Lesotho: Judge Tears Into 'Hearsay' State Case Against Thabane and Wife

Former first lady Maesaiah Thabane (file photo).

MURDER-ACCUSED former First Lady 'Maesaiah Thabane has been released on M10 000 bail by High Court Judge Thamsanqa Nomngcongo in a hard-hitting judgement which pokes holes into the case against her and former Prime Minister Thomas Thabane.

In granting bail, Justice Nomngcongo ruled that the Director of Public Prosecutions, (DPP) Advocate Hlalefang Motinyane, had failed to exercise her constitutional right to oppose the bail. He said the Deputy Commissioner of Police (DCP), Paseka Mokete, who deposited an application on behalf of DPP Motinyane, had no right to do so.

In a potentially huge setback to the state case, Justice Nomngcongo also said DCP Mokete's and other witnesses' affidavits were full of hearsay. He said they did not provide any substantive evidence linking 'Maesaiah and her husband Mr Thabane to the 14 June 2017 murder of the latter's ex-wife, Lipolelo.

'Maesaiah was sent to remand prison on 3 June 2020 after the Court of Appeal revoked her bail over the Lipolelo murder. She has also been charged with the attempted murder of Thato Sibolla, who was travelling with Lipolelo on the night she was gunned down. Ms Sibolla escaped with gunshot wounds and is one of the witnesses whose affidavits against 'Maesaiah's bail application was dismissed by Justice Nomngcongo.

Mr Thabane has been slapped with the same charges but he is yet to be arrested and formally charged after his ouster as prime minister. He had earlier won a referral to the Constitutional Court for determination of whether or not he can be charged as a sitting PM.

Justice Nomngcongo seized upon the police's failure to arrest and charge him as an indication that they have no solid case against him and his name had been "dropped (into the case) just for drama".

'Maesaiah was initially granted bail by Acting Chief Justice 'Maseforo Mahase on 5 February 2020 but this was revoked by the Court of Appeal on 29 May 2020 after Ms Sibolla and Mr Thabane's grandson, Thomas Thabane Jr argued that it was unprocedurally granted.

She launched a fresh application after she was jailed following the revocation of her bail.

In granting her bail on Monday, Justice Nomngcongo said the DPP had failed to oppose the bail on two occasions. He said 'Maesaiah had sought bail on the two charges of murder and attempted murder. The court did not consider the new 'conspiracy to murder' charge she was slapped with this month.

He said in applying for bail, 'Maesaiah had "reacted swiftly... on the understanding of the charges put to her" after she was incarcerated.

"There was no common purpose or conspiracy to murder but simply murder and attempted murder charges," Justice Nomngcongo said.

"The matter went before Acting Chief Justice (on 5 February 2020) who, without opposition from the prosecuting authority, granted bail. That application which was sought before Justice Mahase was not opposed, and I repeat, was not opposed by the DPP and that is the record of the appeal court when the matter was taken for review.

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"It went on review because there were interested parties dissatisfied with the decision to grant bail without opposition from the DPP. When the matter went on review, the DPP opposed those who were seeking rescission of the acting chief justice's decision. In other words, the DPP said, 'Chief Justice you were correct to grant the petitioner bail so I oppose the interveners who say you should not have granted the petitioner bail'.

"She (DPP Motinyane) was in agreement that the petitioner was rightly granted bail. It will be observed that before the acting chief justice, the DPP did not oppose bail and it was granted. She had an opportunity then to say 'I do not want bail to be granted' but she agreed to the bail being granted. When those (Ms Sibolla and others) sought to intervene she (DPP) said 'it was uncalled for'.

"The question that now arises is when did the DPP turn around and say 'I now oppose bail'? ... On two occasions she had the opportunity to oppose bail but did not... When did the opposition come? Did it come after the decision of Court of Appeal? The office of the DPP is an important office vested with extremely important authority to initiate prosecution in terms of Section 99 (of the constitution) and it is that office alone vested with such powers it cannot be delegated to anyone... "

Justice Nomngcongo said DCP Mokete had no legal authority to institute proceedings on behalf of the DPP. He said in any case DCP Mokete's affidavit was filled with hearsay allegations. He also said Ms Sibolla had failed to link 'Maesaiah to the crime.

"In these proceedings we have an affidavit of one Deputy Commissioner of Police, Paseka Mokete. He was opposed to bail being granted while at the same time the DPP held other views. There was such acrimony as to whether bail should be granted or not. In one of her affidavits, the DPP says that the matter had to be settled by negotiation between herself and DCP Mokete.

"DCP Mokete has no business deciding whether or not to prosecute anyone. It is solely the responsibility of the DPP. It does seem, in this matter, that the responsibility was not taken seriously by the DPP. She left it in the hands of DCP Mokete who says that he opposed bail. So, it was not the decision of the DPP to oppose bail.

"What we hear here are the depositions of Mokete. There are allegations that the petitioner ('Maesaiah) is prone to violence. It is said that she attacked somebody in some medical institution but mind you that somebody has not sworn to any affidavit.

"Other people who say that we must not release the applicant on bail include Thato Sibolla who was a victim when the crimes were allegedly perpetrated. She is unable to point to anyone who actually perpetrated these crimes upon her or the deceased. She is unable to say what happened there. She says all she knows about this is that the petitioner and Lipolelo were not on good terms.

"DCP Mokete says she ('Maesaiah) paid certain sums of money to certain assassins and who these assassins are, we don't know. He talks about six suspects. There is one suspect he is fond of referring to and that is the former prime minister (Mr Thabane). I think his name is dropped in just for drama because if he were a suspect, Mokete would have arrested him because the immunity that Mokete says he (Mr Thabane) claimed has long perished with his resignation and there is no such immunity. He is not being prosecuted before us and there are all these named suspects that Mokete says will be or might be extradited. When that will happen, no one knows.

"We have a lot of hearsay evidence brought before us by Mokete. There is nothing tangible brought before me to say that I should not grant the petitioner bail. The opposition is based on emotions. The petitioner is said to have approached a crown witness to assist her to murder her former husband (Joachim Ferreira) in order to enter into marriage with the second suspect Thomas Thabane. This crown witness is not named. Because it is alleged that she wanted to murder the former husband, then it means she murdered the deceased. That is not the reasoning with which we approach these matters.

"It is also said that not only did the petitioner have the ability to pay assassins to kill people but she also paid people not to divulge her involvement in the heinous crime. This is emotional language. Who has convicted the petitioner of these so-called heinous crimes? What evidence do we have of anything heinous here? There is no evidence that she even pulled the trigger and killed this person but people bravely say that she shot and killed Lipolelo. You do not make a wild statement like that without presenting the facts."

Justice Nomngcongo then ruled he did not find any reason not to grant 'Maesaiah bail because when she was initially granted bail, she obeyed all her bail conditions including attending remands.

"The petitioner was granted bail and she was free for four months. She attended remands. Did she, in those four months, commit any heinous crimes? No. Did she escape this jurisdiction or try to run away? No. When the matter was taken for review at the Court of Appeal, she was still within this jurisdiction but had just gone out for medical purposes to South Africa. She promptly returned and handed herself to the police. She did not run or threaten the witnesses for four months. Why would she do that now?"

"The petitioner has asked me to release her on bail on certain conditions and nothing has been said really against those conditions. I accordingly grant her bail on those conditions which are that she pays a deposit of M10 000, reports to the police every fortnight and notifies police whenever she travels beyond the borders of Lesotho. She should not interfere with crown witnesses and she must attend remands and stand trial to finality," Justice Nomngcongo ruled.

More From: Lesotho Times

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