Moorosi Tsiane
PROMINENT Lawyer, Rethabile Setlojoane, has fired his last shot towards unshackling himself from the fraud and money laundering charges he has been slapped with for receiving a M100 000 payment from his alleged fraud mastermind client, Lehlohonolo Selate.
Advocate Setlojoane presented his case before the Court of Appeal yesterday through his lawyer, Salemane Phafane, who argued that the Constitutional Court was wrong to have dismissed Adv Setlojoane’s application challenging the police’s decision to charge him alongside Mr Selate.
Adv Setlojoane landed in hot soup with the police in October 2021 after he was paid M100 000 by Mr Selate, allegedly for legal services. The money was allegedly paid through the latter’s company, Sunny Penny, which he had allegedly used to swindle over M50 million from the government.
Adv Setlojoane was arrested and spent a night at Police Headquarters before being dragged to the Maseru Magistrate Court in the back of a police van in October 2021 to be joined to Mr Selate his other co-accused in the M50 million fraud case.
However, his charges were stayed after his other lawyer, Attorney Qhalehang Letsika, asked Senior Resident Magistrate Thamae Thamae to refer the matter to the Constitutional Court, in terms of section 128(1) of the Constitution, for it to interpret whether a lawyer could be charged for “receiving payment” from a client for services rendered.
The constitutional panel of Justices Moroke Mokhesi, Polo Banyane and ‘Maliepollo Makhetha dismissed Adv Setlojoane’s application on 12 June 2023, on grounds that they lacked jurisdiction and that the trial court would determine the lawyer’s innocence or lack thereof.
Dissatisfied with the Constitutional Court ruling, Adv Setlojoane escalated the matter to the Court of Appeal for final determination. Should he lose, he will be arraigned before the Maseru Magistrate Court and joined to Mr Selate and others involved in the humungous fraud case.
The other accused in the case are Ntseliseng Lawrence, Mookho Rafono, Tlali Mokoaleli, Thabang Nkoe, Hlabathe Phafoli, Thithili Makhesi, Maqoboto Lepolesa, Fako Molefe and Karabelo Makara.
Adv Phafane KC claimed that his client was given an ultimatum by the police during the October 2021 interrogation to either surrender Mr Selate’s file or pay back the M100 000, which was paid into his FNB account, or be joined to the other accused. Adv Setlojoane had allegedly declined the offer.
Adv Phafane presented the case before the five-member panel of Professor Kananelo Mosito, Petrus Damaseb, Moses Chinhengo, Johann Van Der Westhuizen and Philip Musonda. He said the Constitutional Court was wrong to say Adv Setlojoane would be afforded appropriate remedy in a criminal trial.
Commissioner of Police Mahlape Morai, Minister of Law and Justice Richard Ramoeletsi, Attorney General Rapelang Motsieloa are cited as first to third respondents in the appeal.
“The Court a quo (previous court) was wrong to say we have redress in a criminal trial. It is wrong because the trial court is not going to deal with the constitutionality of the police conduct which is what we are challenging here,” Adv Phafane submitted.
“The demand for the client’s file is unconstitutional and we wanted the court to make a declaration on that. The court a quo also declined jurisdiction to deal with whether it was right for police to want my client to return the money saying that will be dealt with at the criminal trial.
“The court should have exercised its discretion to declare that the police conduct was wrong. That really should be the inquiry and the decision that the appellant must go and face a criminal trial should be put aside.”
Adv Phafane said Adv Setlojoane could only be joined to the M50 million fraud trial if there was other evidence linking him to the criminality, and not based on his refusal to discover his client’s file and reimbursing the M100 000.
However, state lawyer, Mafefooane Moshoeshoe, counter-argued that the police sought evidence relating to Sunny Penny and Mr Selate from Adv Setlojoane after it was discovered that both Mr Selate and Sunny Penny were involved in fraudulent activities.
He said the Constitutional Court was right in declining jurisdiction, taking into account that Adv Setlojoane mounted a collateral challenge in the court a quo.
“The question that has to be asked is whether there were adequate sufficient remedies as required under section 22(2) of the Constitution. What was sought by the police was evidence relating to Sunny Penny after the disappearance of M50 million from the government. Sunny Penny paid the appellant (Setlojoane) the fees for pending cases on behalf of Mr Selate,” argued Adv Moshoeshoe.
Justice Musonda interjected, asking Adv Moshoeshoe whether it was going to become less criminal if Adv Setlojoane had paid the money back.
But Adv Moshoeshoe said he was still going to be charged and denied that the police had ever promised not to join him to the case.
“No, he was still going to be charged. The motive as the court a quo found was irrelevant from what he was paid for. The police only wanted to recover the government’s stolen money.
“The appellant was paid with tainted money for services he never rendered, by the company he had no relationship with,” said Adv Moshoeshoe.
After hearing arguments from both parties, the court then reserved its judgement to 3 May 2024.
