A BEREA prosecutor, Lefu Penane, who faces criminal charges of soliciting a M1500 bribe, is challenging the decision by the Director of Public Prosecutions (DPP), Hlalefang Motinyane, to try him before the High Court. He would rather be tried at the magistrates' court which he argues has the power to hear "minor" cases like his.
Penane, a district public prosecutor in Berea, has therefore petitioned the High Court asking it to decline jurisdiction over his case.
According to the indictment before the High Court, Penane allegedly solicited a M1500 bribe from Seqao Sehloho on 13 February 2024. Sehloho, who was facing sexual assault charges, had been remanded into the Lesotho Correctional Service (LCS) custody.
While Sehloho was still in remand custody on 12 February 2024, Penane reportedly went to LCS and requested Sehloho's release, claiming they were due to appear in court. On their way, Penane allegedly demanded a M1500 bribe from Sehloho to secure his bail. An agreement was made, and Penane arranged for Sehloho's release on M700 bail, without informing the investigating officer or the complainant.
Penane, 54, of Khubetsoana, is also accused of demanding an additional M6000 to make Sehloho's case "disappear," although he asked for the M1500 to be settled first. The two agreed to meet at the Berea Magistrates Court on 13 February 2024.
However, Sehloho reported the incident to the police, who initiated a sting operation. Marked banknotes were given to Sehloho to pay Penane, who was arrested immediately after accepting the bribe. He was subsequently brought before the Berea Magistrates Court and charged on 16 February 2024.
Penane claims that his case was initially scheduled for trial in the Berea Magistrates Court from 8 to 12 July 2024. However, it was postponed to 3 to 5 December 2024. Penane asserts that on 3 December, the Crown failed to appear, leading to further delays, including postponements to 9 December, 12 December, 20 December, and eventually 17 January 2025.
Penane said he was "shocked" upon receiving a notice on 17 January 2025, informing him that his trial would now proceed before the High Court.
He petitioned the High Court last week, challenging the DPP's decision to try him at the High Court, arguing that the Magistrates Court has jurisdiction over his case.
The DPP Motinyane and Attorney General Rapelang Motsieloa KC are the two respondents in the matter.
"I have been advised, and I firmly believe the advice to be true, that the Office of the DPP is established under section 99 of the Constitution... She (the DPP) has the power to initiate and undertake criminal proceedings before any court regarding any offence committed by any person," Penane states in his affidavit.
"Before invoking section 144 of the Criminal Procedure and Evidence Act, the DPP must establish that I am interfering with or intimidating witnesses, that it is in the state's interest, or in the public interest. The matter has been postponed several times, with the Crown acting in accordance with the DPP's instructions. Then, just minutes before the trial on 17 January 2025, my counsel was served with the indictment. The DPP's exercise of prosecutorial power is not without limitations.
"I assert that the DPP's decision to indict me in this manner is irrational, unreasonable, and irregular, with far-reaching consequences for me, especially considering that no jurisdictional facts justify this indictment."
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Penane contends that his experience in prosecuting similar cases indicates that such cases are typically handled by the magistrates court.
"The Magistrates Court has the necessary jurisdiction to try cases of this nature. The High Court should not, as a matter of course, hear minor cases like mine that are ordinarily tried before the Magistrates Court. I maintain that the DPP's decision to indict me is an abuse of power."
As a long-time prosecutor, Penane asserts that similar cases of fraud and corruption involving large sums of money are being handled in the Maseru Magistrates Court.
"It appears that there is a selective application of discretion by the DPP, as similarly situated individuals are being tried in the Subordinate Courts. The DPP's actions violate the principles of equality before the law and fair trial as enshrined in the Constitution of Lesotho."
