Constitutional Court’s November 2020 judgement outlawing clause 10 of the October 2018 SADC-brokered government-opposition agreement which sought to shield them and other politicians from prosecution until after the implementation of the multi-sector reforms.
In the Court of Appeal’s 14 May 2021 judgement read out by its president, Justice Kananelo Mosito, the apex court said it had resolved to dismiss Messrs Metsing and Mochoboroane’s appeal against the Constitutional Court verdict on the grounds that the duo had merely brought before them a case which was “based on issues that had been decided before by the courts”.
The court also upheld Justice Sakoane’s decision that only the trial had the jurisdiction to determine whether or not they could not be joined to the treason and murder trial without first being remanded in the magistrates’ court.
They subsequently filed an application before Justice Tshosa just as they had been ordered by Justice Sakoane back in February. But following his resignation from the High Court bench for “personal reasons” on 1 August 2021, their application is now being handled by Justice Sakoane.
Before postponing the application this week, Justice Sakoane heard arguments from Advocates Abrahams and Motiea Teele. Adv Teele represents Messrs Metsing and Mochoboroane.
Adv Teele had argued that section 144 of the Criminal Procedure and Evidence Act only allowed the Director of Public Prosecutions (DPP), Hlalefang Motinyane, to charge anyone in the High Court without a preparatory examination in the magistrates’ court if there were exceptional circumstances. Such exceptions could be where the DPP felt there could be intimidation of witnesses or when it was in the public interest, Adv Teele argued.
He however, said the DPP’s decision could still be challenged in court as they had done.
Justice Sakoane then asked him whether Messrs Metsing and Mochoboroane were already part of the accused persons and whether they were properly before his court.
“Your clients were served with the indictment and notice of trial,” Justice Sakoane said.
“Shouldn’t they be referred to as accused persons? If they are not accused persons, do they have locus standi (legal authority) to make this application? How do they have audience if they are not accused? Can they challenge the indictment if they are not accused?”
Adv Teele then argued that his clients were not accused persons.
“When they were served with the indictment, it had not been officially filed. A person becomes an accused when a matter is properly filed before court and no illegality can be raised in relation to the filing of the charge,” Adv Teele argued.
Adv Abrahams counter-argued that Messrs Metsing and Mochoboroane became part of accused persons the moment they were given charge sheets by the DPP.
“The applicants are accused persons and there is no way of getting around the issue. The moment the DPP served them with an indictment and notice of trial, their trial was pending and they were charged.
“The applicants have to demonstrate that the conduct of DPP was irrational. They have to show what prejudice they would suffer,” Adv Abrahams argued.
Justice Sakoane then adjourned the matter to 17 August 2021.
Messrs Metsing and Mochoboroane’s application has caused the postponement of the treason and murder trial. The trial was supposed to start on 11 June 2021 and Lieutenant General (Lt-Gen) Kamoli and his three co-accused soldiers were in court on that day.
The three co-accused soldiers are Captain Litekanyo Nyakane and Lance Corporals Motloheloa Ntsane and Leutsoa Motsieloa.
The treason charges are in connection with the 30 August 2014 attempted coup against the first government of former Prime Minister Thomas Thabane.
The murder case is in connection with the killing of Police Sub-Inspector Mokheseng Ramahloko which occurred during the same attempted coup against Mr Thabane’s government on 30 August 2014.