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Witness says soldiers stalked police investigators

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MASERU – THE High Court heard yesterday that soldiers stalked police officers who were investigating a case in which some men were accused of killing a military intelligence officer. Senior Superintendent Api Letsie from Maseru Central Charge Office told Justice Semapo Peete that soldiers in plain clothes followed the investigators everywhere they went.

One of the investigators, Police Constable Ratsebe, was abducted by unidentified men around May this year and was found two days later bundled and blindfolded near Morija, some 40 kilometres south of Maseru.
Around the same time, three men who were accused of killing the military intelligence officer went missing soon after they were released from police custody without being charged.

Two of the men, Katleho Makibinyane and Molise Pakela, were from Mohale’s Hoek where Letsie told the court that the stalking soldiers were spotted during police investigations.
The two men, who are closely related, were never seen again after they were released from custody in May.
Their families have since sued the commissioner of police and the Lesotho Defence Force commander saying they want them to produce them dead or alive.
Another suspect was a Leribe man, Lekhoele Noko, who was also released from police custody on the same day and was abducted by heavily armed men near Lekokoaneng on his way home.
Noko was in the company of his mother in a bus when two twin-cab vehicles blocked the road and some men entered the bus and seized him.
He was never seen again.

Letsie was testifying in the habeas corpus case of these three families.
The three men were part of a famo gang that was from a funeral on May 13 when it was approached by military intelligence officers at the border gate in Maseru.

The agents, without identifying themselves, wanted to search the gang members for guns.
A gunfight ensued and a soldier was killed together with a street vendor who was hit by a stray bullet while another officer was injured.
Letsie told the court that soon after the fatal incident occurred he was informed that some members of the army were visibly angry.
He said the police took the suspects to Pitso Ground Police Station’s Criminal Investigation Division.
And this was done for their safety.

Letsie said he too saw that the soldiers were angry when he looked at their faces following the shooting incident.
He said they are still searching for the missing men.  “We are still tracing their whereabouts and we do not know where they are,” he told the court.
“We are investigating non-stop and intensively,” Letsie said.

This is the fourth month since the men disappeared. The case is still continuing and more witnesses are yet to be subpoenaed to testify in court.
Justice Peete made it clear that this is an enquiry not a trial. Advocates Litšoanelo Tau and Motikoe Lehooli are appearing for the respondents while the families are being represented by Attorney Khotso Nthontho.

Majara Molupe

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Blow for former DCEO boss

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AN attempt by Advocate Mahlomola Manyokole to block his prosecution for fraud and money laundering failed last Friday after the Court of Appeal dismissed his petition.

Advocate Manyokole and one of his seven co-accused, Relebohile Lesholu, approached the Court of Appeal after High Court judge Justice ’Maliepollo Makhetha refused to permanently stay their prosecution last year.

Manyokole was first suspended and later fired as the director-general of the Directorate on Corruption and Economic Offences (DCEO) before he was dragged to court on criminal charges in 2021.

Manyokole and Lesholu were seeking a permanent stay of prosecution after the crown took 18 months without prosecuting them from the date of their first appearance in the Magistrate’s Court.

They were also complaining that the state charged them before investigations were completed, citing challenges with respect to appointment of prosecutors for the trial.

They applied for a permanent stay of prosecution before Justice Makhetha on grounds that they were denied the right to a fair trial within a reasonable time as the state had failed to furnish them with indictment, criminal docket and witness statements.

The required documents were however furnished before the stay application was heard, leading to Justice Makhetha dismissing the application on grounds that the matter had become moot.

The President of the Court of Appeal, Justice Kananelo Mosito, sitting with Chief Justice Sakoane Sakoane and Justice Moses Chinhengo, found that the period of delay was not egregious and caused no irreparable trial-related prejudice.

The Court of Appeal said the criticism that Justice Makhetha erred in deciding that the matter of the issue of supply of the documents was moot by the time the stay application was heard or finally decided cannot be faulted.

“The State explained in sufficient detail why the documents were not furnished by the time of the stay applications,” Justice Mosito said.

“That explanation is not fanciful but reflects the reality and challenges faced by small jurisdictions such as ours in dealing with many complex and serious offences against accused persons in one trial,” he said.

“There was no refusal by the state to furnish the documents.”

The court found that the state faced real challenges with regard to completion of investigations, appointment of prosecutors and associated issues including the need for thorough preparations for the trial by the appointed prosecutors.

The state, the court said, was edging towards the holding of the Pre-Trial Planning Session (PTPS), scheduled for December 12, 2022, when they lodged the stay applications in the forlorn hope that a permanent stay would be granted.

The court determined whether the delay of 18 months was so inordinate or over-lengthy as to warrant the drastic order of a permanent stay of prosecution.

It found that it cannot be said that the delay in bringing the accused to trial in this case is egregious, nor can it be said that there already had been trial-related prejudice suffered by the appellants.

“A permanent stay of prosecution is a drastic and exceptional remedy entirely unsuitable to be granted at this nascent stage of the proceedings,” Justice Mosito said.

Justice Mosito said had the appellants “not truncated the process and had allowed PTPS scheduled on 12 December 2022 to go ahead, the trial may have been completed by now, 15 months later”.

He said accused people and their lawyers must be discouraged from pursuing unmeritorious applications for permanent stay without proper regard to the complexity of charges they are facing and the availability of institutional resources.

“Although the appellants have not been successful, costs may not be visited upon them, this being essentially a criminal matter,” he said.

The court also found that the appellants themselves contributed to the delay of their prosecution.

One of the state prosecutors, ’Mamongonyo Baasi, explained the causes of the delay in submitting the docket.

She said the 24 charges “are sophisticated economic offences” committed by senior officials of the DCEO and require a high degree of attention from any would-be prosecutor.

She said the forensic report that the state largely relies on was only completed on June 20, 2022.

The lawyer initially assigned to prosecute the case withdrew from the matter and new prosecutors had to be appointed and they needed time to familiarise themselves with the voluminous documents involved.

The prosecutors had to consult with necessary witnesses including forensic experts from PriceWaterhouse & Coopers who are resident in South Africa.

Baasi denied that the charges are trumped up and asserted in strong terms that there is a prima facie case against all accused persons as disclosed in the docket.

She said the accused persons demanded the documents verbally and in writing before the investigations were completed.

During the period between May 2021 and October 2022, there had been a change of prosecutors.

Responding more directly to Manyokole’s affidavit, Baasi said the prejudice he suffered, if any, did “not outweigh that which the State would suffer if a permanent stay was granted”.

“The state undoubtedly suffers prejudice if such heinous crimes are not prosecuted in circumstances where (Manyokole) was operating within the purview of a law enforcement agency and arbitrarily used institutional power of the DCEO for self-aggrandisement,” she said.

Staff Reporter

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Lawyer wins praises for defending legal profession

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THE Court of Appeal has praised Advocate Rethabile Setlojoane for resisting the police’s attempt to force him to violate the principle of attorney-client privilege during investigations.

The Court President, Justice Kananelo Mosito, flanked by four other Justices of Appeal, last Friday ruled that it is crucial to uphold the fundamental legal principle of attorney-client privilege.

The court said Advocate Setlojoane had sought to vindicate not only his own rights but also the rights and ethical obligations of the legal profession as a whole.

The court also criticised the High Court for declining jurisdiction when Advocate Setlojoane approached it last year complaining about the police’s conduct.

Advocate Setlojoane is representing Lehlohonolo Selate who is currently in prison facing a raft of charges.

Selate is suspected of defrauding the government of M50 million between October 2020 and September 2021.

A company called Sunny Penny (Pty) Ltd, in which Selate has some interest in, is also suspected of being involved in the fraud.

The police investigators summoned Advocate Setlojoane for questioning following the payment from Sunny Penny (Pty) Ltd.

During the questioning, the police directed him to surrender all files relating to his client and money paid as fees by Sunny Penny (Pty) Ltd.

Advocate Setlojoane refused to do so, citing the principle of lawyer-client privilege.

He was taken to the Subordinate Court in an attempt to have him joined as an accused in the case against Selate.

However, his lawyer objected to this joinder by invoking provisions of Section 128(1) of the Constitution of Lesotho, which requires that constitutional questions be referred to the High Court.

The magistrate accepted the objection and did not join Advocate Setlojoane as an accused.

Consequently, he instituted an application in the High Court and on June 12 last year a coram of three judges made up of Justices Moroke Mokhesi, Polo Banyane and, ’Maliepollo Makhetha heard the application.

On September 14, 2023, the High Court delivered its judgment and dismissed the application, declining to exercise its constitutional jurisdiction over the violation of the lawyer-client privilege and the right to legal representation.

The High Court based its reasons on the availability of other adequate means of redress.

The court said the lawyer-client privilege is a fundamental principle that is essential for effective legal representation and protecting client’s rights.

It also said by declining jurisdiction, the High Court missed an opportunity to guide the scope and application of the lawyer-client privilege within the Lesotho legal system.

The court said, however, it is important to note that section 22 of the Constitution allows the High Court to decline to exercise its powers if it is satisfied that adequate means of redress are or have been available under other laws.

The court should exercise its discretion to decline jurisdiction only in “very exceptional circumstances”.

The Court of Appeal highlighted “the right of the client to be free from disclosure of confidential communications with his or her lawyer, subject only to the limited exceptions recognised by the common law”.

The court emphasised that the lawyer-client privilege is not merely a rule of evidence but a fundamental principle that ensures the effective exercise of the right to legal representation and the fairness of criminal proceedings.

It also said the rationale of the privilege is not the protection of the individual client, but the upholding of the administration of justice itself, which depends on the free and full communication between clients and their legal advisers.

It said an accused person could challenge the admissibility of evidence obtained through the unauthorised recording of conversations with their legal counsel, as such recordings would violate the lawyer-client privilege and undermine the right to effective legal representation.

The court said while the Money Laundering and Proceeds of Crime Act 2008 does not directly mandate a legal representative or adviser to hand over client funds paid as fees, it imposes obligations to report suspicious transactions.

If subsequent investigations and legal processes determine that these funds are proceeds of crime, they may be subject to confiscation or forfeiture.

Therefore, the legal representative’s duty primarily involves reporting rather than direct transfer of funds to the authorities, unless directed by a court order following due legal processes.

The court said while the police do not have the explicit authority to directly demand the handing over of client funds paid as fees to legal advisers merely on suspicion, they are permitted to seize such funds if there is a reasonable suspicion they are proceeds of crime.

This would typically follow from a structured legal process including reporting, investigation, and potentially judicial proceedings where evidence supports the suspicion of money laundering or related criminal activities.

It said while it is imperative to dismantle the barriers that secrecy laws may create in the fight against financial crimes, it is equally crucial to uphold the fundamental legal principle of attorney-client privilege.

The preservation of this privilege ensures that while legal practitioners may be required to disclose certain information, the core elements of their advisory role remain protected, which is vital for maintaining trust between clients and their lawyers.

The attorney-client privilege is a fundamental principle that underpins the right to legal representation and the fairness of criminal proceedings, the court said.

It said the police investigators had no legal basis for requiring Advocate Setlojoane to hand over his client’s funds paid as fees.

To compel him to become an accomplice against his own client by disclosing privileged communications or assisting in the prosecution of that client would strike at the very heart of the faithful discharge of a lawyer’s ethical duties, the court found.

It said even if he were to ultimately fail on the merits before the High Court on remittal, his pursuit of the appeal has undoubtedly served the public interest by elucidating the scope and application of the lawyer-client privilege within our legal system.

Staff Reporter

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Judge grills prisons boss

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THE chairman of a commission of enquiry investigating the escape of prisoners in Maseru last year has issued a damning assessment of the Lesotho Correctional Service (LCS) boss’ leadership skills.

Justice Realeboha Mathaba grilled Mating Nkakala over the lack of a strategic plan for the LCS.

He said the Lesotho Correctional Service Act mandates the commissioner to draft policies for the organisation.

Nkakala responded by saying they were on the verge of engaging a consultant to help draw up strategies for the LCS.

“Normally consultants do not do everything, they just facilitate, meaning you have to have a vision as a leader,” Justice Mathaba said.

He also asked Nkakala about how long the institution has been operating without a clear strategic plan and policies and he answered saying the last time it was done was in 2010.

“Meaning for the past 14 years the institution has been operating without any direction,” Justice Mathaba said.

Nkakala admitted that it has been 14 years without a strategic plan.

Justice Mathaba again asked Nkakala if he had received any training before getting into high office.

“Not only you but other officers who help you. Did you get any training?”

Nkakala said their wish is for every officer to get training and attend workshops on their promotion to the next rank.

“But, due to budget constraints, we cannot get such training,” Nkakala said.

Justice Mathaba said most of the problems that Nkakala had mentioned show that there is lack of leadership and teamwork.

“It is evident that there is no teamwork between you and your senior officers,” he said.

Nkakala also conceded that there are divisions among the staff with some supporting him while others do not.

He said there are some officers who work well with him, “even though it is not everyone who supports me”.

Justice Mathaba said Nkakala should have been equipped with the necessary skills to lead the institution.

“I am still on the issue of how capacitated you are in leading the institution,” he said.

He said Nkakala is still leading the institution by using the assistant commissioner’s tactics and principles as he never received any training after being promoted.

“Did you get any training that equipped you with the leadership skills while still an assistant commissioner?”

Nkakala said he recalled attending a course.

Justice Mathaba then said based on Nkakala’s evidence, he sees that there is no teamwork at the institution’s leadership.

Nkheli Liphoto

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