…Judge and defence vent frustration as missing files and witness statements stall progress
Moorosi Tsiane
THE long-running corruption case involving former Minister of Education and Training, Mahali Phamotse, continues to stall before the High Court, with presiding Judge Molefi Makara and defence lawyer Advocate Salemane Phafane KC openly venting frustration at the lack of progress.
Dr Phamotse – leader of United Africans Transformation (UAT) – is charged alongside former Principal Secretary, Mapaseka Kolotsane, and former Deputy Principal Secretary, Ratsiu Majara, over allegations of corruption in the awarding of a 2015 high school textbooks tender, allegedly influenced in favour of Epic Printers and Molumeli (Pty) Ltd.
The case has limped on since February 2020, when it first came before Judge Makara. At that stage, then Crown prosecutor Advocate Shaun Abrahams, together with defence counsels Phafane KC and Motiea Teele KC, agreed that all witness statements would be disclosed to the defence.
Yet, more than five years later, Adv Phafane told the court this week that 18 witness statements are still missing — a revelation that left Judge Makara visibly perplexed.
Irritated by the inertia, Judge Makara stressed the importance of order in high-profile trials:
“Perhaps we should revisit the genesis of this matter before this court, so that we all share consensus of minds regarding where we are from, where we are, and what should be designed as the future of procreation in this matter,” he said.
“Without exaggerating, it appears there are paradoxes in this matter. Developments raise many questions without answers. This is a case in which the accused are facing charges of having embezzled and manipulated government monies amounting to worrisome figures. It is a high-profile matter which should be accorded that standing, and courts must be seen to be administering justice delicately and consistently.”
The Judge reminded both sides that when a matter is assigned, it must be diligently managed to conclusion.
At the start in 2020, Adv Abrahams prosecuted, with Adv Kabelo Letuka representing Kolotsane. At that time, the accused had already been served with trial notices and police statements. The case was postponed to March 2021, but the delays soon spiralled.
On 2 March 2021, Adv Phafane appeared, indicating that Advocate ‘Naki Nku might be taking over from Adv Abrahams. The defence requested legible documents and statements, leading to another postponement to 31 March 2021. Later, Adv Teele highlighted that 18 Crown witness statements remained outstanding.
“The accused persons have a constitutional right to be provided with all the documents. It is the right of the accused to be familiarised with the case so they can architect their own defensive way forward. Yet this Crown, which instituted proceedings, does not appear to have been ready to provide the necessary documents or to prosecute the matter,” Justice Makara said.
By the March 2021 pre-trial conference, all records should have been filed, but the Crown still failed to deliver.
At one point, Adv Phafane even applied for the charges to be permanently stayed due to lack of prosecution — an application Justice Makara dismissed, though he admitted this week that the defence’s frustrations were justified.
Adding to the chaos, the court file mysteriously went missing.
“Suddenly, the file went missing,” Judge Makara recalled.
“When I tried to find out what was happening, I thought it was in good faith, perhaps to facilitate the DCEO in providing documents. But I later had to order that the file be fetched from wherever it was and be secured.”
Adv Phafane confirmed the judge’s account, further lamenting on the continued delays.
“My Lord, I have reason to believe that the Court now regrets not granting our earlier application. For over five years this matter has been languishing in court records. What makes it worse is that even as we speak, a request for further particulars served on the Crown in March 2021 has still not been responded to. How then was the defence expected to prepare for this case remains a mystery.”
This week, the prosecution was reassigned to Adv Pelea Joala, who made his first appearance. He admitted he was only briefed on the matter at the last minute.
“Honestly speaking, my Lord, I only got the message yesterday that we are supposed to appear today, and I was formally appointed to represent the Crown from today onwards. I will speedily do that. By the time we convene again, I will be fully conversant with the matter.”
Adv Joala pleaded for a two-month postponement to study the voluminous record. Judge Makara reluctantly agreed, postponing the case to a date yet to be announced.
For now, the Dr Phamotse trial remains mired in limbo — five years on, with no end in sight.
