‘Scott’s case first of its kind’

Lesotho Times - - Big Interview -

ONE of the high­lights of 2015 in Le­sotho was the ex­tra­di­tion of dou­ble rit­ual mur­der sus­pect, Lehlo­honolo Scott, from South Africa.

The 30-year old had been charged with the mur­der of Mo­holo­bela Seetsa (13) and Kamo­h­elo Mo­hata (22) in Jan­uary and June 2012 re­spec­tively. He was ar­rested on 12 July 2012 along­side his mother ’Malehlo­honolo, but es­caped from Maseru Cen­tral Prison on 14 Oc­to­ber 2012 and fled to South Africa.

His life on the run, how­ever, ended on 6 April 2014 when he was ar­rested in Dur­ban, and ex­tra­dited to Le­sotho on 21 Oc­to­ber 2015 fol­low­ing as­sur­ances by the govern­ment to the South African au­thor­i­ties that the death penalty would not be ef­fected if Scott was con­victed.

In this wide-rang­ing in­ter­view, Scott’s lawyer, Ad­vo­cate Thulo Hoeane, tells Le­sotho Times (LT) reporter, Lekhetho Nt­sukun­yane, about his client’s case and other re­lated is­sues.

LT: Can you ex­plain why you did not pitch up on some oc­ca­sions to rep­re­sent Scott in court fol­low­ing his ex­tra­di­tion last Oc­to­ber?

Hoeane: I found it very strange that Scott ap­peared in court on two oc­ca­sions, yet I was not in­formed as his lawyer. As a mat­ter of fact, I am paid by the govern­ment to rep­re­sent him. Since the pros­e­cu­tion was aware that I was his lawyer, I ex­pected them to in­form me of the court ap­pear­ances. I don’t know what agenda they had in de­cid­ing not to in­form me since it was tan­ta­mount to am­bush­ing me. Scott has a right to le­gal rep­re­sen­ta­tion, and they are aware that I am his lawyer. So they should have in­formed me.

LT: What was the pros­e­cu­tion’s ex­pla­na­tion?

Hoeane: They sim­ply said they had no obli­ga­tion to in­form me (about Scott’s ap­pear­ances in court) since there is no law that com­pels them to tell me. Ul­ti­mately, it is a mat­ter of cour­tesy for the pros­e­cu­tion to in­form me about his ap­pear­ance in court. How­ever, there was clearly a cour­tesy deficit in this in­stance, and I am very con­cerned about that be­cause it does not serve the in­ter­ests of jus­tice for Scott to go to court with­out any le­gal rep­re­sen­ta­tion, which he is en­ti­tled to.

LT: What is the usual pro­ce­dure when an in­de­pen­dent de­fence lawyer like you is hired by the govern­ment to rep­re­sent a de­fen­dant such as Scott?

Hoeane: First of all, the sus­pect or ac­cused per­son, in all mur­der cases tried in the High Court, is in­ter­viewed by of­fi­cers of the High Court, par­tic­u­larly the reg­is­trars. Af­ter the in­ter­view, the of­fi­cers are able to de­ter­mine whether the sus­pect can af­ford le­gal rep­re­sen­ta­tion.

If they con­clude that the sus­pect can­not af­ford le­gal rep­re­sen­ta­tion, the of­fice of the reg­is­trar will then iden­tify a suit­able lawyer to han­dle the mat­ter. This will de­pend on a num­ber of fac­tors such as ex­pe­ri­ence, the com­plex­ity of the case and so on. That is how I was iden­ti­fied by the of­fice of the reg­is­trar to han­dle this case.

LT: What are your cre­den­tials as a lawyer?

Hoeane: I have been do­ing this work since 1988, and han­dled a num­ber of high pro­file crim­i­nal cases in this coun­try. I rep­re­sented the for­eign mer­ce­nar­ies who at­tacked Mokoanyane Bar­racks and Prime Min­is­ter Pakalitha Mo­sisili’s of­fi­cial res­i­dence on 22 April 2009. I was also in­volved in a high pro­file case in which mem­bers of the army and po­lice had en­gaged in a shoot-out at Maseru Cen­tral Charge Of­fice in 1994. Some high pro­file peo­ple in both the army and po­lice were in­volved in the shootout, and I rep­re­sented some of them.

I was also in­volved in a high pro­file mur­der case in­volv­ing the re­gional man­ager of a tex­tile fac­tory in Maseru. The three sus­pects I rep­re­sented were ini­tially sen­tenced to death by the High Court. But the judge­ment was later re­viewed by the Court of Ap­peal and all the sus­pects were found not guilty, which says a lot about our jus­tice sys­tem. If one court can find you so guilty that it can sen­tence you to death, and an­other finds you so in­no­cent that you can go home, that is a shock­ing state of affairs. I can say most of my work, in ex­cess of 90 per­cent, in­volves crim­i­nal mat­ters as op­posed to civil cases.

I will also be rep­re­sent­ing Set­sokot­sane Ma­jalle, who is fac­ing mur­der charges fol­low­ing the bru­tal killings of two nurses in Thaba-bo­siu in Au­gust 2014. I also have ap­peals of death penalty judg­ments made by the High Court in­volv­ing three peo­ple. I will be rep­re­sent­ing them in the next Court of Ap­peal ses­sion in April 2016. The trio in­cludes ’Makhotso Molise, who was sen­tenced to death for the mur­der of an el­derly lady in Khu­bet­soana, Maseru. The other two are Tello Mabusela and Hape Mo­hapi, who were con­victed for the mur­der of three peo­ple and rape, re­spec­tively.

LT: Were you the only lawyer iden­ti­fied to rep­re­sent Scott?

Hoeane: Sev­eral lawyers were ap­proached but ex­pressed mis­giv­ings about the case with re­gards to their con­science and other fac­tors. How­ever, in my view, it was just an­other case which was no worse than the oth­ers I have dealt with be­fore. There is no doubt that the crime that was com­mit­ted is shock­ing, but let us all re­mem­ber that th­ese are only al­le­ga­tions at this stage. The al­le­ga­tions must be proved in court. The mis­take most peo­ple usu­ally make is that once a per­son is charged, we as­sume that they com­mit­ted the crime.

LT: Do you think Scott’s case has been politi­cised?

Hoeane: A lot has been said about Scott and there is a lot of pres­sure on this case. It is not an easy case to han­dle. Some peo­ple even ask what sort of per­son I am to be in­volved in such a case. There has been a lot of pres­sure from friends and rel­a­tives. When my chil­dren heard I was rep­re­sent­ing Scott, they voiced their dis­ap­proval. How­ever, as a pro­fes­sional, you have to put all that aside and fo­cus on the job that you have to do. There have also been at­tempts to politi­cise the mat­ter, with the po­lice ap­proach­ing Scott in jail to try to get him to im­pli­cate cer­tain op­po­si­tion politi­cians. That is un­ac­cept­able. In my view, this is purely a crim­i­nal mat­ter. I am Scott’s lawyer be­cause I want to rep­re­sent him in so far as the two mur­ders which oc­curred in Koal­a­bata in 2012 are con­cerned. I am also rep­re­sent­ing him on this lat­est charge of es­cap­ing from law­ful cus­tody.

That is all that I want to deal with. As for all th­ese other mat­ters which are said to be political, I think they are just in­tended to con­fuse and di­vert at­ten­tion away from the real is­sues — the charges that he faces in court.

Scott has as­sured me that he is ready to go to court and put up a de­fence. What the court will do about that I do not know. We can­not pre­judge or pre­empt what the courts are go­ing to do be­cause that is con­temp­tu­ous. We will wait un­til such a time that the mat­ter comes be­fore court. The date set for Scott’s hear­ing is 11 April 2016.

LT: Have you en­coun­tered any in­tim­i­da­tion for rep­re­sent­ing Scott?

Hoeane: Not par­tic­u­larly. I have not en­coun­tered any di­rect in­tim­i­da­tion. The only in­stance of in­tim­i­da­tion were moves to ar­rest me af­ter I re­vealed to the me­dia that the po­lice ap­proached Scott in jail to try to get him to im­pli­cate op­po­si­tion politi­cians.

I was ready for the ar­rest be­cause I have noth­ing to apol­o­gise for. I don’t know whether the in­ten­tion to ar­rest me was aban­doned or not, but what I said was the ab­so­lute truth. Scott him­self told me about the ha­rass­ment he had been sub­jected to.

If any­body was go­ing to ar­rest me over that is­sue, Scott would have been my wit­ness since he is the per­son who con­veyed that in­for­ma­tion to me. Other than that, there were no threats. It’s only that some peo­ple are un­com­fort­able with my job. I know it comes with the ter­ri­tory; it is what you have to go through as a crim­i­nal de­fence lawyer. In a case such as Scott’s, emo­tions run high, and peo­ple are likely to say a lot of re­marks about me. I will not be di­verted from fo­cus­ing on the task at hand.

LT: When Scott was in South Africa, were you in touch with him?

Hoeane: From the time Scott was ar­rested, I was in con­tact with him. In South Africa, they al­low in­mates to use cell­phones, so Scott used to phone me from his hold­ing cell. I was also fol­low­ing up the mat­ter with his lawyers in Dur­ban.

LT: Who was pay­ing for Scott’s le­gal fees in South Africa?

Hoeane: I re­ally don’t know to be hon­est. I have heard so many claims by politi­cians about who was mak­ing the pay­ments, but I just took them as ru­mours. When I asked Scott about the mat­ter, he told me that his fam­ily used all the money they had to pay for the le­gal fees. In fact, there was a time when Scott ran out money and I had to ne­go­ti­ate with the lawyer in Dur­ban to con­tinue to rep­re­sent him while he sorted out the is­sue.

LT: Save for Scott, many sus­pects who es­caped to South Africa re­main at large. Why is ex­tra­di­tion so dif­fi­cult?

Hoeane: Ex­tra­di­tion has al­ways been prob­lem­atic. Le­sotho and South Africa only for­mu­lated an ex­tra­di­tion treaty in 2001. But even af­ter the treaty came into be­ing, it has al­ways been a chal­lenge to im­ple­ment it, es­pe­cially where a sus­pect faces mur­der charges.

This is be­cause South Africa does not ex­tra­dite peo­ple fac­ing the death penalty in the re­quest­ing state. How­ever, in Scott’s case, there is a pro­vi­sion in the ex­tra­di­tion treaty al­low­ing the repa­tri­a­tion of a sus­pect if the re­quest­ing state makes an un­der­tak­ing, through the two coun­tries’ Jus­tice min­is­ters, that in the event the court con­victs the sus­pect, they will not carry out the death penalty. The pro­vi­sion was used in Scott’s case, so even if he were to be found guilty and sen­tenced to death, the penalty would not be car­ried out be­cause of that un­der­tak­ing.

LT: What is your opin­ion re­gard­ing the death sen­tence?

Hoeane: The death penalty is a sub­hu­man and bar­baric sen­tence. It is le­galised mur­der. All civ­i­lized le­gal ju­ris­dic­tions are mov­ing away from the death penalty be­cause it is only vin­dic­tive. It is meant to take re­venge on the ac­cused per­son. The pur­pose of pun­ish­ment is to re­form a per­son. In keep­ing with that, pris­ons were re­named as cor­rec­tional in­sti­tu­tions. The idea be­hind the move was to re­ha­bil­i­tate a con­vict so they can be­come use­ful mem­bers of so­ci­ety. How­ever, the death penalty doesn’t give con­victs that op­por­tu­nity.

If Le­sotho in­sti­tutes con­sti­tu­tional re­forms, one of the aspects we need to do away with is the death penalty. The last per­son hanged in Le­sotho was in 1996. For the past 20 years, no hang­ing has taken place. Yet in that pe­riod, the High Court passed more than 30 death sen­tences, and they have al­ways been com­muted.

They have never been car­ried out be­cause we have al­ways had a Court of Ap­peal staffed by judges from South Africa. Since South Africa has done away with the death penalty, the judges are not in­clined to ap­prove the death penalty.

They ac­tu­ally do ev­ery­thing in their power to en­sure they hand out any pun­ish­ment other than a death sen­tence. That re­luc­tance by the Court of Ap­peal to pass the death sen­tence shows that it is about time we started mov­ing in that di­rec­tion. Why have a law which you hardly use? It shows you don’t need it. Let’s look at other forms of pun­ish­ment.

Some peo­ple even ask what sort of per­son I am to be in­volved in such a case. There has been a lot of pres­sure from friends and rel­a­tives. When my chil­dren heard I was rep­re­sent­ing Scott, they voiced their dis­ap­proval. How­ever, as a pro­fes­sional, you have to put all that aside and fo­cus on the job that you have to do. There have also been at­tempts to politi­cise the mat­ter, with the po­lice ap­proach­ing Scott in jail to try to get him to im­pli­cate cer­tain op­po­si­tion politi­cians. That is un­ac­cept­able.

LT: What would be the al­ter­na­tive pun­ish­ment if Scott is sen­tenced to death by the courts es­pe­cially when the govern­ment has com­mit­ted not to carry it out?

Hoeane: I think the al­ter­na­tive pun­ish­ment would be im­pris­on­ment. It would be a ques­tion of how many years must he serve. That would, how­ever, be a prob­lem be­cause the court would have al­ready dealt with the mat­ter. The govern­ment can­not in­ter­fere with the courts to an ex­tent that it can in­struct how they should sen­tence Scott. This is the first case of its na­ture in Le­sotho.

Ad­vo­cate thulo Hoeane.

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