Lesotho: High Profile Trials in Limbo

Top prosecutor Shaun Abrahams (file photo).
15 September 2021

Top prosecutor Shaun Abrahams has resigned over lack of pay.

His resignation puts the high-profile trials he has been prosecuting in serious limbo. Advocate (Adv) Abrahams, who is South Africa's former Director of Public Prosecutions (DPP), had already done a lot of work on the cases including interviewing multitude of witnesses and aligning their testimonies with the law.

Director of Public Prosecutions (DPP), Hlalefang Motinyane, has since pleaded with the High Court to give her until Monday to convince Adv Abrahams not to quit.

Adv Abrahams this week told the High Court he was withdrawing from all the five high profile cases that he had been handling over what he called "administrative and professional differences" with his client, the government of Lesotho.

Highly placed sources told the Lesotho Times Adv Abrahams decided to dump the cases over the government's failure to pay for his services.

"When the government engaged Abrahams in 2018, they negotiated to pay him M25 000 per appearance," a source said this week.

"He agreed to the figure although he normally charges more. He agreed because he was engaged for several trials which would run for a long time.

"However, the government is now divided over keeping him hence he has not been paid for some time. He has been engaging the office of the DPP to facilitate his payment but to no luck until now that he decided to resign."

Although it could not be established how much he is owed by the government and for how long he has not been paid, his resignation is with effect from 1 September 2021.

Adv Abrahams refused to elaborate on his reasons for quitting, when approached for comment, citing professional reasons.

Adv Abrahams's resignation leaves the high profile cases in limbo. DPP Motinyane conceded in the High Court she could not afford to lose him as he was better placed to continue with the trials because of his better understanding of them. Adv Abrahams has been working on the trials for a while now.

Ms Motinyane begged Justice Charles Hungwe to allow her to negotiate with Adv Abrahams to stay. This after Adv Abrahams had told the judge he was withdrawing from prosecuting a case the court was about to hear.

Justice Hungwe was on Monday about to hear the murder trial of four police officers accused of murdering their colleague, Police Constable Mokalekale Khetheng, in March 2016, when Adv Abrahams dropped his bombshell.

The accused in the matter are Senior Superintendent Thabo Tsukulu, Senior Inspector Mothibeli Mofolo, Inspector Mabitle Matona and Sub-Inspector Haleokoe Taasoane.

The trial was scheduled to take off at 9:30am and the defence lawyers arrived ready to proceed.

Adv Abrahams arrived in the company of DPP Motinyane but strikingly, he was not his usual bubbly self. Neither did he joke around with the media personnel covering the case as he routinely does. He just greeted the journalists and quickly walked past with the DPP in tow a few paces behind.

Both the defence and prosecution teams proceeded to Justice Hungwe's chambers and upon their return, they announced that the matter would proceed at 2:30pm the same day.

It was then that Adv Abrahams announced his withdrawal application before Justice Hungwe.

"I attest hereto solely in application to this court to withdraw as crown counsel in CRI/T/0002/2018, CRI/T/0004/2018 and CRI/T/0010/2018 with immediate effect," Adv Abrahams said.

"Over the last year, the DPP and I have attempted to resolve the administrative and professional differences which have remained unresolved despite numerous attempts at finding an amicable resolution thereto. This resulted in me writing to the DPP on 18 August 2021, giving timeous notice of my intention to withdraw as crown counsel in all matters on brief, with immediate effect on 1 September 2021."

Adv Abrahams said he had filed his withdrawal application with the High Court on 2 September 2021.

But he also sought the court's indulgence for filing it late. According to Superior Court Practice Directive No.4 of 2021, he should have filed 14 days before his actual withdrawal to enable his clients enough time to find alternative representation. He then sought condonation from Justice Hungwe.

"At the time of filing the aforementioned notice of withdrawal, I was not aware of the Superior Court Practice Directive No.4 of 2021. Had I known, I most certainly would have filed an application for my withdrawal as crown counsel in compliance with the provisions of the Superior Courts Practice Directive.

"Notwithstanding, I respectfully submit that I had taken the requisite measure to timeously provide notice to the DPP of my intention to withdraw with immediate effect on 1 September 2021. I further respectfully submit that I have at all times demonstrated the requisite good faith in these matters to this court.

"For professional reasons, I can as a result in good conscience, no longer proceed with the brief as lead crown counsel in CRI/T/0002/2018, CRI/T/0004/2018 and CRI/T/0010/2018. It is consequently prayed that this court grants the relief as prayed and condoning the late filing hereof in non-compliance with the provisions of section 4(a) of the Superior Courts Practice Directive N0.4 of 2021," Adv Abrahams said.

CRI/T/0002/2018 is the case in which former army commander, Tlali Kamoli, is accused alongside Major Pitoso Ramoepane, Captain Litekanyo Nyakane, Sergeant Malefane Heqoa and Corporal Mohlalefi Seitlheko for the simultaneous bombings of the houses of former First Lady 'Maesaiah Thabane and former Commissioner of Police Khothatso Tsooana on 27 January 2014.

In CRI/T/0004/2018, Lieutenant General Kamoli is accused -- alongside Captain Nyakane, Captain Haleo Makara, Sergeant Lekhooa Moepi, Sergeant Motsamai Fako, Corporal Marasi 'Moleli, Corporal Motšoane Machai, Corporal Mohlalefi Seitlheko, and Corporal Tšitso Ramoholi - of the murder of former army commander, LT-Gen Maaparankoe Mahao on 25 June 2015. The trial is scheduled to proceed from next Monday until 25 September 2021. However, it is now in severe limbo because of Adv Abrahams' withdrawal.

CRI/T/0010/2018 is the aforementioned trial of the four police officers accused of murdering PC Khetheng.

Justice Hungwe is presiding over these three matters, hence the withdrawal application was moved before him.

Justice Hungwe granted Adv Abrahams's application for withdrawal and condonation for late filing on the grounds that he had given DPP Motinyane enough time.

DPP Motinyane then asked for the judge's indulgence to convince Adv Abrahams to stay. She promised that by Monday she will have a clear answer for the court while also vowing that Lt-Gen Mahao's murder case will proceed the same day with or without Adv Abrahams.

"I confirm that we had prior deliberations with Adv Abrahams over issues which led to this sad reality that he has to withdraw from matters I had briefed him on. I am aware of the precious time of the court which is going to be lost. Justice delayed is justice denied, and this is unfair on the accused. The blame is going to be placed on the door of my office.

"I however intend to make things right. I had deliberations with Adv Abrahams and all the parties concerned to resolve this issue. My commitment to this court is to resolve this matter promptly so that we can be able to proceed with him as lead counsel. My Lord, it would be highly regrettable to lose him as lead counsel because we have a lot of witnesses in these cases whom he had already interviewed... We have also had so many interlocutory applications which he has handled. My belief is that by end of this week, the matter will be resolved so we can be able to proceed with the matter set for Monday.

"However, if that is not the case, my office will be left with no choice but to proceed with the cases without Adv Abrahams. May these matters be postponed to Monday next week," DPP Motinyane prayed.

Justice Hungwe then postponed the trials of the four police officers and the attempted murder trial involving the bombings of 'Maesiah and Mr Tsooana's houses by the five soldiers to 13 September 2021 to allow time to resolve the Abrahams matter. The murder trial of Lt-Gen Kamoli and eight other soldiers accused of murdering Lt-Gen Mahao is nonetheless set down to proceed the same day regardless of Advocate Abrahams position.

While he withdrew from the three cases being handled by Judge Hungwe. Adv Abrahams is also prosecuting other two matters before Chief Justice Sakoane Sakoane and Justice Moroke Mokhesi.

Justice Sakoane is presiding over the treason and murder trial of politicians Mothetjoa Metsing and Selibe Mochoboroane over their alleged involvement in the 30 August 2014 attempted coup against the first government of Thomas Thabane. They are accused alongside Lt-Gen Kamoli, Captain Nyakane and Lance Corporals Leutsoa Motsieloa and Motloheloa Ntsane.

Justice Mokhesi is presiding over the murder trial of Brigadier Rapele Mphaki, Major Pitso Ramoepane, Sergeant Lekhooa Moepi, Captain Mahlehle Moeletsi, Lance Corporal Mahlomola Makhoali, Private Nthatakane Motanyane, Motšoane Machai, Tieho Tikiso, Liphapang Sefako and Nemase Faso.

The 10 soldiers allegedly strangled Lekhoele Noko, Molise Pakela and Khothatso Makibinyane at Setibing in Maseru on 16 May 2017 and dumped their bodies in the Mohale Dam.

They allegedly kidnapped and murdered the three men after the trio had just been released from police custody after their detention over a shooting incident at the Maseru border gate on 13 May 2017.

These two matters are also in limbo if DPP Motinyane fails to retain Adv Abraham who had already done a lot of work towards their prosecution. It is not easy to chop and change prosecutors as cases proceed. The DPP's local prosecutors are not - in any event - known for retaining any convictions, one reason crime has spiralled out of control.

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