The Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, has been accused of unreasonably siding with murder-accused former First Lady 'Maesaiah Thabane in a controversial process in which she was "irregularly" granted bail.
The accusation against the DPP was made by Monaheng Rasekoai, the lawyer for former Prime Minister Thomas Thabane's relatives, who are appealing a controversial decision to grant his wife, Mrs Thabane, bail after she appeared in court in February for murder.
The DPP told the Court of Appeal yesterday that there were no irregularities in the manner the bail proceedings had been handled on 5 February 2020. She had been properly granted an opportunity to oppose the former First Lady's 5 February 2020 bail application by Acting Chief Justice 'Maseforo Mahase.
It had been widely alleged that Justice Mahase did not afford the DPP an opportunity to oppose bail, resulting in her releasing 'Maesaiah unprocedurally. But the DPP said that was incorrect. The bail proceedings had been done properly by the acting chief justice and bail had been granted on the merits.
The Court of Appeal bench made up of Justices Petrus Damaseb from Namibia (presiding), Moses Chinhengo (Zimbabwe) and Van Der Westheisn (South Africa), heard the appeal yesterday and reserved judgment to 29 May 2020.
Maesaiah stands accused of the 14 June 2017 murder of former prime Mr Thabane's former wife, Lipolelo. She has also been charged with the attempted murder of Thato Sibolla, who was travelling in the same vehicle with Lipolelo, when she was gunned down in cold blood at Ha-'Masana, Maseru. Ms Sibolla sustained some injuries in the incident which occurred just two days before Mr Thabane's inauguration for his second stint as premier.
Shortly after she was charged and remanded in custody by Maseru Magistrate Nthabiseng Moopisa on 5 February 2020, Ms Thabane was granted bail by Justice Mahase, under controversial circumstances.
Mr Thabane's grandson, Thomas Thabane Jr and the ex-premier's nephews Khauhelo Molapo, Thuto Makhooane and Ms Sibolla herself then teamed up to file an appeal in the Court of Appeal for an order to set aside Justice Mahase's decision to grant 'Maesaiah bail. They argue that the bail should never have been granted.
Justice Mahase, Ms Thabane, the DPP, the Attorney General and the Commissioner of Police are the first to fifth respondents respectively in the apex court application.
Ms Thabane is represented by Advocates Dumisa Ntsebeza and Rethabile Setlojoane while the DPP was represented by Adv Lepeli Molapo. The applicants are sided by Attorneys Kuili Ndebele and Monaheng Rasekoai as well as Adv Christopher Lephuthing.
The applicants, through attorney Rasekoai, argued that the office of the DPP was hardly granted an opportunity to oppose Ms Thabane's bail on 5 February by Justice Mahase. The DPP should therefore have conceded that she had been unable to file opposing papers against the bail decision.
The bail process had been littered with discrepancies; Mr Rasekoai argued. The bail application had only been served at the DPP's office at 2:05pm yet it was slated to be heard at 2:30pm. It was not possible for the DPP to have prepared an adequate response during that short period.
Ms Thabane had also filed an unsigned "fake" affidavit in the bail application which the court should also have rejected.
Payment of the bail deposit was only done the following day yet 'Maesaiah had already been released. Because the bail petition was neither signed by the petitioner nor counsel on record it effectively, means there was no bail petition before the court a quo (previous court), said Mr Rasekoai.
The most important irregularity is that the police, who had wanted bail opposed, were denied the opportunity to oppose it through the DPP. "The speed and haste in which the proceedings were done deterred the respondents (police) an opportunity to respond," he argued. The DPP's office, which had not been given adequate time to respond, was being unhelpful.
The police's legal advisor, Mamello Ntsane, had claimed the police were given a raw deal in the entire bail application. Moreover, the bail proceedings had been conducted "behind closed doors" instead of being done in an open court, Mr Rasekoai said.
However, Adv Molapo said the DPP's office had been granted the opportunity to present its case. Justice Mahase had thus not erred in that regard. Adv Molapo instead blamed police investigators for only instructing the DPP to oppose bail on the grounds that Ms Thabane was a flight risk without putting other considerations into account such as her potential to interfere with witnesses. Such other considerations could probably have influenced the court otherwise. That had not been done. He said the prerogative to oppose bail also solely lay in the office of the DPP and not the applicants (Thabane's relatives) in this case.
"When bail was petitioned, the Crown counsel was accompanied by Adv Ntsane to apply for postponement in order to create time to file answering affidavits. The postponement was declined on grounds that the petitioner (Ms Thabane) had to seek medical attention in South Africa. Submissions were then made and the Crown pursued the issue of the petitioner being a flight risk because the police had instructed that way. The DPP gets instructions from police and the issues of interference with suspects was never canvassed.
"The crown is satisfied with the submissions it made before court as it was given the opportunity to address the court and oppose the bail. There was no irregularity on the part of the acting chief justice. Bail was not rushed as it was given a set down and was dealt with on an urgent basis.
Adv Molapo then accused the applicants of undermining the DPP and insisted they had no grounds to approach the Court of Appeal.
Adv Ntsebeza concurred with Adv Molapo saying Justice Mahase made no error as she had afforded both sides an opportunity to be heard.
"Justice Mahase conducted an inquiry on whether she should release the accused on (Ms Thabane) as she wanted to travel to South Africa for medical reasons... Both parties (in the litigation) went outside to consult and they reached a consensus that the accused be granted bail. The question of being a flight risk was mitigated by the fact that she had handed herself over to the police and had to attend medical check-up in South Africa. The court could still have denied bail but crown counsel confirmed they had reached an agreement of her being granted bail.
"A bail application is not a trial therefore prosecution is not mandated to close every loophole. Opposing or conceding a bail application is the function of the prosecutor. Even though the law allows private prosecution, bail remains the discretion of the DPP. The applicants are challenging the discretion of the learned judge (Justice Mahase) and want it to be substituted with their own version," Adv Ntsebeza submitted.
But Mr Rasekoai disagreed saying the DPP should have admitted her office bungled. By not conceding that point, the DPP had effectively "jumped into bed with the accused (the former First Lady)" to facilitate her irregular release on bail.
Justice Damaseb reserved judgement to 29 May 2020 but also said they would ask for an extension if need be.