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Sakoane recusal case dismissed

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Mohloai Mpesi

The Chief Justice (CJ) of the High Court Sakoane Sakoane dismissed the case in which the Director for Public Prosecution (DPP) Advocate Hlalefang Motinyane sought his recusal from a treason and murder trial he is presiding over.

The move to have the CJ off the case resulted from his decision to kick the then lead prosecutor in the case, Shaun Abrahams, off the case for failing to show up before court on January 10, 2022 in a continuation of the case following the date that was set down in December 13, 2021 and agreed upon by all the counsels from both sides.

As a result, Motinyane had felt that Sakoane was biased hence he should excuse himself from the case.

Earlier this month when the court recommenced, the prosecution was led by Hopolang Nathane KC with directives for postponement but he later withdrew the application. Sakoane said Abrahams denied some of the contents in the DPP’s affidavit used to motivate the postponement.

The testimony of the former Republic of South African’s Director for Public Prosecution, Abrahams was made under a form of enquiry made by Sakoane last week Monday.

“He further testified that the DPP had not informed him that she had appointed Mrs Nku as the lead prosecutor, that the DPP only knew about his availability on the night of January 16, 2022 and he flew to Lesotho on the morning of the 17th,” he said.  

He said the trial dates of 10 to January 21 were agreed to by the court and all counsels which came after the recognition that there were no suitable dates after the opening of the High Court.

“There has always been a pressing need to give priority to this trial because the accused have been in custody for the last five years or so. This is the reason why the court found it imperative to sit during vacation in the interest of justice,” he said.

“Abrahams disagreed with the DPP suggestions in her postponement affidavit that the trial would not proceed on account of Molati being absent. Abrahams committed to the trial dates on the realisation that double booking is a sanctionable professional misconduct. There is then no basis for the DPP’s contention that she and Abrahams agreed that the trial would proceed in his absence.

“Such an agreement was based on misinformation. Her purpose was to let Abrahams lead the case for a week and there after reappear in this court under the pretext that he had never left the brief,” he said talking tough on the duo that lied to the court.

“This behaviour of Abrahams and the DPP shows the cavalier manner in which they treat this court; they want this court to accept what they said in the application for postponement and the appointment of Nku as lead prosecutor. Their behaviour as officers of the court is completely unacceptable, it is the DPP’s duty to see to it that crown counsel retain and exercise her delegated power properly and efficiently by attending court at all time, not at their convenience.

“Section 6 (5) enjoins them to prosecute cases with due expedition while section 12 obligates them to respect fair trial of accused persons, such rights include avoiding to bring frivolous applications’ postponements by reliance on false information.

“Prosecutors have behavioural standards; principles foundational to the code of conduct emerge from case law and international standards. Prosecutors must at all times maintain the honour and dignity of their profession by conducting themselves professionally in accordance with the law, rule and ethics of their profession,” he said.

The Cj also pointed out that “…they must at all times exercise the highest standards of their profession, integrity and care. Prosecutors must be above track of suspicion and as ministers of justice, they have a special duty to ensure that truth emerges in court and they must always protect the accused’s right at fair trial. They must carry out their functions impartially and not be affected by individual and personal interests for political public and media pressures.

“The DPP concedes that the court is entitled to conduct an enquiry if a prosecutor seeks to postpone a matter on the basis of falsehoods and impose sanctions. She however contends that ‘…expelling my lawyer is not one of the contemplated sanctions.’ This contention exposes the DPP’s ignorance about the powers of the court over errand prosecutors.

“Judicial officers have inherent powers to discipline practicing lawyers and the jurisdiction to discipline lawyers predates disciplinary regime provided for by the Speedy Court Trial Act, it is an institutional jurisdiction which no branch of government can take away or weed down. Examples of such powers are suspension, removal from the roll and disqualification from the case, therefore Speedy Courts Trial does not confer the courts with disciplinary control over lawyers but merely affirms it.

“A ruling has been made and the case is dismissed,” he said

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