Tefo Tefo
THE COURT Martial has again postponed the case of 23 Lesotho Defence Force (LDF) members who are facing charges of mutiny to 18 April 2017.
The case was postponed on Tuesday because of the pending appeal before the Court Martial Appeal Court in which the 23 accused challenged the legality of their prosecution.
The postponement was made after the lawyers representing the suspected mutineers pressed for the court to refrain from conducting any proceedings because of the pending judgment before the Court Martial Appeal Court.
In his address to the court, the alleged mutineers’ lawyer, Attorney Tumisang Mosotho, said the Court Martial should rectify the mistake that the court, the prosecution and the defence lawyers had been making for convening the Court Martial yet there was an appeal pending before the Court Martial Appeal Court.
“As far as I am concerned, the proceedings in the Court Martial Appeal Court have stayed proceedings in this court,” Attorney Mosotho said, adding, “Everything in relation to this court should not proceed”.
“It is a mistake that we have made throughout and it was an oversight on all of us.
“It is a common law principle that an appeal amounts to a stay of proceedings until that appeal has been disposed of,” Attorney Mosotho submitted.
Responding to the suggestion by the bench that there has never been any proceedings since the appeal was lodged in December 2015, Attorney Mosotho disagreed with the court.
The bench said all that had been done was to postpone the case pending the outcome of the Court Martial Appeal Court.
But Attorney Mosotho said: “Even those postponements were part of the proceedings because when the court postpones a case to a certain date it actually makes a judicial decision.
“That is why, sometimes postponements are opposed and argued so that the court can eventually make a ruling. In principle a postponement is part of proceedings.”
Attorney Mosotho said the Court Martial should not do anything but wait for the Court Martial Appeal Court judgment.
“It is only after the judgment that this court can reconvene,” he added.
The prosecutor, Advocate Roland Suhr, submitted a different view on whether the court had to postpone a case.
“Effectively my learned friend suggest that the case should be adjourned sine die.
“It is wrong in principle to adjourn a criminal case sine die. It should be postponed to a specific date even particularly because this court has not dealt with the merits of this case,” Advocate Suhr said.
However, the court postponed the case to 18 April 2017 with the anticipation that the Court Martial Appeal Court would have delivered judgment.
However, the court postponed the case to 18 April 2017 with the anticipation that the Court Martial Appeal Court would have delivered judgment by then.
But he said the Registrar said one of the judges who was part of the panel of three judges was also preparing another judgment so that both judgments could be delivered together.
This was also confirmed by one of the defence lawyers, Advocate Koili Ndebele.
“I confirm to a certain level what my learned friend has just said.
“But I cannot confirm whether a judgment that is being prepared by another judge is different from the main one or is supporting the main one,” he said.
The defence lawyers also pressed for the army authorities to pay their legal fees on behalf of their clients.
They said according to the law it is the responsibility of the LDF to finance soldiers for their cases before the Court Martial.
However, the court said it would make further consultations to negotiate with the Legal Aid department of government on the issue.
