Motinyane steps up fight with “biased” Sakoane

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. . . slams judge’s insistence on proceeding with treason trial without ‘chief actor’ Metsing

Mohalenyane Phakela

DIRECTOR of Public Prosecutions (DPP), Hlalefang Motinyane, has upped the ante in her quest to have the Court of Appeal overturn “biased” Chief Justice Sakoane Sakoane’s refusal to recuse himself from presiding over the treason and murder trial involving politician Mothetjoa Metsing and former army commander Tlali Kamoli.

DPP Motinyane had in January 2022 unsuccessfully petitioned Justice Sakoane to recuse himself from the case on allegations that he was biased against the prosecution.

However, in delivering his verdict in the same month, Justice Sakoane said the DPP’s fears that he was unlikely to be impartial, merely because he had castigated her and barred lead prosecutor Shaun Abrahams from prosecuting the case, were unjustified.

The DPP, who had been angered by what she described 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 approached the Court of Appeal to try and enforce the recusal.

In her heads of argument recently filed in the apex court, DPP Motinyane reiterates that Justice Sakoane cannot be trusted to bring an impartial mind to bear should he be allowed to continue presiding over the case.

She also slams the top judge for his insistence on forging ahead with the trial in the absence of the fugitive Mr Metsing when he was allegedly the chief instigator of the criminal events of 29-30 August 2014 which form the basis of the treason and murder case.

Justice Sakoane’s determination to proceed with the trial “without regard to the central role played by the fifth respondent (Metsing) in the charges” makes a compelling argument why he should not be allowed to preside over the case, DPP Motinyane argues.

She also accuses Justice Sakoane of unilaterally allocating the case to himself without consulting the executive or anyone else. This is despite the chief justice’s knowledge of a government-SADC agreement that all high-profile trials involving politicians, serving and former members of the security agencies be tried by foreign judges.

Three foreign judges, namely, Charles Hungwe (Zimbabwe), Kabelo Lebotse and Onkemetse Tshosa (both from Botswana) were engaged by the government and the Judicial Service Commission (JSC) in 2019 to try the high-profile trials.

Former Justice and Correctional Services Minister, Mokhele Moletsane, explained at the time that the government and SADC felt it necessary to engage foreign judges because the cases in question were politically sensitive and the verdicts of the foreign judges were less likely to be viewed as biased.

Justices Lebotse and Tshosa subsequently resigned in May 2020 and August 2021 respectively, citing poor working conditions, among other things. They were also unhappy about the Stalingrad delaying tactics of the suspects to stall the trials.

Their resignations left Justice Hungwe with the herculean task of presiding over some of the high-profile trials by himself. Some of the cases were then allocated to local judges.

The logic behind the appointment of foreign judges to handle the high-profile cases was lost on Justice Sakoane when he made the unilateral decision to take over the treason and murder trial in the aftermath of Justice Tshosa’s resignation, the DPP argues.

“The chief justice erred and misdirected himself in appointing himself as the trial judge in CRI/T/0001/2018 (treason and murder trial). More specifically, the learned judge failed to have regard to the underlying processes, rationale and policy considerations followed in the appointment of foreign Judges to adjudicate in the matter of the respondents (Kamoli and his co-accused) as articulated and considered by the Constitutional Court in Mokhosi & 15 Others v Justice Charles Hungwe & 5 others when he appointed himself to preside over the trial of the respondents.

“The learned judge failed to consult the executive and the Judicial Service Commission prior to what amounts to self-reviewing the decision to appoint foreign judges by appointing himself as the trial judge in CRI/T/0001/2018,” DPP Motinyane argues.

Messrs Metsing, current cabinet minister Selibe Mochoboroane and Lieutenant General (Lt-Gen) Kamoli are accused alongside Captain Litekanyo Nyakane, Lance Corporals Motloheloa Ntsane and Leutsoa Motsieloa.

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.

Mr Metsing was deputy prime minister at the time of the attempted coup while Mr Mochoboroane was communications minister and secretary general of Mr Metsing’s Lesotho Congress for Democracy (LCD) party.

Lt-Gen Kamoli had been fired by Mr Thabane from his post as army commander on 29 August 2014 before orchestrating the attempted coup allegedly with the support of Messrs Metsing, Mochoboroane, Captain Nyakane and Lance Corporals Ntsane and Motsieloa. Messrs Thabane and Metsing had fallen out with the latter alleging he was not being consulted on key decisions.

After several, ultimately unsuccessful attempts to stop the state from joining them to the trial, Messrs Metsing and Mochoboroane were eventually charged in December 2021.

But Mr Metsing was a no show as he had fled the country.

Justice Sakoane then issued a warrant for his arrest. He opted to proceed with the trial a month later in Mr Metsing’s absence, who remains at large to this day.

In her latest apex court heads of argument, DPP Motinyane questions the chief justice’s motives in proceeding with the trial in the absence of the man who she says was the chief instigator of the events on which the case is based without even the courtesy of inquiring about what the police had done to find and arrest him.

The DPP also questions Justice Sakoane’s decision to bar Mr Abrahams from prosecuting the case, saying the chief justice has no right to cherry pick prosecutors for her office.

Judge Sakoane had set the 10 January 2022 date for the trial despite that he had been informed on 13 December 2021 of Mr Abrahams unavailability, the DPP argues.  It was Mr Abrahams absence on that day that had incensed Judge Sakoane. He then barred him from the prosecutor’s desk after he later appeared.

The DPP is adamant that the Chief Justice should not have proceeded to set the 10 to 20 January 2022 dates when he had been told Adv Abrahams would be absent.

Justice Sakoane had even charged DPP Motinyane with perjury for “lying” to him that Adv Abrahams would not be available when he subsequently appeared in court.

Although Justice Sakoane eventually cleared Advocate Motinyane of perjury, the DPP was still unhappy with his conduct.

She reiterates in her heads for the Court of Appeal that Justice Sakoane will not bring an impartial mind to the trial.

She is also of the view that while the chief justice was hard on the prosecution, he had failed to censure defence lawyers who have been responsible for much of the delays in the case after they filed multiple applications to halt the beginning of the trial.

DPP Motinyane also argues that when Justice Sakoane held an inquiry over DPP Motinyane’s alleged perjury, he afforded the defence lawyers an opportunity to cross-examine her and Adv Abrahams but did not grant the same chance to her lawyers, Advocates Hopolang Nathane, ‘Naki Nku and Motene Rafoneke.

“A judge should not be unduly sensitive nor regard as a personal affront the application for his or her recusal. A fair trial ordinarily requires the matter to be adjudicated by an independent and impartial Court,” DPP Motinyane argues.

The Court of Appeal has scheduled to hear the matter on 21 April 2022.

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