LIEUTENANT General Tlali Kamoli and eight other soldiers have no one to blame but themselves for their long stay in remand prison. That was the damning verdict by High Court judge, Justice Charles Hungwe, which he delivered this week. The soldiers had filed a second application for bail citing a change in circumstances. The application was dismissed.
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The bail applicants were Lt Gen Kamoli, Captain Litekanyo Nyakane, Captain Haleo Makara, Sergeant Lekhooa Moepi, Sergeant Motsamai Fako, Corporal Marasi ’Moleli, Corporal Motšoane Machai, Corporal Mohlalefi Seitlheko, and Corporal Tšitso Ramoholi.
They are charged with the murder of Lieutenant General Maaparankoe Mahao, two attempted murders of his nephews, and malicious damage to property in that they damaged his car in June 2015.
The soldiers had cited exceptional circumstances and changed circumstances. They have been in prison since 2017.
Justice Hungwe narrated how the petitioners contributed to their long stay in custody while awaiting trial.
The soldiers had asked Justice Hungwe to grant them bail on the basis that their trial was likely to take an unreasonably long time to conclude after the lead prosecutor, Advocate Shaun Abrahams, withdrew from the case last year.
They said a new prosecutor would need enough time to study their case which would keep them in prison longer.
The judge however shot down their plea insisting their long stay in prison was in fact self-inflicted after they triggered postponements of their trial many times.
Justice Hungwe said after the soldiers were arrested in 2017, their trial took long to start because of the elongated procedures to appoint foreign judges and a prosecutor. The trial only began on January 6, 2020, three years after their arrest.
Justice Hungwe said when the crown was about to call its first witness, Lieutenant General Mojalefa Letsoela, defence lawyer Advocate Napo Mafaesa asked for a postponement of the case.
“When his request was declined, he threatened to withdraw from the matter. As a result, the court adjourned and counsel requested to meet in chambers,” Justice Hungwe said.
In that meeting, he said, Advocate Mafaesa said he was going to file for the judge’s recusal from the case.
“This was the beginning of several interlocutory applications which characterised the trial,” he said.
He said before that date Sergeant Fako had filed a bail application which was not granted.
Preparatory hearings were held and a scheduled pre-trial planning and management meeting was convened for the parties to identify uncontested facts and issues to chart a trial roadmap.
He said the defence counsel was not prepared to make concessions of the barest kind, instead they challenged “every allegation of fact and conclusion of law”.
“Technically, it meant that the crown would have to assume that nothing would go unchallenged. This forced the crown to prepare an additional list of witnesses,” he said.
Justice Hungwe had to give directions as timelines for discovery of the new witness statements.
“Postponements became the order of the day from that day. A consequence of this was that the trial could not start earlier than January 2020.”
In that month Justice Hungwe dismissed the application for his recusal and the defence appealed against the decision.
The Court of Appeal sits biannually and this meant that the appeal would be heard between April and May.
The appeal, however, was not heard in that sitting and it had to wait for the October session and it was dismissed. Covid-19 had struck and it was not easy for the courts to sit in those trying times.
As the court kept postponing the hearing of the trial, before the hearing of the recusal appeal, efforts to comply with other discovery issues failed, the judge said.
This led to the court ordering the government to provide it with the Justice Mphaphi Phumaphi Commission Report on the conduct of the army that led to the murder of Lt Gen Mahao, which the defence had demanded.
The trial was postponed to November 2020 in the hope that by that time the Phumaphi Report would be available but it was not.
It was postponed to December but the results were still the same.
On December 7, 2020 Justice Hungwe was told that some of the accused had filed an application in the Constitutional Court which, if successful, would nullify the case before him.
The trial had to be held in abeyance pending the determination of that matter.
It was postponed to February 5, 2021.
The trial was back in court in March, after the Constitutional Court defeat, and still there was no Phumaphi Report.
After hearing the then Defence Ministry principal secretary, Colonel Tanki Mothae, Justice Hungwe dismissed the discovery of the Phumaphi Report and the trial was postponed to May 27, 2021.
On that day, he said, the crown agreed that the case should be postponed because there was no electricity supply to power the recording equipment in court.
On June 1, 2021, lawyers for some of the accused withdrew from the case which necessitated a postponement to June 3, a date on which the first witness took the stand, some 18 months after plea recording in 2020.
“Since then, the petitioners have requested, and have been granted, several postponements on various basis and have brought some interlocutory applications,” the judge said.
In July 2021 the defence filed for the recusal of the crown counsel after one of the crown witnesses implicated Advocate Abrahams in unprofessional conduct.
The application was dismissed and the trial was postponed to September 13 of the same year.
After that the case was postponed twice “without any protest from the petitioners” because it was based on health reasons.
On September 24 the case had to be postponed to November 1 through to 12 because the crown was seized with another matter in another court.
The case was postponed to November 22 for setting of fresh trial dates after the crown explained to the court the problems it encountered in the other case.
April 4 to 14 were agreed as new dates by both parties.
“Subsequent postponements followed. Both parties consented to these,” the judge said.
He said the most recent postponement was meant to give the new lead counsel time to study the case, after the withdrawal of Advocates Shaun Abrahams and Ranale Thoahlane last year.
Quoting authorities, Justice Hungwe said an accused who has either sought numerous postponements, or delayed prosecution in less formal ways, “cannot later invoke those very delays”.
“Eventually, an accused who has constantly consented to postponements, even if not initiating them, could find it hard to establish delay prejudice,” he said.
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