â€¦ploy to botch Lipoleloâ€™s murder case
By Mohloai Mpesi, Mohalenyane Phakela, Thoboloko NtÅ¡onyane and Itumeleng Khoete
Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, is accused of bungling murder case against the Lesotho former Prime Minister, Thomas Thabane, in order to protect him and his wife at all costs.
Police are worried that Motinyaneâ€™s involvement may ensure that this case is thrown out of court, MNN Centre for Investigative Journalism has learned. Motinyane avoided all our attempts to have her comment on her involvement in this case.
The former statesman faces charges of ordering the murder of his estranged wife, Lipolelo Thabane, who would have assumed the role of First Lady, on the eve of his second inauguration. Thabaneâ€™s current wife, â€˜Maesaiah, who had then assumed the role, has been charged with the same crime.
While the pair deny involvement, the events leading up to their arrest, the bail proceedings as well as the long delays in charging them as requested by police investigating the case has raised questions about Motinyaneâ€™s qualification for her DPP role and her political motives to protect the Thabanes.
The case against the Thabanes was supposed to be heard before Justice Molefi Makara from 8 to 10 last month as part of a High Court plan to expedite criminal cases between February and April this year. Three acting judges were brought in to help with this special criminal roll including retired Justice Semapo Peete, Magistrate Palesa Rantara and senior lawyer, TÅ¡abo Matooane KC.
Takes control of the case
While Motinyane usually briefs private lawyers, including those from South Africa, to prosecute high profile criminal matters, in the Thabane case she opted to appear on behalf of the state prosecution herself.
On the day that the case was due to begin, Motinyane said she was not ready to proceed. Although she had been aware of the March court date since November 2021, she had not yet furnished the defence lawyers with witness statements.
Justice Makara was left with no choice but to postpone the case to 28th this month.
Prominent lawyers, Salemane Phafane KC and Attorney Qhalehang Letsika appeared for the Thabanes.
In January 2020, questions about Motinyaneâ€™s motives started surfacing when â€˜Maesaiah was summoned to the Police Headquarters to assist in the investigations into the murder of Lipolelo and attempted murder of Thato Sibolla.
â€˜Maesaiah fled to South Africa. When she returned to Lesotho on 4 February 2020, she was held in police custody overnight while waiting for Motinyaneâ€™s directive to charge her.
Deputy Commissioner of Police, Paseka Mokete, who was then the head of Criminal Investigations Division told MNN that initially Motinyane stood firm in her objection towards charging â€˜Maesaiah.
â€œWe struggled to get that directive from the DPP to take ‘Maesaiah to court,â€ said Mokete who eventually forced Motinyaneâ€™s hand when he held a press conference on February 4, 2020 to announce that the only thing missing for them to charge Maesaiah with the heinous crime was Motinyaneâ€™s directive.
Maesaiah was eventually brought before the Maseru Magistrate Court the following day February 5 where she was charged and remanded in prison to await trial. The bail application which then followed raised further questions about Motinyane and the special treatment for the Thabanes.
Maesaiahâ€™s lawyer at the time, Adv Rethabile Setlojoane, applied for bail at the High Court.
Failure to oppose bail
Although Mokete was adamant that the police wanted Maesaiahâ€™s bail application opposed because she had previously fled the country and deemed to be a threat to witnesses, Motinyane did not agree and the DPP did not oppose bail.
Bail was granted at around 5pm on February 5, 2020 when the High Court’s accounts office had already closed.
However, Assistant Registrar of the High Court, Advocate Tebello Mokhoema, processed ‘Maesaiah’s release even though the bail deposit was done the following day on February 6, 2020 as per the High Court’s accounts receipt.
Mokete accused Mokhoema of lying that ‘Maesaiah’s bail deposit was paid up when Mokhoema processed her release on the same day she was charged.
â€œWe interviewed the accountant at the High Court who said she only received the bail deposit the following day when ‘Maesaiah had already been released.
â€œWe had also interviewed the Magistrate who handled her release and also the Lesotho Correctional Service people as to on what basis they released her,â€ said Mokete who added that there had also been no directive to charge the assistant registrar for this and no word from Motinyane about it.
â€œShe does not say whether we have a case or not,â€ Mokete said.
Another failure to oppose bail
In a bid to get Maesaiahâ€™s bail reviewed by the Court of Appeal, the police teamed-up with Sibolla as well as Thabane’s grandson, Thomas Thabane Junior.
The bid was successful and the court duly set aside the bail in May 2020.
The court ordered the bail hearing to be held afresh by a different High Court judge.
‘Maesaiah was sent to prison while her lawyer, Phafane, reapplied for her bail.
In July 2020, the High Court once again granted Maesaiah bail on the grounds that the DPP had not opposed it. Mokete filed an affidavit opposing bail but Justice Thamsanqa Nomngcongo found that he had no authority to oppose bail.
Mokete stressed that that they “â€¦ had stressed our intention to oppose, but DPP refused to oppose the bail and a highly questionable bail was processed and she was released the same day.â€
First opposingâ€¦in favour of â€˜Maesaiah
Mokete said the police subsequently lodged another appeal to review Maesaiahâ€™s bail, but â€œshockingly the DPP opted to oppose the bail review applicationâ€.
Mokete states that â€œit was something that even shocked the Court of Appealâ€.
In setting aside â€˜Maesaiahâ€™s bail in May 2020, the Court of Appeal said, â€œit is strange to see the police and the DPP on opposite sites. It was peculiar for DPP to side with an accused person whom she is supposed to prosecuteâ€.
When it came to charging the former premier Thabane, Mokete also confirmed that police had planned to charge him in February shortly after his wife. But, when they called him to Police Headquarters, he said he was attending a medical checkup in Bloemfontein, South Africa.
â€œWhile we still expected him to report to police, we learned that he had gone to court with his lawyer to argue that a sitting prime minister could not be charged,â€ Mokete said, questioning the basis on which the Magistrate Court referred this matter to the Constitutional Court.
â€œThat Magistrate’s ruling barred us from taking him to court,â€ said Mokete, adding that the application to the Constitutional Court was never filed.
But Thabaneâ€™s lawyer, Advocate Qhalehang Letsika, told MNN that they had intentions to take a question on whether a sitting Prime Minister can be charged to the Constitutional Court but that did no longer hold as Thabane stepped down as a premier.
It was from this moment in May 2020, that police expected the DPP to issue a directive to arrest and charge Thabane in court but that never happened. â€œIt should be clear that the police only investigate the case and then hand it over to the DPP to prosecute,â€ Mokete said.
Eventually, in November 2021, Thabane was summoned to the High Court where Mokhoema conducted what lawyers agree to be an unprocedural interview with him. During this interview Thabane was given notice that he would be tried for murder along with his wife in 2022.
Thabane was never remanded by the Magistrates court, which according to lawyers, contravened proper procedure in a manner that could open up a loophole for the case against the couple to be dropped.
Phafane said the November 2021 interview by Mokhoema was very abnormal and unusual, regardless of any kind of a case. He would not comment on what the consequences would be for this flawed procedure but only said that â€œwe will cross that bridge when we get to it, right now we are playing the cards close to our chest. We donâ€™t know what will happen but we are well aware that the procedure is incorrect.â€
Phafane added that as far as â€œwe are concerned, these guys [prosecution team] are putting the cart before their horses because according to the right procedure, the remanding court is the lower court, the Magistrate court and bail is given by both the Magistrate and High Courtâ€.
Deputy Registrar, Advocate Lesitsi Mokeke, however, said the procedure followed in Thabaneâ€™s case was correct. â€œWe have to call them for an interview where they explain their names, where they live, whether they work or what is their source of income and whether they have lawyers, stating their names. Then the case is good to start in a trial after those procedures have been completed.â€
To date, Thabane has not been officially charged with Lipoleloâ€™s murder.
â€œâ€¦if the prosecutors donâ€™t do their job very well, we are duty-bound to acquit peopleâ€, this was said by Chief Justice Sakoane Sakoane this week when opening a validation workshop on needs assessment, case management system and strategic development plan for judiciary in Lesotho.
Failure to extradite co-accused suspects
Further questions about the DPP were raised because of her failure to extradite suspects from South Africa who were supposed to face charges with the Thabane couple for allegedly carrying out Lipoleloâ€™s murder in 2017.
These suspects include, the late Rethabile Mokete affectionately known as Mosotho Chakela, the late Molefi Matima who was killed under controversial circumstances, Seabata Lieta residing in Mangaung, and Macheli Koeshe.
According to Motinyaneâ€™s predecessor, Advocate Leaba Thetsane, the office that trigger application for extradition is that of the DPP in conjunction with the office of the Commissioner of Police. But to date there has not been any such process initiated.
In an interview with MNN, Minister of Justice and Law, Advocate Lekhetho Rakuoane, confirmed that he has not received any extradition request from the DPP.
He told MNN that the DPP did not even respond to the questions he asked her about the extradition of the suspects residing in South Africa.
Advocate Rakuoane said this question ought to be asked in parliament emphasizing: â€œwe are bound to answer this questionâ€.
Was her appointment politically motivated?
Motinyaneâ€™s involvement in the Thabane case prompted MNN to look into her promotion to the DPP.
Hardly four months after Thabane was inaugurated as Prime Minister in 2017, his son-in-law and then Minister of Law Lebohang Hlaele, announced appointment of Motinyane as the acting DPP with then DPP, Advocate Leaba Thetsane, sent on leave pending his retirement.
There are concerns that Motinyane was promoted ahead of more qualified seniors.
Thetsane told MNN that historically, the office of the DPP has previously been occupied by someone with senior legal qualifications and experience in the Law Office.
â€œMotinyane was the fifth in terms of seniority and she was then a Chief Attorney, meaning there were other people ahead of her who qualified to become DPP like Letsipa Mofilikoane, Mokaku Thapelo and others who were Crown Attorneys.
â€œMeaning she skipped other positions in the Law Office and was hired politically,â€ he said, adding: â€œJustice Mochoroane Peter Mofokeng grew up in that office from civil servant to becoming a judge, he was followed by one Kali, then Semapo Peete who also grew up in the office, then Sipho Mdluli who was from Swaziland on contract became DPP.
â€œI became DPP after serving for 15 years in the Law Office. I became Senior Crown Counsel in 1985 to 1988, then Principal Crown Counsel in 1992, I was Chief Attorney in 1999. We ascended to the top post in that office by seniority.â€
Thetsane said it was only in 2002 when he became a Substantive DPP, adding: â€œI was in office from 2002 until 2017 when politicians tried to remove me and I refused until 2018 when I went for retirement.â€.
Thetsane, however, reserved his comment on whether Motinyane is competent to discharge the duties of the DPP. But Chief Justice Sakoane, commenting on Motinyaneâ€™s competence in an ongoing treason trial against Selibe Mochoboroane and Tlali Kamoli, had labeled Motinyaneâ€™s ineptness akin to a mis-educated law student who should to go back to school and learn more about law ethics or demand her school fees back.
â€œWhat do I make of the DPP who prosecutes on behalf of the State and doesnâ€™t know the very law that governs prosecutions in court? It is not surprising that criminal cases take such a long time because if this law was being applied as parliament has drafted it, one would not have a situation where you have accused people in jail for even over two years,â€ he said.