A bid by the Director of Public Prosecutions (DPP) Advocate Hlolefang Motinayane to have the Chief Justice (CJ) Sakoane Sakoane ousted from the murder and treason case involving inter alia former army boss Tlali Kamoli, Development Planning Minister Selibe Mochoboroane and former Deputy Prime Minister Mothetjoa Metsing suffered another low blow.
Motinyane is hell-bent on seeing the matter presided over by anyone but the CJ for not allowing her to have her way with South African lawyer Advocate Shaun Abrahams.
This after Abrahams had failed to honour a court appearance date despite an agreement by all parties.
Meanwhile, the CJ had thrown out the DPPâ€™s application for his leave hence the subsequent appeal of same, which he has also dismissed.
This is the matter in which the former army boss Lieutenant General Tlali Kamoli is accused alongside Captain Litekanyo Nyakane, Motloheloa Ntsane, Leutsoa Motsieloa and Mochoboroane while Metsing who was supposed to be joined in the matter failed to avail himself propelling the court to issue warrant of arrest against him last year December although he has neither availed himself in court nor been arrested.
The accused are fingered for an alleged attempted coup d’Ã©tat against the former Prime Minister Motsoahae Thomas Thabane in 2014 as well as murder of the late Police Sub-Inspector Mokheseng Ramahloko after the Lesotho Defence Force had raided the Lesotho Mounted Police Services (LMPS) headquarters in an attempt to intercept arms that would allegedly be used in the commission of crime.
Justice Sakoane slammed DPPâ€™s grounds to seek leave of appeal as baseless since Abrahams is not even complaining.
Advocate Motene Rafoneke who represented the DPP in the matter, argued that the decision made by the Chief Justice to kick-out Abrahams from the case affects the DPP as a litigant.
â€œHer rights under section 6 of the Criminal Procedure and Evident Act to retain counsel of her choice to represent her in proceedings before court have been affected,â€ he said.
However, the CJ remained adamant that the section did not apply where a counsel is unfit and disqualified or unavailable but Rafoneke was unable to provide an authority which rules that the section applies. He further said it is the dismissed lawyer who is supposed to take the matter up.
He handed down his ruling that â€œâ€¦the two rulings in respect of which leave appeal is sought, namely; sectioning of Mr Abrahams and refusal of recusal application are not interlocutory but final. Appeal in respect of this rulings lie without leave of this court and the application is dismissed,â€ he said.
He added that the embroiled parties especially the defense is entitled to approach the Court of Appeal to seek an expedited hearing of the appeals as noted by the crown.
â€œRegarding the fate of this matter, I am not in the clear because it all depends on when the Court of Appeal hears the crownâ€™s appeal and the result thereof.
â€œThe law is that if a party appeals against a recusal application, the court should not do anything until that appeal is addressed, otherwise it is to run the risk that if a court of appeal is not with the court whatever it does from now would be an irregularity.
â€œIt should be understood that I am constrained not to proceed with this matter until the Court of Appeal has determined their appeal. The best I can do is merely postponing this matter for mention,â€ he said.
He said the DPP is entitled to hire any lawyer in the world except Mr Abrahams for purposes of this case, â€œâ€¦except she doesnâ€™t want any lawyer except Abrahams. Not unless you are telling me that without Abrahams these accused are going to walk, he is the only prosecutor who can make a case for their conviction,â€ he said.
Advocate Motene Rafoneke who argued the case on behalf of Motinyane said they consulted the law and realised that in actual fact they are entitled to proceed to the court of appeal without the intervention of Sakoaneâ€™s court.
The matter has been scheduled for March 15, 2022.