How Mokhosi got bail

How Mokhosi got bail

MASERU – THE investigation into Constable Mokalekale Khetheng’s disappearance had stalled for more than a year.
Answers had remained elusive despite consistent media coverage and legal pressure from his desperate family. At what point the constable had disappeared when he was arrested in Hlotse remained unclear.
At some point the police claimed that he had escaped from custody and they were looking for him.
The answer that broke the case came from a brave policewoman who had fallen out with her bosses after they allegedly tried to force her to make a false statement about the constable’s fate.
The police’s reaction was dramatic. Four senior police officers were quickly arrested and charged with his murder.
As the constable’s remains were being exhumed amid public outrage questions were asked as to who else in the echelons of the former government was involved.

It would not be long before the police called former Defence Minister Tšeliso Mokhosi for questioning and subsequently charged him with the constable’s murder.  Yet few could have expected what followed.
Despite facing a murder charge, Mokhosi’s bail application was not opposed.

Some people were aghast for rarely do murder suspects get bail without some opposition from the prosecution.
Some asked if the Director of Public Prosecutions, Leaba Thetsane, might have given Mokhosi an easy ride. The fallout was as spectacular as it was dramatic.

Lebohang Hlaele, Minister of Law, Constitutional Affairs and Human Rights, is reported to have been furious. He later told a press conference that the government is unhappy with the DPP’s decision to let Mokhosi’s bail application go unchallenged.
In the public outcry that ensued Acting Police Commissioner Molibeli entered the fray.
He is reported as having said he was annoyed by the decision.

Acting Police Commissioner Molibeli is also said to have complained to ‘Mole Khumalo, the principal secretary of the Ministry of Law, Constitutional Affairs and Human Rights. Meanwhile, Thetsane dodged media interviews with the same excuse that he doesn’t talk to journalists. His trouble over Mokhosi’s bail had coincided with incessant pressure to push him out of office.
And so his side of the story over the debacle had remained unknown.

But that changed this week when the thepost discovered a memo that might amount to his response to the allegations that he unilaterally decided not to oppose Mokhosi’s bail. The memo sent to the Acting Attorney General on September 14 lays bare the bickering that happened in the few hours leading to the bail application.

The memo was also copied to Minister Hlaele, his principal secretary, the Minister of Police and Acting Police Commissioner Molibeli.
Thetsane begins by denying that he unilaterally decided not to oppose bail.
The decision, he says, was made after consultation with the police.

He says the police agreed with his assessment that they could not oppose bail because their case against Mokhosi was on ‘thin ground’.
The memo tells a story of the intense back-and-forth that happened as the DPP and the police debated how to handle Mokhosi’s bail application.
But before he gets into the pith of his explanation the DPP complains that the police have a habit of bringing him dockets a few hours before suspects are due to appear in court.

He says a few weeks before Mokhosi’s case he had warned the police about this “habit” which he says puts his office under pressure.
Thetsane claims the police however did the same thing with Mokhosi’s case.
He says on August 30, Superintendent Mokeke called him to announce that he wanted to remand Mokhosi for the murder of Khetheng.
By that time four police officers had already been charged and detained for Khetheng’s murder.

Mokhosi had been in detention since August 28 and the 48-hour deadline for his release was about to expire.
Thetsane says after pointing out that Superintendent Mokeke was still bringing cases on short notice despite his earlier warning he told him to defer the remand to August 31 and instructed him to immediately bring the docket to his office.
He however alleges that Superintendent Mokeke did not bring the docket immediately but instead sent it the next morning with a team of investigators.

The DPP claims that as he was discussing the docket with Crown Attorney Tlali, Principal Secretary Khumalo called to ask about his progress because the 48-hour detention period was about to expire.
He says although he found the inquiry astonishing he explained to Khumalo that he had just received the docket.
Thetsane says what followed was a debate on “whether or not there was a prima-facie case against” Mokhosi.

This, he says, was crucial because it is the main issue the court considers in bail cases.
Of particular interest to the DPP was the confession Mokhosi is alleged to have made.
He says in the alleged confession Mokhosi said: “Ke boleletsoe ke Commissioner Letsoepa hore motho eane eo mapolesa a ne a ilo motsoara, a ‘molaile, abile a mo lahletse nokeng…. Ka morao ho moo ke tsebile ha Khetheng a ne a epolloa Lepereng”. (I was told by Commissioner Letsoepa that the person the police were going to arrest, they had killed him and threw him in a river . . . After that I knew when Khetheng was going to be exhumed at Lepereng)
The DPP says the debate with Superintendent Mokeke was whether “the statement amounted to a confession or not”.
He says as they were debating, the deadline for Mokhosi’s release was getting closer. At around 4 PM on August 31 the DPP received Mokhosi’s bail application which also announced that the matter was to be heard at 12:30 PM on September 1 instead of 9:30 am as indicated earlier.
The postponement, the DPP claims, had been sought to enable the prosecution to hear the police’s attitude towards Mokhosi’s bail.
The DPP says he immediately tried to call Superintendent Mokeke but could not find him. He then called Deputy Commissioner of Police Hlaahla who also did not know where Superintendent Mokeke was but promised to relay the message to his supervisor, Assistant Commissioner of Police Maphatšoe.

“It was objectively clear that the DPP was at this juncture running helter-skelter; an attitude clearly demonstrating that he was mindful of the high profile nature of the matter under reference.”
The DPP says after a second call ACP Maphatšoe told him that Superintendent Mokeke had promised to instruct him to urgently see the DPP.
Superintendent Mokeke later rushed to the office but found Advocate Tšoeunyane of the DPP’s office already on his way to the bail hearing.

Superintendent Mokeke, Thetsane claims, said the police were opposing Mokhosi’s bail on the basis that the former minister was in danger of being killed by the people he had implicated in his statement.
He says he told the superintendent that if that was the reason for opposing the bail then the state had legal obligation to protect Mokhosi as it does with potential crown witnesses.

He says he then allowed the superintendent to read Mokhosi’s bail application.
In the application Mokhosi admitted to making the “confession” but said he did so under duress.
“Hence the DPP did point to Supt. Mokeke that the very confession relied upon by the crown as a basis for the existence of a prima-facie case is definitely going to be challenged at the trial stage.”
He says he then asked Superintendent Mokeke if, given the length of the time between Mokhosi’s surrender to the police and his appearance before the Magistrate, “it is probable (objectively) that assaults were being meted out to him with a view to extracting an inadmissible confession as he alleges.”
“It was pointed out to Supt. Mokeke that rather than have all these exposed at the very stage of bail, it would be prudent not to oppose bail and defer same to trial stage,” the DPP says.
He says he mentioned that so Superintendent Mokeke could realise that the “prosecution’s opposition to the bail is premised on very thin ground…”
The DPP says at that point he agreed with Superintendent Mokeke that “no matter what our opposition to bail will not stand the test of time or pass muster before a Court of Law”.
Thetsane says as they were debating with Superintendent Mokeke, Advocate Tšoeunyane, who was dealing with the bail, called seeking instructions on how to proceed.

Advocate Tšoeunyane was told that the bail application was not being opposed but Superintendent Mokeke wanted additional conditions.
The DPP also tries to downplay the significance of his decision not to oppose bail, saying the final discretion is with the court.
“Legally speaking it does not matter whether the prosecution opposes bail or not, a Court of Law is the final arbiter,” he says.
He ends the memo with a concern that the Acting Police Commissioner had complained to Principal Secretary Khumalo instead of talking to him directly.

He warns against discussing the issue in public. “As the adage goes it is undesirable to ‘wash one’s dirty linen in public’”.
After being granted bail Mokhosi fled to South Africa from where he later alleged that he was brutally tortured by the police.
The government has denied the allegation.

Staff Reporter

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