- lead prosecutor Abrahams in no-show due to prior commitments,
- as Mochoboroane applies for discharge.
Mohalenyane Phakela
THE treason and murder trial of politicians, Selibe Mochoboroane, Mothetjoa Metsing and others failed to kick off this week due to the absence of lead, prosecutor Shaun Abrahams who had other commitments in his native South Africa.
Three weeks ago, the presiding judge, Chief Justice Sakoane Sakoane, had set 10 to 20 January 2021 as the trial dates, saying he wanted to speedily conclude the matter.
To ensure that the trial proceeded smoothly without any interruptions, all the Crown and defence lawyers would have to be present at all times. No excuses would be tolerated and no one would be allowed to absent themselves on the grounds that they were attending to other cases, Justice Sakoane had said.
“This case has been in court for a long time and if I had my way, we would immediately sit until 24 December 2021. I have to consider the interests of some of the accused who are in prison rather than the convenience of the counsels. This matter will be heard from 10 to 20 January 2022,” Justice Sakoane ordered.
He said this in response to Adv Abrahams, and some of the defence lawyers who had indicated that they had other court cases to attend to in January and February 2022.
Notwithstanding Justice Sakoane’s orders, Adv Abrahams was absent on Monday when the trial was supposed to kick-off.
The office of the Director of Public Prosecutions (DPP), Hlalefang Motinyane, then sought a postponement due to Adv Abrahams’ unavailability.
This did not go down well with Justice Sakoane who refused to postpone the case on account of Adv Abrahams who he accused of stalling the trial to focus on “making money in his native South Africa”.
Mr Mochoboroane is currently Development Planning minister and Movement for Economic Change (MEC) leader. He is accused alongside Mr Metsing, the leader of the opposition Lesotho Congress of Democracy (LCD).
Their co-accused are former army commander, Tlali Kamoli, Captain Litekanyo Nyakane, Lance Corporals Motloheloa Ntsane and Leutsoa Motsieloa.
Mr Metsing was not in court in Monday. He has repeatedly failed to appear since the matter was set down for hearing last month. This amid indications that he fled the country to avoid prosecution following his and Mr Mochoboroane’s unsuccessful Constitutional Court and High Court applications to stop the trial from proceeding. They had sought to avoid trial on the grounds that a 2018 SADC-brokered government/opposition agreement shielded them from prosecution at least until after the full implementation of the multi-sector reforms recommended by the regional body. Mr Metsing’s deputy, former defence minister Tšeliso Mokhosi subsequently explained they didn’t want their leader tried by the current judiciary before it was reformed as envisaged in the ongoing reforms process.
When it had been expected that the trial would start on Monday, Adv Hopolang Nathane addressed the court, saying he had instructions from DPP Motinyane to apply for a postponement.
However, an irate Justice Sakoane did not even give him the chance to argue his case. Instead, the judge gave the Crown an hour to prepare to proceed with the trial or justify why he should not dismiss the case on account of the state’s failure to prosecute the matter. Adv Nathane had appeared alongside Adv ‘Naki Nku who has been assisting Adv Abrahams with the matter.
“The trial is proceeding now,” Justice Sakoane declared.
“So, if you (Nathane) are not prosecuting the matter, why are you before me? As a senior lawyer, where have you seen this happening? You cannot move the application for postponement because when I find it unmeritorious, I will sanction you M5000. (sic).
“These people (Kamoli and other soldiers) have been in jail for five years and are on their sixth year now. I am told Mr Abrahams is busy making money in South Africa. I am not going to postpone this matter. If the Crown is not ready to proceed, I am going to dismiss it for want of prosecution. By 11am, both sides should address me on why this matter should not be dismissed if Crown is not ready to proceed,” Justice Sakoane said.
This was at about 10am. Adv Nku then pleaded with Justice Sakoane to adjourn proceedings to allow her to consult with DPP Motinyane.
In the postponement application papers, DPP Motinyane had argued that the trial should not proceed without Mr Metsing. She had argued that the matter should be postponed to enable the police to first find him in line with the warrant for his arrest which was issued by Justice Sakoane on 6 December 2021. She had also said Adv Abrahams’ absence was another reason why the trial should not proceed.
“He (Adv Abrahams) made it very clear (during his previous appearance on 13 December 2021) that due to his engagement in a case in South Africa, he would not be available for this trial on 10 January 2022.
“He also informed me that the counsel for first accused (Kamoli), Adv Letuka Molati, had also indicated that he already had prior medical arrangements that would make it impossible for him to be in attendance on the said dates.
“To crown it all, one of the principal accused persons in this trial, Mothetjoa Metsing, was and still is at large as the warrant issued by this court for his apprehension has not yet been carried into effect. (sic). The police are doing everything in their power to have the said gentlemen apprehended and brought before this court to stand trial. It is my considered opinion that it would not be in the interests of justice to apply for Metsing to be tried separately from the rest of the accused because on the basis of the evidence at the Crown’s disposal, not only will the Crown be prejudiced in the conduct of its case by such a move, but the entire Crown case will be jettisoned,” DPP Motinyane argued.
Justice Sakoane then granted an hour’s postponement to enable Adv Nku to consult with DPP Motinyane. When the court session resumed at 11am, Adv Nku told the court that she had been given the greenlight by DPP Motinyane to proceed with the prosecution of the matter. She however, said she needed time to interview the state witnesses who she said were 90.
Justice Sakoane refused to grant her request. He said she should not have been in the dark as she had been part of the proceedings since the state first pressed the charges in 2018.
Adv Letuka, who had last month said he would not be available, was in court on Monday. He and fellow defence counsels, Advocates Molati, Lepeli Molapo and Mafaesa then informed Justice Sakoane that they were ready to proceed with the trial.
The trial would have gone ahead had it not been for Mr Mochoboroane’s lawyer, Adv Motiea Teele, who then sought a postponement to enable him to challenge the charges against his client.
“I previously filed request for further particulars and I was served with a 500-page document last Friday (8 January 2022) by the Crown. I went through the document and my view is that the charges cannot be allowed to stand. So, I am working on a motion to quash the charges. I am not prepared to have my client plead in terms of what is contained in these particulars. The charges are merely meant to embarrass him,” Adv Teele submitted.
Justice Sakoane then ordered that Adv Teele’s application would be argued tomorrow.
The judge also ordered the state to bring all its witnesses to court on Monday so that he could “warn” them before the trial commenced.
Prominent figures like former First Lady ‘Maesaiah Thabane, deputy army commander Major General Matela Matobakele, Major General Ramanka Mokaloba, Deputy Commissioner of Police Sera Makharilele, former Law and Justice Minister Lebohang Hlaele and former Health Minister Nyapane Kaya are among the 90 state witnesses.
Justice Sakoane also ordered Adv Nku to come prepared to argue why Lance Corporals Ntsane and Motsieloa should not be tried separately since they are not facing treason charges.
All the 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 LCD secretary general.
Lt-Gen Kamoli had been fired by Mr Thabane from his post as army commander on 29 August 2014. A day later, he allegedly orchestrated the attempted coup with the support of Messrs Metsing, Mochoboroane and Captain Nyakane.
