Army de­fends sol­die sol­diers’ de­ten de­ten­tion

Lesotho Times - - Front Page - Tefo Tefo

LE­SOTHO Defence Force (LDF) Deputy Com­man­der Ma­jor-gen­eral Khoan­tle Motšo­motšo says army com­man­der Lieu­tenant-gen­eral Tlali Kamoli is not in con­tempt of court for not re­leas­ing 22 sol­diers de­tained at Maseru Max­i­mum Se­cu­rity Pri­son.

The sol­diers filed an ap­pli­ca­tion be­fore the High Court on Fri­day last week pray­ing for Lt-gen Kamoli to be held in con­tempt of a court or­der which set them free on 5 Oc­to­ber 2015.

In her rul­ing, Jus­tice Molefi Makara had set aside the de­ci­sion to de­tain the sol­diers af­ter rul­ing the im­pris­on­ment was un­law­ful.

The 22 de­tainees are fac­ing mutiny charges be­fore a Court Mar­tial, and were ar­rested be­tween May and June this year.

How­ever, af­ter Jus­tice Makara ruled their de­ten­tion was il­le­gal, the LDF did not re­lease them as ex­pected, prompt­ing the law­suit.

But in his an­swer­ing af­fi­davit filed in the High Court yes­ter­day, Maj-gen Motšo­motšo de­nied the con­tempt charge.

“I wish to in­di­cate that there is no or­der of the court dated 5 Oc­to­ber 2015 which has been vi­o­lated by the com­man­der of the LDF.

“I aver that the com­man­der of the LDF is not aware of any court or­der which or­ders him to do a spe­cific act or re­frain from do­ing any­thing against the ap­pli­cants.

“I have heard that this honourable court granted judg­ment on 5 Oc­to­ber 2015.

“I have also been ad­vised that a copy of this judg­ment was only made avail­able to the re­spon­dents’ le­gal rep­re­sen­ta­tives on 9 Oc­to­ber 2015,” he stated.

The re­spon­dents he was re­fer­ring to are Lt-gen Kamoli, Court Mar­tial Pres­i­dent Ma­jor-gen­eral Mo­jalefa Let­soela, Court Mar­tial Pros­e­cu­tor Ad­vo­cate Roland Suhr and At­tor­ney Gen­eral King’s Coun­sel Tšokolo Makhethe.

Maj-gen Motšo­motšo reaps that the court dis­missed all the prayers sought by the sol­diers save for the one declar­ing keep­ing them in de­ten­tion was ir­reg­u­lar. He how­ever, also noted the court was not clear what should hap­pen re­gard­ing this prayer.

“I wish to in­di­cate that the ap­proach of the ap­pli­cants that the com­man­der of the LDF is guilty of con­tempt of court con­cern­ing this prayer is with­out merit.

“This prayer, in it­self, does not oblige the com­man­der to do a pos­i­tive thing or re­frain from do­ing a spe­cific act.

“It fol­lows, there­fore, that upon grant­ing this or­der, there ought to have been a con­se­quen­tial or­der which di­rected the com­man­der to do a spe­cific act or re­frain from do­ing a cer­tain thing.

“If the court had wanted to or­der the re­lease of the ap­pli­cants from close ar­rest, it could have granted Prayer 19, pos­si­bly with some con­di­tions,” he noted in the af­fi­davit.

Un­der Prayer 19, the sol­diers wanted the

LDF Deputy Com­man­der Ma­jor-gen­eral Khoan­tle Motšo­motšo court to di­rect the LDF com­man­der to set them free un­con­di­tion­ally.

Maj-gen Motšo­motšo also says re­mand war­rants given to the sol­diers at the Court Mar­tial to reg­u­larise their con­tin­ued de­ten­tion should only be chal­lenged be­fore the mil­i­tary court and not the High Court.

“I wish to in­form this honourable court that the re­mand war­rant is part and par­cel of the Court Mar­tial process, and which can only be chal­lenged be­fore that court and that court alone.

“It fol­lows that for as long as Court Mar­tial pro­cesses are in progress, the ap­pli­cants are free to make ap­pli­ca­tions be­fore that court deal­ing with cer­tain as­pects they are not sat­is­fied with.”

He again ar­gued the re­mand war­rants were served ac­cord­ing to the law.

“This move had noth­ing to do with the judg­ment of the honourable court. It was mo­ti­vated by ob­jec­tive and gen­uine con­sid­er­a­tions of se­cu­rity and the safety of po­ten­tial wit­nesses, the safety of the ap­pli­cants and the gen­eral de­sire to main­tain dis­ci­pline in the LDF.”

He also says the sol­diers were given a chance to talk about their de­ten­tion but opted not to do so.

“The ap­pli­cants were pro­vided with sta­tionery and other ma­te­ri­als to en­able them to make their writ­ten rep­re­sen­ta­tions. They failed to make such rep­re­sen­ta­tions.”

The deputy com­man­der in­sisted the sol­diers are likely to ab­scond if re­leased from de­ten­tion be­cause of the pos­si­ble heavy pun­ish­ment they face if found guilty by the Court Mar­tial.

“In view of the fact that other mem­bers have al­ready es­caped and skipped the coun­try, it is not in the in­ter­est of jus­tice that they be kept un­der open ar­rest.

“The LDF does not have the fa­cil­i­ties to en­sure their move­ment could be re­stricted and there is noth­ing that guar­an­tees that they will not es­cape in the same man­ner as their col­leagues,” he noted.

Maj-gen Motšo­motšo also de­nied that the High Court set aside “the close ar­rest or­der”.

“All the honourable court did was to grant a prayer which sought to re­view the de­ci­sion in the man­ner set out above.

“It never granted a con­se­quen­tial or­der in the man­ner sug­gested by the ap­pli­cants,” he stated.

On the sol­diers’ re­quest to have Court Mar­tial pro­ceed­ings sus­pended un­til their con­tempt ap­pli­ca­tion is fi­nalised to­mor­row, MajGen Motšo­motšo said the High Court had no author­ity to grant such a prayer.

“I aver that the honourable court is not en­ti­tled to stop pro­ceed­ings of an­other court par­tic­u­larly where no jus­ti­fi­able rea­son ex­ists.

“Un­der the premise, it is to­tally un­jus­ti­fied that Court Mar­tial pro­ceed­ings could be stopped sim­ply be­cause the ap­pli­cants are un­der close ar­rest,” he said.

The de­tained sol­diers are be­ing rep­re­sented by Ad­vo­cate Anna-marie de Vos (Se­nior Coun­sel) from South Africa, and Ad­vo­cates Haae Phoofolo (KC), Christo­pher Le­phuthing, and Koili Nde­bele. They are in­structed by At­tor­neys Khotso Nthon­tho and Tu­misang Mosotho.

The re­spon­dents are rep­re­sented by Ad­vo­cate Motiea Teele (KC) and At­tor­ney Qhale­hang Let­sika.

The 22 de­tained sol­diers are Bri­gadier Tho­riso Mo­toa, Colonel Ste­mere, Colonel Kolisang, Ma­jor Makhetha, Cap­tain Chaka, Sec­ond-lieu­tenant Mo­hasi, Sergeant Mokhobo, Sergeant Se­makale, Sergeant Lekhabun­yane, Cor­po­ral Mokhoro, Cor­po­ral Let­si­lane, Cor­po­ral Lipoto, Cor­po­ral Manaka, Cor­po­ral Mo­hat­lane, Cor­po­ral Chele, Cor­po­ral Mot­seko, Lance-cor­po­ral Jobo, Lance-cor­po­ral Molefi, Lance-cor­po­ral Makhooane, Pri­vate Pama, Pri­vate Bolofo and Pri­vate Ral­itlemo.

A to­tal of 23 LDF mem­bers are fac­ing the mutiny charges, in­clud­ing Bri­gadier Thoso Mareka, who was re­leased from the pri­son due to ill-health. How­ever, Bri­gadier Mareka has since been placed un­der open ar­rest.

“I wish to in­di­cate that the ap­proach of the ap­pli­cants that the com­man­der of the LDF is guilty of con­tempt of court con­cern­ing this prayer is with­out merit. This prayer, in it­self, does not oblige the com­man­der to do a pos­i­tive thing or re­frain from do­ing a spe­cific act.

Newspapers in English

Newspapers from Lesotho

© PressReader. All rights reserved.