Kamoli re­jects judge

Lesotho Times - - Front Page - Tefo Tefo

Le­sotho De­fence Force (LDF) Com­man­der Lieu­tenant-gen­eral tlali Kamoli wants high Court judge Jus­tice Molefi Makara off a case in which 22 sol­diers seek to have him jailed for fail­ing to re­lease them from Maseru Max­i­mum se­cu­rity Prison.

the army chief is fac­ing a fresh con­tempt law­suit for keep­ing the sol­diers in de­ten­tion de­spite Jus­tice Makara’s or­der is­sued on 16 oc­to­ber. the or­der di­rected Lt-gen Kamoli to re­lease the sol­diers from prison and place them un­der open ar­rest. the sol­diers were de­tained be­tween May and June this year for al­legedly plot­ting to topple the LDF com­mand.

The con­tempt ap­pli­ca­tion, which was filed on 2 Novem­ber, was sup­posed to be ar­gued on Fri­day last week.

How­ever, Lt-gen Kamoli’s lawyers in­formed the judge that the army com­man­der and his fel­low re­spon­dents wanted him off the case.

Lt-gen Kamoli ar­gues Jus­tice Makara is likely to be bi­ased against him af­ter the judge ex­pressed anger, in cham­bers, over crit­i­cism lev­eled against him over a lo­cal ra­dio sta­tion. the con­dem­na­tion con­cerned the judg­ment Jus­tice Makara made in the first con­tempt of court ap­pli­ca­tion made by the de­tained sol­diers against Lt-gen Kamoli.

Jus­tice Makara on 16 Oc­to­ber ruled the LDF chief was not in con­tempt of court for not re­leas­ing the sol­diers af­ter the judge on 5 oc­to­ber said their de­ten­tion was un­law­ful. the judge noted Lt-gen Kamoli might not have clearly un­der­stood the or­der hence his fail­ure to re­lease the sol­diers.

How­ever, the army com­man­der is no longer com­fort­able to have Jus­tice Makara pre­sid­ing over the case be­cause of the com­ments he made in cham­bers.

to sup­port the ap­pli­ca­tion for re­cusal, the LDF’S lawyer, At­tor­ney Qhale­hang Let­sika sub­mit­ted an af­fi­davit in which he re­veals the judge’s com­ments.

“On or about 4 Novem­ber 2015, I re­ceived a tele­phone call from the judge’s clerk, Mr (eric) Ra­male­fane, in terms of which he in­formed me that his Lord­ship, Mr Jus­tice Makara, would like to see us with the other side rep­re­sent­ing the ap­pli­cants in this mat­ter.

“I duly com­plied. On or about 5 Novem­ber 2015, we con­vened in his cham­bers.

“In that meet­ing, coun­sel for the ap­pli­cants Messrs (Christo­pher) Le­phuthing and (Koili) Nde­bele, were present.”

At­tor­ney Let­sika said it was in that meet­ing that Jus­tice Makara made shock­ing claims that the army com­man­der and his co-re­spon­dents, De­fence Min­is­ter tšeliso Mokhosi, At­tor­ney Gen­eral Tšokolo Makhethe, Court Mar­tial Pres­i­dent Ma­jor-gen­eral Mo­jalefa Let­soela, and Court Mar­tial Pros­e­cu­tor Roland Suhr, felt he was no longer fit to pre­side over the case.

At­tor­ney Let­sika noted in the af­fi­davit: “Jus­tice Makara told us that he was fu­ri­ous be­cause some­one, whose iden­tity he did not dis­close, had made cer­tain re­marks on Har­vest FM ra­dio sta­tion about the fact that he ini­tially granted an or­der di­rect­ing the re­lease of the ap­pli­cants but that he sub­se­quently did not find the com­man­der guilty of con­tempt of court.

“the ex­act words that were used by this in­di­vid­ual re­lat­ing to us by His Lord­ship, were so egre­gious that they amounted to scan­dal­is­ing the court.

“The learned judge had ev­ery rea­son to be ag­i­tated. How­ever, it is the re­marks which he made dur­ing the meet­ing that have made the re­spon­dents con­cerned that he is not likely to bring an im­par­tial de­ci­sion in the mat­ter.”

“Al­ter­na­tively, the re­spon­dents per­ceive that he is likely to seek to show that he can make an or­der find­ing the com­man­der of the LDF guilty of con­tempt of court. It is be­cause in our meet­ing, the learned judge made it plain that the speaker was wrong to have ac­cused him of fail­ing to dis­charge his ju­di­cial du­ties be­cause he does not and would not fear to send the com­man­der to jail if he had to.”

At­tor­ney Let­sika fur­ther al­leges the army’s lawyers ad­vised the judge to stop mak­ing such re­marks but seek le­gal al­ter­na­tives against the in­di­vid­ual who crit­i­cised him over the ra­dio. The judge, At­tor­ney Let­sika added, was ad­vised to con­sult the At­tor­ney Gen­eral and Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP) on the mat­ter.

“the learned judge was re­luc­tant to pur­sue this route be­cause he kept on say­ing he would con­sult his own lawyers.

“He was told that his re­marks may cre­ate the per­cep­tion that if he finds the com­man­der of the LDF guilty of con­tempt, it would be to show the pub­lic that he could do it or that if he does not find him guilty it would be be­cause he was afraid to do so as had been sug­gested over the ra­dio,” he stated.

At­tor­ney Let­sika fur­ther said there were other se­ri­ous ut­ter­ances made by Jus­tice Makara dur­ing the meet­ing in ques­tion, which he would not dis­close in his af­fi­davit to avoid em­bar­rass­ing the judge.

“I must con­fess that I do not want, for pro­fes­sional rea­sons, to di­vulge full de­tails of the re­marks of the learned judge to avoid em­bar­rass­ing him.

“It is sig­nif­i­cant though, to in­di­cate that the is­sue of the per­son mak­ing re­marks about him on Har­vest FM made him un­der­stand­ably very fu­ri­ous with the con­se­quence that he made the pre­sen­ter of the pro­gramme in ques­tion to ap­pear be­fore him.

“This is a clear in­di­ca­tion that he took the com­ment by the per­son who spoke on ra­dio, in very se­ri­ous light.”

the lawyer also says the judge should re­cuse him­self be­cause he had dealt with the first con­tempt ap­pli­ca­tion against the army com­man­der.

he fur­ther ac­cused the judge of order­ing the re­lease of the sol­diers yet he had ini­tially not specif­i­cally said so in his rul­ing.

“When one would have thought that af­ter find­ing the re­spon­dents not guilty of con­tempt, which was the main re­lief sought, the learned judge went a step fur­ther in that ap­pli­ca­tion to grant an or­der which had not been prayed for.

“he granted an or­der in terms of which he or­dered the re­lease of the ap­pli­cants un­der open ar­rest.

“I wish to in­di­cate that the ap­pli­cants had not sought this kind of re­lief,” he stated.

How­ever, the de­tained sol­diers who want Lt-gen Kamoli jailed for fail­ing to re­lease them, are op­pos­ing the ap­pli­ca­tion seek­ing Jus­tice Makara’s re­cusal.

The sol­diers’ lawyer, At­tor­ney Tu­misang Mosotho, on Tues­day filed an af­fi­davit de­tail­ing why the judge should con­tinue hear­ing the case.

Part of his af­fi­davit reads: “Due to the na­ture of oath of of­fice taken by ju­di­cial of­fi­cers to ad­min­is­ter jus­tice with­out fear or favour, and their abil­ity to carry out that oath by rea­son of their train­ing and ex­pe­ri­ence, it is pre­sumed that they can dis­abuse their minds of any ir­rel­e­vant per­sonal be­liefs or pre­dis­po­si­tions.

“His Lord­ship Jus­tice Makara is a ju­di­cial of­fi­cer of many years, first as a renowned mag­is­trate and now as a judge.

“the pre­sump­tion is that he is a per­son of con­science and in­tel­lec­tual dis­ci­pline ca­pa­ble of judg­ing a par­tic­u­lar mat­ter fairly on the ba­sis of its own cir­cum­stances.”

At­tor­ney Mosotho fur­ther says jus­tice would be frus­trated if a lit­i­gant could sim­ply ask for an­other judge if he or she is not happy about the way the case is pro­ceed­ing.

He also says the ap­pli­ca­tion seek­ing the judge’s re­cusal is un­founded.

“As will be clearer in the fol­low­ing para­graphs, the re­spon­dents’ ap­pli­ca­tion that His Lord­ship Jus­tice Makara re­cuses him­self from this mat­ter is not only ten­u­ous but also friv­o­lous. It will be par­tic­u­larly prayed at the hear­ing of this mat­ter that the court, in or­der to pro­tect its in­tegrity, should frown at such an ill-founded and mis­di­rected chal­lenge to its com­po­si­tion,” he stated.

At­tor­ney Mosotho also said there was an­other rea­son why the ap­pli­ca­tion should be dis­missed.

“the at­tor­ney of record for the re­spon­dents states un­der oath that this ap­pli­ca­tion cen­tres around re­marks made by His Lord­ship Jus­tice Makara on 5 Novem­ber 2015.

“How­ever, there is no ex­pla­na­tion why he and the re­spon­dents only ap­proached the court on the eleventh hour on 19 Novem­ber 2015 when the mat­ter was set down to pro­ceed on the 20th of Novem­ber 2015.

“The re­spon­dents ought to have raised their com­plaint of po­ten­tial bias at the ear­li­est pos­si­ble stage af­ter all the facts giv­ing rise to the re­cusal com­plaint were known to them; in this case im­me­di­ately af­ter the 5th of Novem­ber 2015.”

At­tor­ney Mosotho fur­ther said the re­cusal ap­pli­ca­tion is a se­ri­ous mat­ter that af­fects the rights of other par­ties in­volved in the case.

“The sol­diers’ ap­pli­ca­tion is about their fun­da­men­tal right to lib­erty and such a mat­ter can­not un­rea­son­ably by pro­longed by mer­it­less ap­pli­ca­tions of this na­ture.

“In the cir­cum­stances, and in the ab­sence of an ex­pla­na­tion for the de­lay by the re­spon­dents, it is only rea­son­able to con­clude that this re­cusal com­plaint is but a tac­ti­cal de­vice to de­lay the hear­ing of the main ap­pli­ca­tion herein,” At­tor­ney Mosotho stated.

he also said the re­cusal ap­pli­ca­tion did not meet the re­quire­ments to be treated as ur­gent.

“The present ap­pli­ca­tion’s ur­gency has not been es­tab­lished both in form and sub­stance and it will be ar­gued that this ap­pli­ca­tion be dis­missed for lack of ur­gency with­out even en­ter­tain­ing the mer­its.”

Mean­while, the ap­pli­ca­tion for Jus­tice Makara’s re­cusal will be heard on Mon­day next week.

Judges’ Clerk, Eric Makara yes­ter­day told the Le­sotho Times: “There was sup­posed to be an ar­gu­ment on the con­tempt ap­pli­ca­tion on Fri­day last week.

“But on thurs­day, lawyers rep­re­sent­ing the army au­thor­i­ties in­ti­mated that they wanted to make an ap­pli­ca­tion for the learned judge to re­cuse him­self from the case.

“The judge told them to file a for­mal ap­pli­ca­tion by Fri­day last week.

“They filed the ap­pli­ca­tion and the agree­ment was lawyers rep­re­sent­ing the sol­diers should file their an­swer­ing pa­pers by Mon­day this week. How­ever, the an­swer­ing pa­pers were not filed on Mon­day as ex­pected.

“The ex­pla­na­tion was that they were served with the ap­pli­ca­tion late on Fri­day and did not have time to con­sult their clients in prison and only man­aged to do so on Mon­day.

“That is why they only filed their an­swer­ing pa­pers on tues­day and the ap­pli­cants in the re­cusal ap­pli­ca­tion have to re­ply.

“Now, the case will be ar­gued on Mon­day next week at 4pm.”

It is sig­nif­i­cant though, to in­di­cate that the is­sue of the per­son mak­ing re­marks about him on Har­vest FM made him un­der­stand­ably very fu­ri­ous with the con­se­quence that he made the pre­sen­ter of the pro­gramme in ques­tion to ap­pear be­fore him. This is a clear in­di­ca­tion that he took the com­ment by the per­son who spoke on ra­dio, in very se­ri­ous light

LDF Com­man­der Lieu­tenant-gen­eral Tlali Kamoli

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