Mohalenyane Phakela
PROMINENT lawyer, Rethabile Setlojoane, is in hot soup with the police for receiving a M100 000 payment from a client who stands accused of fraud and money laundering.
What makes Advocate Setlojoane’s case bizarre is that he was paid by his client, Lehlohonolo Selate, for rendering legal services as any lawyer would do when hired. Mr Selate is one of the seven Ministry of Finance employees who have been charged with fraud and money laundering in connection with the M49 million which is said to have disappeared from government coffers in recent months. Their trial is before Maseru Magistrate Thamae Thamae.
As a result of the payment, Adv Setlojoane was arrested on Tuesday and detained overnight by police who wanted him charged with money laundering alongside his client.
The aim had been to join Adv Setlojoane to the list of the accused yesterday but his legal team comprising of Advocates Salemane Phafane, Napo Mafaesa and Attorney Qhalehang Letsika successfully applied for a stay of proceedings. This would enable them to approach the Constitutional Court for a discharge of their client. Mr Letsika argued that their client could not be charged with a crime for simply receiving payment from a client who had engaged him for professional services.
“Mr Setlojoane represents one of the accused in this matter and he was entitled to be paid for his services by that client just like I am expecting him to pay me,” Mr Letsika said.
“Can a lawyer who receives payment from a client be accused of fraud and money laundering? We ask this in view of section 12(2)(d) of the constitution which speaks into (sic) a fair trial and a right of the accused to legal representation.
“Can a lawyer who has a lawyer-client relationship with an accused person whom he represents in pending proceedings be held criminally liable for receiving payment from the client? These are constitutional issues and once they arise, we submit that this court’s jurisdiction is completely ousted.
“Section 128 of the constitution states that if there is any question on the interpretation of the constitution in any of the proceedings in the subordinate courts and the court is of the opinion that it involves substantial questions of law, the court shall refer the matter to the High Court (sitting as the Constitutional Court) which has the appropriate jurisdiction to deal with this matter.
“We pray that he (Setlojoane) should not be remanded and these proceedings be stayed until the constitutional case is finalised. We pray that he be released and he will avail himself once the constitutional case is finalised,” Mr Letsika said. He also asked Magistrate Thamae to order the police to release Adv Setlojoane’s mobile phone which he said had been confiscated without a court order.
The prosecutor, Tsietsi Hlaele, then demanded that the state be served with a formal application for a stay of proceedings before they could respond.
“In the meantime, may the suspect be returned to police custody until such a formal application is made,” Adv Hlaele submitted.
Adv Phafane then argued that there was no law permitting the police to retain suspects in their custody. Either their client was remanded in custody at one of the Lesotho Correctional Service (LCS) facilities or the proceedings be stayed pending the outcome of the constitutional court proceedings. The police could not keep a person in their custody indefinitely, he said.
Magistrate Thamae then adjourned the proceedings for a lunch break. He subsequently granted Adv Setlojoane leave to approach the Constitutional Court.
“An accused’s right to legal representation is a right in terms of section 12 of the constitution. The points raised that this matter be referred to the High Court are to the effect that remanding the suspect (Setlojoane) under the circumstances of the case is a direct infringement of the right to a fair trial as envisaged by the constitution.
“This court therefore holds that a substantial question of law has arisen in these proceedings which goes to the interpretation of the constitution. This matter is referred to the High Court (sitting as the Constitutional Court) for its interpretation as per section 128 of the constitution. The proceedings are stayed pending the referral decision,” Magistrate Thamae ordered.
He also ordered the police to release Adv Setlojoane’s from police custody as well as his mobile phone.
Adv Setlojoane’s client, Mr Selate, has been charged with fraud and money laundering alongside Ntseliseng Lawrence, Mookho Rafono, Tlali Mokoaleli, Thithili Makhesi, Thabang Nkoe and Hlabathe Phafoli.
According to the charge sheet, the seven defrauded the government of M49 497 972, 72 “by purporting to pay for services rendered to the government whereas it was for their own personal gain”.
“Upon or about the period between October 2020 and September 2021 in the Maseru district, the said accused persons did unlawfully and with the intent to defraud, misrepresent to the Central Bank of Lesotho and the Ministry of Finance.
“The Ministry of Finance had authorised the transfer of M49 497 972,72 from the expenditure account to different companies’ accounts held by Nivana Holdings Pty Ltd, Traggulogy Pty Ltd, Stone Curlew Holdings Pty Ltd, Sunny Penny Pty Ltd, Victorious General Dealer, Moletsima General Dealer, Hazel Nuts General Dealer and Plexus Suppliers Pty Ltd.
“The accused were not the proper and lawful beneficiaries to the said funds and they knew at all material times that they had made representations which were false. By means of the said misrepresentation, the accused persons prejudiced the parties (government and rightful beneficiaries) to the amount of M49 497 972, 72.
“Therefore, the accused persons are guilty of the crimes of fraud and money laundering,” the charge sheet states.
