HIGH Court judge Justice Polo Banyane has expressed scepticism over the prosecution’s readiness to pursue to finality the trial in which five soldiers have been indicted for the 2012 murder of three civilians in Mafeteng.
Jan. 29, 2024
10 min read
Judge faults prosecution's readiness
High Court judge, Justice Polo Banyane
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This is as she granted M5, 000 in bail to four of the accused, saying their continued incarceration would not be fair because “there is no commitment on the part of the prosecution to prosecute their case to finality.”
Lance Corporals - Khauhelo Makoae, Sebilo Sebilo, and Privates - Tšepi Tlakeli and Thebe Ntšepe were also ordered to provide a M25, 000 surety, and surrender their travel documents to the Registrar of the High Court.
They are also to report to the police headquarters every Friday of the week between 8:00 a.m. and 16:30 p.m.
Their co-accused, Captain Litekanyo Nyakane, was not granted bail as he did not apply for it.
The trial had been delayed for two years due to the unavailability of witnesses, according to Justice Banyane, who promised not to do so in the future.
She noted that given how the prosecution consistently appears before court with stories and excuses, it does not appear that the trial will start anytime soon.
Unavailability of witnesses
The trial was scheduled for January 10, but Justice Banyane postponed it last month until January 19 because the Crown witnesses were unavailable.
She said at the time that that was her final postponement due to state witnesses’ unavailability.
When the trial resumed on January 10, the army’s Major General Ramanka Mokaloba took the stand as the 7th witness but had to be excused a few days later as he was supposed to attend a military conference in Botswana. Mokaloba’s evidence was also objected to by defence lawyers, who said that at the time of the alleged crime, the accused were reporting directly to him (Mokaloba), and therefore, by testifying against them, it would be unfair since their reporting to Mokaloba was not voluntary.
The defence argued that it would contravene the law of natural justice if Mokaloba were to testify.
Mokaloba had been summoned along with the commander of the Lesotho Defence Force (LDF), Lieutenant General Mojalefa Letsoela, and two other soldiers who are allegedly on a peacekeeping mission in Mozambique, along with a certain police officer.
Two other witnesses who had been summoned before them—the area chief of Ha Leponesa, where the offence was allegedly committed—Masupha Letsie and one Ralinne Mokete—had also not honoured their subpoenas.
Further, Lt. Gen. Letsoela is allegedly not among the list of witnesses that was shared with the defence lawyers at the beginning of the trial in line with the requirements of the Criminal Procedure and Evidence Act (CP&E).
On top of that, when the trial was supposed to proceed on Monday, January 15, the court was told that the lead prosecutor, Advocate Mosoeunyane Masiphole, had been booked off sick for the day and the following day, January 16, and his sick note was presented to the court.
Judge Banyane then directed that she be furnished with Masiphole’s medical records and ordered the prosecution to produce returns of services for the witnesses called.
Prosecution’s No Show-Up in Court
When the trial was supposed to resume on Wednesday, January 17, Masiphole still failed to show up in court, and his colleague from the Director of Public Prosecution's office, Advocate Tsebiso Fuma, told the court that Masiphole was still unwell and had been taken for medical examination, forcing the judge to postpone the matter to Friday, January 19.
Before postponing the case, Justice Banyane directed that Masiphole bring his medical record when he finally returns to court and produce the returns of service so that “I can determine if the crown is ready to proceed with this matter.”
Friday came, and neither Masiphole nor Fuma were in court, resulting in Judge Banyane ordering their arrest.
“I do not have any other option but to order that Mr. Masiphole and Mr. Fuma be arrested. The sick note I received on Monday expired on Tuesday, and I do not remember receiving any other excuse for his absence."
The two lawyers' arrest was meant to bring them to court to explain the prosecution’s readiness to proceed with the case and provide proof that witnesses had been served with subpoenas.
Return of Services
Justice Banyane said she ordered the production of the return of services to establish if the Crown had indeed secured witnesses and was ready to proceed with the matter to finality "regarding the manner in which the prosecutor has been handling the case from the very beginning.”
The requirement for the production of a return of service, she said, does not come from her as the judge but is provided for in the rules governing the securing of witnesses, adding that it is written in mandatory terms, meaning the prosecution is bound by the rules.
Justice Banyane made it clear that she was not convinced by the reasons given, both for the prosecutor’s failure to show up in court on the day and the unavailability of witnesses.
The prosecution even had to call witnesses to testify about subpoenas, calling seven of the witnesses who have yet to testify in an attempt to convince the court that they have been called. One of them, Detective Police Constable Tsanyane, told the court he went to Ha Leponesa on December 30, 2023, to serve summons at the instruction of his superior officer, Detective Sergeant Hlaele.
He was to serve Chief Masupha Letsie and Ralinne Mokete.
Tsanyane said he served the chief at his home and left Mokete’s subpoena at the chief’s residence before changing his statement during cross-examination, telling the court that he first went to Mokete’s place and, when he could not find him, resolved to leave the subpoena with the chief to deliver it to Mokete.
Justice Banyane then quizzed Tsanyane about his trip to Ha Leponesa to serve the subpoenas.
“Was it your first time serving a subpoena? Did you read the back page of the service, and what does it instruct you to do? Does it require you to leave the subpoena elsewhere? Now why did you lie on the return and sign that you delivered it at the address of the person whom it was intended for?”
Judge Banyane added: “Do you understand that by appending your signature to the return of service, it would result in me ordering that a witness be arrested for ignoring a court process while such a witness is not even aware that they had been called to testify because you decided to leave the subpoena at the chief’s place in this case?”
Detective Sgt. Nteki 'Nei, attached to the Criminal Investigations Division (CID), also said he was instructed by Assistant Commissioner of Police (ACP) Tšepe to deliver subpoenas at Ratjomose Barracks, wherein among those required to testify were Lt Gen. Letsoela, Major Gen Mokaloba, and two other soldiers.
’Nei said that although it was raining cats and dogs on that day, he nonetheless proceeded to Makoanyane but was unable to meet the commander personally as his office was far and insisting to go to his office “would destroy court documents.”
Nei told the court that he left the subpoenas at the military police office and asked that they be delivered to the concerned persons immediately. He said he had also communicated telephonically with his superior officer to update him on the developments, adding that his superior officer advised that the summons be left with Colonel Rankhone.
“Before I could even meet Colonel, he called me and said he had received the subpoenas but that only the Commander and Major General Mokaloba would be available, as the other two soldiers are in Mozambique and cannot be available within the two days required for them to testify.”
In the end, Nei said he was told that Advocate Sello from the army’s legal division would avail himself of the return of service, but he also failed to show up.
In response to this, Justice Banyane remarked: “He is a whole lawyer but does not understand the importance of a return of service."
She added: “I hope police officers understand the importance of a return of service and act accordingly.”
Judge Banyane’s remarks
Justice Banyane sought to establish if the defence made any efforts to establish why Chief Masupha did not show up in court as subpoenaed, as well as the witness whom he was to deliver a subpoena to.
She also asked if there was an indication as to when the two army officers in Mozambique would be brought back as required by the court, to which the prosecution showed that the army never gave the impression that it would be a problem.
“So as it stands, the only witness we know about is the commander? We have a police officer and a chief who ignore the court process; where does it put your case, Mr. Masiphole?” Justice Banyane asked.
Justice Banyane also asked Masiphole about his failure to show up in court, and when the prosecutor replied that he had been unwell all the days he was away and that he drove to two different doctors for medical attention, she said, “So you were able to drive yourself to all these places but could not drive to this court?”
LDF Major General Ramanka Mokaloba
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Army Commander, Lt. Gen, Mojalefa Letsoela
“I am inclined to release the accused on bail but will need to interrogate their medical conditions as I have been called to by the defence so that when I make the decision, I have the full picture,” the judge said.
In granting bail, Justice Banyane said she had observed everything that has occurred in the court and trial as it has been conducted by the prosecution. She also said she had time to look at an affidavit by Senior Inspector Janki, asking the court to deny the accused bail.
The argument, according to the affidavit, was that the accused would most definitely not abide by their bail conditions as they have ignored summons to appear in court before they could be charged, prompting police to seek LDF assistance.
Justice Banyane said the summons being referred to were not signed, and it is difficult to believe that they were indeed served on the accused.
With regards to state witnesses, Justice Banyane said there are a lot of unanswered questions as a result of the prosecution’s conduct in the trial, such as why a chief would not abide by a court process.
“The only thing I observe from the Crown and police is a lack of commitment and sluggishness.”
She added: “It is also questionable if the process that was to be served to the LDF was indeed served because it cannot be traced, and the prosecutor was not able to give a clear answer as to when the soldiers in Mozambique will be available to give evidence.”
In the circumstances, Justice Banyane said it was not fair to keep the accused in detention until witnesses are ready to testify and thereby grant bail.
“There is no commitment on the part of the prosecution to prosecute this case to finality; I am releasing the accused on bail.”
As part of their conditions, the accused persons are prohibited from going to Ha Leponesa in the course of their trial.
The trial has been postponed to August 5.