Defence lawyers want editor’s shooting case thrown-out

…as matter is disrupted by power outage to move to next month

Mohloai Mpesi

July 26, 2022

The issue of the third accused in the case of former Lesotho Times Editor Lloyd Mutungamiri’s shooting ordeal, turning state witness has thrown a spanner in the works in the matter as counsel on the two sides argue on the legality and legal requisites of the move in advancing the case.

Mahanyane Phasumane took up a position in the witness box in the Maseru Magistrate’s Court yesterday in a stance that would practically throw his colleagues and former co-accused under the bus.

However, as the matter was supposed to ensue in that fashion, where Phusumane was to furnish testimony in court before Magistrate Peter Murenzi as state witness, the move was barred by the defence counsel advocate Letuka Molati who insinuated that the process was tainted with all unfairness and prosecution misconduct.

The former editor who had been way-laid by four then unknown men in front of his gate on his way home on July 9, 2016, was shot in the face and left for dead.

Mutungamiri who provided initial evidence before the court in March this year, said after sending the paper for publication at 11pm that night, he had driven home only to find four men he couldn’t identify due to the obscurity of darkness, who had approached his car as soon as he advanced the gate at his Upper Thamae home in Maseru.

As he parked the car in front of the gate he suddenly felt his head exploding, and later learned that he had been shot in the face on the right cheek with the bullet shattering through his lower jaw, breaking the teeth, puncturing through his tongue before it was lodged at the bottom of the left ear.

Later a group of five men working in the Lesotho Defence Force (LDF) was arrested and duly charged for the attempt on his life. The accused in the matter are, Rapele Mphaki, Khutlang Mochesane, Nyatso TÅ¡oeunyane and Maribe Nathane while Phusumane was released in September 2019 to turn into state witness.

Arguing this matter, Molati told the court yesterday that surreptitious arrangements were instigated at the Maseru Correctional Service by the crown to lure Phusumane to testify against his comrades which he said was not only unprocedural but also tainted the principles of fair trial as the defence counsel was never notified of the consultations.

“…the witness was accused number three. The crown, through a process unknown to the defence, took him out of jail to make him appear before the magistrate who was not presiding over this matter.

“They entered into arrangements that Phusumane will no longer be prosecuted but will turn to be a crown witness. I must indicate that all these things happened without notice to us as defence, same as his appearance before court today,” he said.

He further stated that the proceedings were held between the crown and the magistrate who was never seized with the matter, which exacerbates the matter of unfairness as they were never made aware.

“The magistrate who dealt with this case in our absence was not the learned Magistrate presiding on this matter right now (Murenzi). I should inform the court that I have made extensive consultations with the first accused as well as Mr Phusumane; I have also compared my notes with my learned colleagues who represent other accused. And with this background, the crown committed a number of irregularities that go to the heart of the fairness of trial. I can put forth that the crown bridged the legal privilege that the accused persons and myself enjoyed,” he said

Added Molati: “…if I were to narrow it down to a simplified conversation between the investigator of the crown and Phusumane, the story may have gone down like this; ‘Mr Phusumane, tell us everything that you have discussed with your legal representative advocate Molati and the first accused Rapele Mphaki, immediately after you have told us all that privileged information we shall now say you go to court and testify and will be released’.

“Unfortunately Mr Phusumane swallowed the bait because everybody considers his freedom as shrine and was released from detention at the prejudice of other accused”.

He further submitted that the whole case has been permeated by the spirit of immeasurable unfairness and incurable prejudice seeking that the case to be permanently stayed because of an unprocedural grave conduct by the crown which has thrown the fair trial principle out the window.

“We submit that we are now at the turning point where the following questions of law have to be determined prior to a decision being made whether Mr Phasumane is a qualified witness in this trial.

“Whether a consultation of Mr Mahanyane by the crown did not contravene the accused’s right to fair trial, whether his calling as a witness did not contravene section 12 on the rights of accused persons in this case,” he said, adding that consultation of accused person by the crown without knowledge and authorisation of his lawyer amounts to violation of the rights to fair hearing per Section 12 (1) of the constitution.

“Where any question as to the interpretation of this constitution arises in any proceedings in any subordinate court or tribunal and the court or tribunal is of the opinion that the question involves a substantial question of law, the court or tribunal may and shall if any party to the proceedings so requests defer the question to the High Court.

“We request that background facts be placed before the court in the form of an affidavit. Those facts should be placed straight away before the High Court so that those issues are determined before the High Court.

“That he should be disqualified as a State witness and that the matter is stayed because it has been tainted with a lot of irregularities,” he said.

Advocate Karabo Mohau KC who represents Mochesane, TÅ¡oeunyane and Nathane echoed the same sentiments that Phusumane was at all material times present as they were strategizing their defence with their clients.

“We make common cause with the submissions made and we wish to add a few important details; the court will take note that this matter came before it on November 30, 2017 for remand, between that date and September 3, 2019, the witness in the box had been a co-accused person in this matter.

“In that period, and every time they made requests for a meeting with advocate Letuka who has been leading the consultations, Mr Phusumane also attended so as to help with whatever the consultations, responsibilities and possible defence, he was also consulted on strategies of defence, as then a co-accused,” he said.

However, the Lead Prosecutor Rethabile Setlojoane, argued that the defence is only trying to drag time as they have known since 2019 that Phusumane has turned state witness.

“It seems like this matter of referring cases to the High Court is turning into a fashion,” he said as he rubbished the point of covertly conniving with one Magistrate Qobolo to turn the co-accused into state witness without consulting them, stating that no law dictates to the crown to notify the defence.  

“A suggestion that there was an arrangement between the Crown and the Magistrate who was not seized with the matter and that they were not consulted is baseless and without substance.

“The law does not require the crown to call the defence and seek their consent, it is the prerogative of the crown, and the defence has got nothing to do with withdrawal of the criminal proceedings.

“The matter was withdrawn by Magistrate Qobolo and there was no need to appear before the magistrate seized with the matter,” he said.

He continued that on September 4, 2019 when the matter was withdrawn, they immediately appeared before Magistrate Murenzi on a hearing date and “…we informed the court that the charges against accused number three will be withdrawn and that he will be accomplice as a state witness in terms of the Criminal and Procedure Evidence Act. 

“The defence was before court and they requested the court to postpone the matter because of that development and they said they were going to refer this issue to the constitutional court, we accommodated them, and the matter was then shelved to October 9, 2019 for update and there was no application for referral on that date and the matter was remanded to October 17 for set down.

“I submit that this application is merely intended to delay these proceedings, the accused have known way back in September 2019 that Mr Phusumane will testify as an accomplice.

“They cannot at this stage make an application for referral at the Constitutional Court for determination. There is no such thing as question of law that has to be referred to the Constitutional Court,” he said.

The case was propelled to be shelved to August 3 after the court experienced power outage yesterday.