High Court Judge Thamsanqa Nomngcongo has reserved judgement to Monday in murder-accused former First Lady 'Maesaiah Thabane's bail application.
This after hearing lengthy arguments from the lawyers representing both the ex-first lady and a litany of several other respondents, including close relatives, opposing her bail application. The ex-first lady's lawyer, Advocate Salemane Phafane, argued that 'Maesaiah should be granted bail because she was "so harmless that she cannot even hurt a fly".
But the view is not shared by several other respondents, who portray 'Maesaiah as a serial criminal.
The respondents are the Director of Public Prosecutions (DPP) Adv Hlalefang Motinyane, former Prime Minister Thomas Thabane's grandson Thomas Thabane Jr and Thato Sibolla. Adv Motinyane was represented by Adv Cristopher Lephuthing while Thabane Jr and Ms Sibolla were represented by Mr Monaheng Rasekoai.
'Maesaiah has been in custody since 3 June 2020 after the Court of Appeal revoked her bail over the 14 June 2017 killing of Lipolelo Thabane.
Justice Nomngcongo heard arguments from both sides from Tuesday until yesterday evening.
Adv Phafane was the first to argue his client 'Maesaiah's case. He denied the respondents' allegations that she was a dangerous killer who should be denied bail.
He attempted to poke holes into damning affidavits submitted this week by the former premier's daughter Adv 'Mabatṧoeneng Hlaele, Ms Sibolla and 'Maesaiah's former employee, Makarabo Mojakhomo opposing the bail application. The trio have forcefully argued that 'Maesaiah is a dangerous woman who should not be granted bail because she could organise their assassinations and those of anyone else who could testify against her.
"The petitioner (Ms 'Maesaiah) is so harmless that she cannot even hurt a fly as even after knowing from as far as 2018 that she was a suspect in the said killing of Ms Lipolelo, she never attempted to kill or harm the witnesses as alleged by the interveners (Ms Sibolla and Thabane Jr)," Adv Phafane argued.
"Why would she interfere with the witnesses now? Why didn't she kill witnesses back then? All the interveners present is hearsay evidence that they were told by so-and-so that the petitioner is dangerous. (State witness) Sarele (Sello) says he is an accomplice (in the Lipolelo murder). He is guilty as sin. His evidence should be treated with a lot of caution. He claims to have been present when the Lipolelo killing was masterminded. Conveniently now, he tells us that the petitioner ('Maesaiah) in 2012 asked him to go kill her then husband (Joachim Ferreira) and this allegation has nothing to do with this case. It is inadmissible. He (Sello) never reported this to the police and does not explain why.
"Mojakhomo steals a lot of money from the petitioner, about M200 000. She escaped from lawful custody which she covers up and the theft to claim that she was kidnapped. It is simply nonsensical. How would police arrest her in daylight and then kidnap her from their own station? She is a self-confessed thief who no longer fears the police but the petitioner ('Maesaiah). She only resurfaces when there is a bail petition by her previous employer.
"Sibolla has been here residing in Khubetsoana and was never harmed by a fly even when the petitioner knew from as far as back as 2018 that she was a suspect. She stages a flight when she thinks there is a possibility that the petitioner may be denied bail.
"There is another affidavit of a learned colleague, Adv Hlaele, who happens to be the daughter of the former prime minister. It deals with family differences between her and the petitioner which can be solved over at family gatherings.
"We do not have direct evidence that the petitioner directly threatened them. They were all told by someone who was told by someone. If they perceived those as threats, why didn't they report to the police?" Adv Phafane argued.
Adv Phafane further argued that 'Maesaiah was not a flight risk in that she surrendered to the police even when she had the opportunity to flee.
He said even after her bail was revoked by the Court of Appeal in her absence on 29 May 2020, she chose to return from South Africa and surrender herself to the police for incarceration.
"She came back with her very sick husband and instead of spending time with him, she reported to the police in order to be jailed so she could make a fresh bail application," Adv Phafane argued.
On his part, Mr Rasekoai denied Adv Phafane's claims that 'Maesaiah was harmless. He said Adv Hlaele had clearly stated in her affidavit that she had witnessed her step mother, 'Maesaiah, harassing senior government officials on several occasions. He also stated that Ms Sibolla had heard 'Maesaiah threatening Lipolelo with death on several occasions on the phone before she was eventually murdered.
"It is submitted that the petitioner is 'so harmless she cannot even hurt a fly'. I wish I could call ministers and senior government officials to testify against that submission. Adv Hlaele categorically states that she has witnessed the petitioner 'speaking to the governor of Central Bank and several principal secretaries in the most condescending and disrespectful manner'. Adv Hlaele states that the petitioner had so much power and influence which she exerted with impunity and she is the primary cause of the collapse of Mr Thabane's government.
"Sibolla says 'the petitioner would call the deceased in my presence hurling derogatory and vile language at her and threatening her with all forms of physical assaults. 'At some point the deceased (Lipolelo) allowed me to listen to an audio message where the petitioner ('Maesaiah) was threatening the deceased with death. This audio is still in the deceased's phone,' Sibolla says. It is clear that the petitioner's motive was to usurp the powers and privileges of being the first lady which was rightful position of the deceased.
"There is evidence from the second in command of the police (Deputy Police Commissioner Paseka Mokete) who says the petitioner is associated with dangerous Famo gangs. She has the propensity to not only kill flies but human beings as well. How can people based in different places be common on one thing, the brutality of the petitioner? They could not have gone too far in fabricating a story about her. For what? What more evidence do we need beyond these?" Mr Rasekoai argued.
Mr Rasekoai further submitted that 'Maesaiah was a flight risk as she had accumulated a lot of wealth to pay for her flight. He said she could easily flee abroad even during this period of Covid-19 because she has a diplomatic passport by virtue of being a former first lady.
"Furthermore, rather than using her own medical records to plead for bail, she uses an 82-year-old respected statesman (Mr Thabane) to get liberty by embarrassing him by disclosing his medical condition. The entire bail petition is premised on the medical condition of the old man."
On behalf of DPP Motinyane, Adv Lephuthing denied Adv Phafane's claims that 'Maesaiah had voluntarily returned to the country and surrendered herself to the police. He said DCP Mokete had submitted in his affidavit that 'Maesaiah was pressured by the South African government to return after fleeing to that country in January 2020 because it could not harbour a fugitive from justice.
He further argued that 'Maesaiah should not be given bail due to the seriousness of the allegations against her.
"There is no chance that a person facing capital punishment can hope for bail, especially after such revelations contained in the respondents' affidavits. She is also facing a charge of conspiracy to murder the deceased. The evidence of Sarele Sello is relevant in that he knew the petitioner from as early as 2006 and how she is capable of removing whoever came in her way of becoming the first lady.
"We cannot downplay the ability of someone who hires assassins. We pray that she awaits trial while still in custody. Some witnesses have fled to South Africa in fear of their lives," Adv Lephuthing argued.
After hearing all the arguments yesterday evening, Justice Nomngcongo reserved judgement to Monday.