This is not law school – Sakoane

…CJ blasts DPP for ignorance of law, says she should go redeem her law school fees for being inept

Mohloai Mpesi

Chief Justice (CJ) Sakoane Sakoane came down heavily on the prosecution team spearheaded by the Director of Public Prosecutions (DPP) Advocate Hlalefang Motinyane, who he blasted for ineptness in a high treason and murder trial.

The CJ recommended that the DPP should go back to law school to demand the money spent on her education for putting up “a wet-behind-the-ears show” in the High Court in arguing for the CJ’s recusal from the matter.

He said it was too bad for senior counsel to not know the law and in a way be looking to him as though he were the one to teach them law.

“This is not Law school. I’m not the Dean of Law, I’m not going to teach them…they must go back to school…they must go back and get whatever they paid the (law) lecturer…” Sakoane J said.

The interjection came down during the argument in an application where the prosecution sought for Sakoane J to recuse himself from the case. 

This is a matter in which the Development Planning Minister, Selibe Mochoboroane, former boss army Lieutenant General Tlali Kamoli, Captain Litekano Nyakane, Lance Corporals Motloheloa Ntsane and Motsieloa Leutsoa.

The former are all accused of the 2014 attempted coup de tat against the government at the time as well as the murder of police Sub-Inspector Mokheseng Ramahloko.

Ramahloko was gunned down on August 30, 2014 when the armed Lesotho Defence Force members raided the Lesotho Mounted Police Service (LMPS) headquarters in Maseru.

Sakoane J said Motinyane was ignorant of the law after the prosecutor, Advocate Motene Rafoneke addressed the reasons of their application to have the Chief Justice recuse himself from the case.

Rafoneke said Sakoane J was being biased for expelling the former lead prosecutor Shaun Abrahams after the latter failed to show up this Monday as he was attending to other professional business in South African Tribunal despite the fact of being privy to the court date set last year December.   

The Judge stressed that the matter has taken a long time and there was no reason for Motinyane to delay the proceeding since there are other lawyers present.

“What do I make of the DPP who prosecutes on behalf of the State and doesn’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, you would not have a situation where you have accused people in jail for even over two years.”

“She has more than ten crown counsel, and then she retains counsel from outside. In other words, the scheme of the constitution is such that at no time can she say she doesn’t have a lawyer to represent her.”

“She cannot therefore wait for lawyers who are not available because in any event, the money disbursed to pay those lawyers are the taxes of the public. So the trial being a matter of public interest, it is expected that if the DPP doesn’t come to court to prosecute this matter and Mr Abrahams is not available, then lawyers should be there to do the job,” he said.

However, Adv. Rafoneke argued that the court was made aware of Abrahams’ unavailability but proceeded to double book him and that it was not easy for them to inform the South African tribunal about Abrahams’ engagement in the matter.

“His Lordship was informed that counsel retained by the DPP already had other commitments on those dates. In my line of argument, I want to emphasise that the court was not taken by surprise due to the absence of Mr Abrahams. The court already knew by December 13, 2021 that Abrahams had commitments elsewhere,” Rafoneke argued.

Sakoane J countered that any reasonable person would understand that if he says he is not available, the DPP should substitute counsel as DPP exercises powers to retain prosecution counsel.

“This is not a personal project; she retains that counsel on behalf of the public because the public is interested that this matter should proceed expeditiously”.  He said

He continued to state that Abrahams told him that he was doubly booked and that the DPP mentioned it in her application for postponement in Para 31 and that he had other professional commitments.

“It is my prerogative to set criminal matters here, if I say this matter is going to proceed it’s not for the lawyer to be moaning the fact that the matter proceeds here, because that’s an agenda dictated to by me not for the lawyer to say they will set it among themselves. So if I say Abrahams should come here, he has to come here and if he doesn’t come he is out”. The Judge stressed further

Rafoneke in defence said it was not easy for them to inform the court in South Africa to postpone that case because there is another case elsewhere when that case was scheduled way before this one.

The Chief Justice lashed out, quizzing “…Is it because that’s a better court than this one? If it was not going to be easy then the DPP should have timeously come to me informing defence counsel that it’s not going to be easy for Abrahams to be in court, then I am taking over or I am going to retain Mr Rafoneke and Mrs Nku”.

 The Judge continued to point out that the blame should be put at the door of the DPP because she knew it would not be easy.

Dealing with the issue of perjury committed by the DPP, the Judge said as follows “The point is that citizens should be worried about a lawyer who has not been candid with the court and doesn’t have integrity because this is the lawyer who actually misleads the court. In all fairness and confidence, why should citizens be prosecuted by prosecutors who lie to the court? I am supposed to trust lawyers to assist me to administer justice,” Sakoane said.

He continued to point out that, “You cannot insert hearsay evidence in an application; I would have expected a supporting affidavit from Mr. Abrahams to say he aligns himself with whatever the DPP said. You don’t use the name of person in an affidavit without the consent of that person.”

The judge laid his concern regarding the averments made by the DPP in her affidavit where she stated that Abrahams could always avail himself.  He went on to state that the implication is that Abrahams was still being paid even when he was litigating in South Africa.

Meanwhile, on behalf of the defense counsel, advocate Motia Teele KC said it is disconcerting for prosecution to suggest that a lawyer can come in and out without the permission of the court, which is not the situation. While the correct position is that when one appears before court, he starts business before that court without absenting themselves outside the court’s consent.

He said when advocate Abrahams was present on December 13, 2021, well aware that he would be absent, failed to tell the court that he will not be available. While the court indicated that the matter will proceed with him present or not.  He went on to state that it is strange that now the prosecution perceives this as unfairness.

“It was said that not only would the matter proceed if Mr. Abrahams is absent, but His Lordship said if Mr. Molati has commitments that would prevent him from coming to court he should pass the brief to another counsel because the court wanted to proceed with the matter.

“The prosecution wants to make this trial to be about the presence of Mr. Abrahams and they want to forget the accused persons who are not only in custody, deprived off liberty because of the charges, but who when these proceedings go on they are defending their own lives; they are facing capital offences.”

He read from Paragraph 69 of the DPP’s founding affidavit which reads… “Well I agree that the court is entitled to conduct an enquiry under Speedy Court Trial Act, there is a possible sanction such as the one that the court insinuated against me. I am at pains with the court’s decision in not only holding an enquiry but also expelling my lawyer from this case”. 

The case is scheduled to proceed on Wednesday.