Mohloai Mpesi
Incarcerated former army commander Lieutenant General Tlali Kennedy Kamoli lost a bid to have Justice Charles Hungwe recused from his attempted murder case.
Kamoli’s application to have the Zimbabwean-born judge recuse himself from the case that emanated from the simultaneous bombings that erupted at the homes of the former first lady Maesiah Thabane in Moshoeshoe II, ‘Mamoshoeshoe Moletsane and the residence of former Police Commissioner Khothatso Tšooana at Ha Abia on January 27, 2014, nose-dived when Hungwe pointed that there were no grounds sufficient to have him accede to the call.
Kamoli has been incarcerated along with Major Pitso Ramoepana, Captain Litekanyo Nyakane, Heqoa Malefane and Corporal Mohlalefi Seitlheko in the matter.
Last month Kamoli made a tirade address where he accused Hungwe of prejudging him, thus connoting bias against him by the judge. He said Hungwe had remarked that he was set to deal with “his attitude†on their first encounter in another case (Maaparankoe Mahao murder case).
The emotional address came after his legal counsel Letuka Molati had failed to show up in court on March 16, 2022 when Kamoli took the stand to address the court. On the day, Kamoli who was breathing fire, told the court he was ready to die since he was well aware that the judge is pushing the agenda of the lead crown counsel, Shaun Abrahams to have him found guilty and hanged.
Earlier this week Hungwe argued that it was in two occasions that Molati had failed to show-up before court and directed advocate Napo Mafaesa to take briefs on his behalf while he said on March 16 there was no explanation for his absence.
That’s when Kamoli had poured his heart out after being granted the stand to address the court that he was never asked the whereabouts of his lawyer-whom he said had an appointment for medical attention.
However, following the events, when he had resurfaced, Molati applied for a recusal on grounds of bias hence the judge would not apply his impartial mind to the matter as he is presiding in two cases that include his client where the same witnesses were set to furnish the court with evidence in both cases, so it is highly possible for the judge to confuse the evidence.
As if that was all, he further cited that Hungwe should hand over the case to another judge because he was not going to listen to the case to finality as his contract was soon set to expire.
However, Hungwe was not moved as highlighted the importance of continuity on the matter in which he has already been addressed and the accused already pleaded.
“The applicant asked to address the court and he pointed out the error that he had met. Molati added three further grounds to those which were made by his client which were that I declined to reallocate the matter to another judge and that I will not be able to complete the trial as my employment contract was coming to an end.
“…and further that I will not be able to divorce my mind from the predispositions and the impressions made by witnesses in another case who come to testify for the second time with the same evidence,†Hungwe said.
He continued that, “I deal with the ground that this matter be allocated to another judge and that I refuse to acceded to the demand that it be reallocated. First, there is no written directory to me that a decision to reallocate the matter to another judge has been met, second; since the accused pleaded to the charges in this matter, it is a partly-heard matter before me therefore any attempt to reallocate it would constitute a most grievous affront to the judicial independence and the rule of law as practiced in civilized jurisdictions,†he said.
He said he was unable to debate the matter of his contract set to come to end as that matter is between him and the Judicial Service Commission (JSC).
“As for a submission that the expiration of my contract would necessitate my recusal, I am unable to follow this argument. How my contract with the JSC of Lesotho serve as a possible ground for a recusal beggars believe,†he said.
He said the general rule is that a party that intends to raise issues of actual or apparent bias should do so as soon as possible in the proceedings. He continued that it is inappropriate to raise submissions on other matters of law with an application for recusal being held in a reserve so to speak pending the decisions in those other matters.
“Taken out of his context, Mr Molati’s argument sounds quite persuasive, once context is given to the statement that I made, his argument loses force but that is not the approach in this type of application,†he said.
He further said the hypothetical fay minded lay observer would understand that judges have to make decisions in accordance with the law and are usually capable of ignoring consequential effects of their decisions.
“While the hypothetical lay observer does not have a detailed knowledge of the law, he or she understands the judicial processes and the issues to be determined, he or she knows judges are under strong professional pressure to act with integrity and impartiality.
“In applying this above test in respect of issue on the grounds advanced by the applicant, the relevant facts of which the application is based ought to be taken into account. Ultimately the question asked is whether a reasonable and informed person with knowledge of all circumstances, viewing the matter realistically and practically would conclude that the judge’s conduct on May 14 and 16 would give a reasonable apprehension of bias, I am unable to answer this question in affirmative and therefor I will dismiss the application,†he said.
