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Kamoli bail bid flops again

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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.

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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Ambassador fired

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LESOTHO’S ambassador to Canada, Molise Tšeole, has been fired over a Facebook post criticising the government.

Tšeole was fired on Wednesday, the same day he was found guilty after a virtual disciplinary hearing held last Friday.

Tšeole was informed of his termination by Principal Secretary of Foreign Affairs, Thabang Lekhela. Lekhela said the Tšeole’s termination and recall from the embassy in Canada was with immediate effect.

The letter instructs Tšeole to wrap up his affairs and “report to the Headquarters on or before” May 7.

Tšeole got himself in hot water after he made a Facebook post, on April 13, disparaging the government.

“This is the government of the rich. They see the poor as nothing,” Tšeole’s post reads.

“Now they take all the funds meant to help the people and share them among themselves.”

“There is no buying power, there is no money in circulation.”

The reaction from his bosses in Maseru was as instant as it was thundering.

Six days after that post Tšeole was before a disciplinary panel chaired by the Principal Secretary of the Ministry of Communications, Kanono Ramashamole.

He was accused of “failure to have absolute and undivided loyalty to the constitution and lawfully constituted government”.

Other charges were that he failed “to support and maintain the government of Lesotho according to the constitution and other laws of Lesotho”, “caused damage that brought public service into disrepute” and “wrote and circulated a vexatious statement with malicious intent”.

All charges emanated from Tšeole’s Facebook post.

The disciplinary panel found Tšeole guilty and ruled that he is not fit for office.

“The accused is not fit to continue to represent Lesotho internationally, therefore he must be recalled from the embassy,” Ramashamole said in the judgement.

During the virtual disciplinary hearing, parts of which were heard by thepost , Tšeole is heard questioning the credibility of the panel that tried him.

Tšeole kept having a back-and-forth with Ramashamole throughout the intense hearing
Tšeole told the committee that the proceedings should not be high-jacked, insisting that it should be held in a way that will make him feel satisfied.

“I want to know the reasons you are made the chairman of this committee,” Tšeole asked Ramashamole.

Ramashamole kept telling him that he should allow him as the chairman to speak but Tšeole kept talking.

“Do not interrupt me so that I read the charges for you. Let me work using the proper procedure,” Ramashamole said. But Tšeole kept interjecting.

Tšeole later kept quiet and Ramashamole read the charges.

He however argued that the case should be before the courts rather than the disciplinary committee.

Before Ramashamole could respond, Tšeole said he first had to be sure if the committee would bring justice to him.

“I want to be sure that your court is fairly constituted before anything else.”

Ramashamole tried to respond saying they were following the law but Tšeole said that was not true.

Tšeole said he wanted to be represented by a lawyer.

Ramashamole told him that if he did not allow the hearing to continue he would be denying himself a chance to defend himself.

Tšeole insisted that he wanted a legal representative.

Ramashamole told Tšeole that he would continue with the case despite his objections.

Tšeole’s lawyers, Astute Chambers, demanded that another hearing should be held within 48 hours from yesterday or else they would have “no other option but to approach the courts of law”.

Tšeole has written a separate letter appealing against the judgement, saying Ramashamole ignored him when he made it clear that he was not guilty.

“I was present at the hearing, I was willing to have a fair hearing,” he said.

“Your panel cannot make the decision as if I was absent.”

Nkheli Liphoto

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Five killed in Fobane

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FIVE people were shot dead at a home in Fobane last Saturday night in what is suspected to have been a revenge attack linked to famo gangs involved in illegal gold mining in South Africa.
Two of the victims are relatives while the other three worked for the family.
The family’s four vehicles were also torched.

The police say the assailants were looking for the family head, a 38-year-old man who was not at home during the attack.

The head chief of Fobane, Motsarapane Molapo, told thepost that the family head is an illegal miner in South Africa.

thepost has been told that the attack in Fobane could be linked to an earlier incident in Peka, where one man was shot dead and two seriously injured after being attacked by suspected members of a rival gang.

The three, who are said to be Terene gang members, were in Peka on Saturday to attend the funeral of a colleague who was to be buried on Sunday.

They were attacked moments after they had visited their Terene leader, Tšepiso ‘Mosotho’ Radebe, who lives in the same area.

Sources said the survivors were able to name their attackers to their colleagues who then launched a revenge attack on the family in Fobane.

The group suspected that the head of that family was linked to the group that had attacked their friends in Peka.

Police spokesman, Senior Superintendent Kabelo Halahala, said the police could not connect the two incidents.

He however described the incident as “shocking”.

“We are stunned by the manner in which the incident happened,” S/Supt Halahala said.

“We are struggling to figure out how this happened. This is really shocking.”

He said preliminary investigations have revealed that a group of men stormed a room where the herd-boy was sleeping.

They then allegedly ordered him to wake up the people in the main house. Once in the house, the men demanded to know where the head of the family was.

The answer was that he was in South Africa.

S/Supt Halahala said the assailants also demanded money from the wife but she said she did not have any.

He said they then pushed them out of the room and brutally killed them.

S/Supt Halahala said they found 19 different bullet shells of 5.56mm and 9mm pistols at the scene.

S/Supt Halahala said the assailants were travelling in a Toyota Fortuner and two 4x4s.

He however declined to give further details for fear of jeopardising the investigation.

The Chief of Fobane, Motsarapane Molapo, said the village is still in shock.

He said there had been another murder in the village earlier that Saturday

Majara Molupe

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Army ordered to pay up

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THE Ombudsman has asked parliament to intervene to force the Lesotho Defence Force (LDF) to compensate families of people killed by soldiers.

Advocate Tlotliso Polaki told parliament, in two damning reports on Monday, that the LDF is refusing to compensate the family of Lisebo Tang who was shot dead by soldiers near the former commander, Lieutenant General Tlali Kamoli’s home in 2014.

The LDF, she said, is also refusing to compensate the family of Molapo Molapo who was killed by a group of soldiers at his home in Peka, Ha-Leburu in 2022.

Advocate Polaki wrote the LDF in January last year saying it should pay Tang’s mother, Makhola Tang, M300 000 “as a reasonable and justifiable redress for loss of support”.

The Tang family claim investigation started in February 2022 and the LDF responded that it “had undertaken the responsibility for funeral expenses and other related costs”.

Advocate Polaki investigated whether the LDF could be held accountable for Tang’s death and whether his family should be compensated while the criminal case is pending.

She found that the soldiers were “acting within the scope of their employment to protect the army commander and his family” when they killed Tang.

Soldiers killed Tang in Lithabaneng while she was in a parked car with her boyfriend at what the army termed “a compromising spot” near the commander’s residence.

The three soldiers peppered the vehicle with a volley of shots, killing Tang and wounding the boyfriend.

Advocate Polaki found that the army arranged to pay for the funeral costs and to continue buying groceries and school needs for Tang’s daughter.

The LDF, however, kept this for only four years but abruptly stopped.

When asked why it stopped, the army said “there is a criminal case pending in court”.

The army also said it felt that it would be admitting guilt if it compensated the Tang’s family.

The Ombudsman said “a civil claim for pecuniary compensation lodged is not dependent on the criminal proceedings running at the same time”.

“The LDF created a legitimate but unreasonable expectation and commitments between themselves and the complainant which had no duration attached thereto and which showed a willingness to cooperate and work harmoniously together,” Advocate Polaki found.

“The LDF was correct in withdrawing such benefit in the absence of a clear policy guideline or order to continue to offer such benefit or advantage,” she said.

“However, she should have been consulted first as the decision was prejudicial to her interest.”

She said the army’s undertaking “fell short of a critical element of duration and reasonability”.

Tang was a breadwinner working at Pick ’n Pay Supermarket as a cleaner earning M2 000 a month.

Her daughter, the Ombudsman said, is now in grade six and her school fees alone had escalated to M3 200 per year.

She said an appropriate redress should be premised on her family’s loss of income and future loss of support based on her salary and the prejudice suffered by her mother and daughter.

She said M300 000 is “a reasonable and justifiable redress for loss of support”.

In Molapo’s case, Advocate Polaki told parliament that the LDF refused to implement her recommendations to compensate his two daughters.

The complainant is his father, Thabo Joel Molapo.

The Ombudsman told the army in August last year that it should pay the girls M423 805 “for the negligent death of their father”.

Advocate Polaki said despite that the criminal matter is before the court, “it is established that the Ombudsman can assert her jurisdiction and make determinations on the complaint”.

Molapo, 32, was brutally murdered by a soldier in Peka in December 2020.

Molapo had earlier fought with the soldier and disarmed him.

The soldier, the Ombudsman found, rushed to Mokota-koti army post to request backup to recover his rifle. When he returned with his colleagues, they found him hiding in his house. The soldier then shot Molapo.

The LDF, the Ombudsman said, conceded that the soldier killed Molapo while on duty and that he had been subjected to internal disciplinary processes.

“The LDF is bound by the consequences of the officer’s actions who was negligent and caused Molapo’s death,” she said.

She found that after Molapo was killed, army officers and the Minister of Defence visited his family and pledged to pay his children’s school fees. They also promised to hire one of his relatives who would “cater for the needs of the deceased’s children going forward”.

The LDF, she said, has now reneged on its promises saying its “recruitment policy and legal considerations did not allow for such decision to be implemented”.

Molapo’s father told the Ombudsman that the LDF said “the undertakings were not implementable and were made by the minister at the time just to console the family”.

All the payments in the two cases, the Ombudsman has asked parliament, should be made within three months.

Staff Reporter

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