‘I have the right to be treated with re­spect’

Lesotho Times - - Big Interview -

Ad­vo­cate thulo Hoeane is not a happy man af­ter his bid to get Highgh court judge, Jus­tice te­boho Moiloa, off the trial of Lehlo­honolo Scott and his mother, ther, ’ Malehlo­honolo, failed last week. the lawyer had ap­plied for Jus­tice Moiloa’s re­cusal,ecusal, ar­gu­ing his clients would not get a fair trial un­der the judge. the Scotts were ar­rested on 12 July 2012 for al­legedly killing ng and mu­ti­lat­ing their Koal­a­bata neigh­bours, urs, Mo­holo­bela Seetsa (13) and Kamo­h­elo Mo­hata (22) in Jan­uary and June 2012, re­spec­tively. pec­tively.

Lehlo­honolo es­caped from m Maseru cen­tral Prison on 14 oc­to­ber er 2012 while await­ing trial but was ar­rest­edted in dur­ban, South Africa, on 6 April 2014. 14. He was ex­tra­dited to Le­sotho on 21 oc­to­ber cto­ber 2015. In this wide-rang­ing in­ter­view,w, Ad­vo­cate Hoeane tells Le­sotho Timess ( LT) reporter, Lekhetho Nt­sukun­yane, about his dis­ap­point­ment and that he is tak­ingk­ing the mat­ter to the con­sti­tu­tional court in his bat­tle to get Jus­tice Moiloa off thee case.

LT: You have failed in your bid to have Jus­tice Moiloa off the Scotts case, which should have come as a blow to you and your clients. Could you briefly re­mind us of f what made you de­cide too seek the judge’s re­cusal?

Hoeane: the re­cusal is basedased on the fact that I am not sat­is­fied with the way the judge has been con­duct­ing this case. Let me give you a prac­ti­cal ex­am­ple of what hap­pened in court. there was an in­stance where the pros­e­cu­tion failed to hand in ex­hibits, which is some­thing they ought to do un­der normal cir­cum­stances. When I cross-ex­am­ined the wit­ness about this fail­ure, he con­ceded this had not been done. And if the ex­hibits had not been placed be­fore court to form part of the court record, it means they are not ev­i­dence in that court. the judge then made a rul­ing that he was go­ing to ac­cept those ex­hibits. I don’t have a prob­lem with the judge mak­ing a rul­ing be­cause that is part of his du­ties as the trial judge. My prob­lem with Jus­tice Moiloa is that those ex­hibits were ac­tu­ally handed in as ev­i­dence by him. He just made an or­der. the pros­e­cu­tion and wit­nesses were not in­volved.

LT: What should have hap­pened, in your view?

Hoeane: Such ev­i­dence should have been ten­dered by the wit­ness, so that the wit­ness can be cross-ex­am­ined on that ev­i­dence. Now, if the ev­i­dence is ten­dered by the court it­self, how do I cross-ex­am­ine the court? In­evitably, that leads to a sit­u­a­tion where I am in no doubt that the judge has now taken a side. He’s now on the side of the pros­e­cu­tion be­cause this was the pros­e­cu­tion wit­ness. the judge has ac­tu­ally joined the pros­e­cu­tion so that you find no dis­tinc­tion be­tween the pros­e­cu­tion and the judge. that is my prob­lem and I ap­plied for that re­cusal on that ba­sis. Be­sides that, if you read the re­cusal ap­pli­ca­tion judge­ment, there are words like “non­sense”. the re­ac­tion of the judge where he refers to sub­mis­sions made by my­self in court as amount­ing to non­sense is un­ac­cept­able lan­guage.

As lawyers, we are ex­pected to re­spect the courts. And if the courts don’t re­spect us, for in­stance the judge says what I am say­ing is rub­bish and if I were to re­ply that what the judge is say­ing is worse rub­bish, you see where that would take us? Firstly, the court would lose re­spect. We are peo­ple who are sup­posed to dis­pense jus­tice in this coun­try. I have the right to be in that court­room. I have the right to be treated with re­spect. I re­spect judges. I re­spect Jus­tice Moiloa. But judges must not talk to me in that man­ner. I find it to­tally un­ac­cept­able. And for that mat­ter I am so an­noyed by this thing that I am go­ing to take up the mat­ter with the chief Jus­tice. this par­tic­u­lar part of the judge­ment where he says what I am say­ing is non­sense, I want the chief Jus­tice to in­ter­vene. Jus­tice Moiloa, at the end of the day, must re­tract or apol­o­gise for those words be­cause I don’t think that is the way crim­i­nal tri­als should be con­ducted. I am wor­ried about such lan­guage.

LT: So how are you go­ing to con­tinue work­ing with Jus­tice Moiloa in this trial as it re­sumes on 17 Oc­to­ber this year? Hoeane: We are say­ing we don’t have con­fi­dence in this judge. He in­sists that we are talk­ing non­sense. He in­sists, there­fore, that he will con­tinue to pre­side over the mat­ter. How do you pre­side over a case when we have shown that we don’t have con­fi­dence in you? But what we are go­ing to do very soon be­fore the end of June, is in­sti­tute a con­sti­tu­tional case that the Scotts are not go­ing to get a fair trial be­fore Jus­tice Moiloa. the Scotts are en­ti­tled to a fair trial in terms of the con­sti­tu­tion. His con­duct dur­ing the re­cusal ap­pli­ca­tion has clearly in­di­cated that he can­not bring an un­bi­ased mind into this mat­ter. this is why we are tak­ing up this mat­ter with the con­sti­tu­tional court, that it must set aside his re­fusal to re­cuse him­self. If that fails, be­cause we can­not pre­empt what the courts are go­ing to de­cide, we are tak­ing up this mat­ter with the court of Ap­peal. I will take up this mat­ter even with the high­est court in this coun­try to make sure that we get Jus­tice Moiloa off this case.

LT: Do you mean you have started pre­par­ing the con­sti­tu­tional mat­ter?

Hoeane: I am con­sult­ing with my clients now. I think around 15 June, I should have drawn up all the pa­pers and I will be ready to file the case be­fore the con­sti­tu­tional court.

LT: What rea­sons did the judge give when he dis­missed your re­cusal ap­pli­ca­tion?

Hoeane: the judge mis­di­rected him­self be­cause my ap­pli­ca­tion is based on the fact that he jumped into the arena – the court arena. this is sup­posed to be be­tween me and the pros­e­cu­tion. the judge is sup­posed to be sit­ting where he is sit­ting as an im­par­tial per­son. He is not sup­posed to as­sist the pros­e­cu­tion or de­fence. And in this case, I am say­ing he jumped into the arena. Now what he was say­ing is that I brought this re­cusal ap­pli­ca­tion be­cause I was dis­sat­is­fied with the rul­ing that he made re­gard­ing the ad­mis­sion of the ex­hibits, which were not prop­erly handed in by the pros­e­cu­tion. that is not my case! that is why I am say­ing he mis­di­rected him­self. I am com­plain­ing about his con­duct of hand­ing in ex­hibits. Like I said ear­lier, if a judge hands in ex­hibits, then I am en­ti­tled to cross-ex­am­ine the judge. What will be­come of this case? this will not be a trial at all. What he did was ir­reg­u­lar and I stand by what I am say­ing.

LT: What were you ex­pect­ing the judge to do af­ter you raised your ar­gu­ment that the ex­hibits were not sub­mit­ted prop­erly be­fore the court?

Hoeane: What should have hap­pened was that he should have asked the pros­e­cu­tion why they did not hand in the ex­hibits be­cause it was clear they failed to do so. the pros­e­cu­tion then ought to have been re­quested to hand in those ex­hibits prop­erly. It should be clear I am not against the ad­mis­sion of the ex­hibits, I am against the man­ner in which they were sub­mit­ted. It is on that ba­sis that I am go­ing to the con­sti­tu­tional court for in­ter­ven­tion.

LT: You once said you wrote to Chief Jus­tice for in­ter­ven­tion in this trial. Has she re­sponded?

Hoeane: I have a lot of re­spect for the chief Jus­tice. She is a very fair lady. I wrote a let­ter to the chief Jus­tice to in­ter­vene be­cause the Reg­is­trar of the High court, Mr Le­sitsi Mokeke, was say­ing he was not go­ing to reen­gage me af­ter my with­drawal. the chief Jus­tice then in­ter­vened and lev­elled the play­ing field by say­ing she wanted to hear all the sides to this prob­lem. I was in­vited into cham­bers with both the ac­cused per­sons be­cause the chief Jus­tice wanted to make a de­ci­sion af­ter hear­ing both sides. Mr Mokeke had his own ver­sion.

His po­si­tion was that he was not go­ing to en­gage me. And there was noth­ing that obliges him to reen­gage me. And I was in­sist­ing that I had to be reen­gaged be­cause the Scotts are not in­ter­ested in any­body else to rep­re­sent them, ex­cept me. the chief Jus­tice in­ter­vened and in­di­cated to me that I had to be reen­gaged, not be­cause the Scotts were in­sist­ing on it but be­cause over time, since 2012, I had built a rap­port with them and there was now a sit­u­a­tion of trust and con­fi­dence be­tween them and me. As I speak to you now, that is the po­si­tion.

LT: There is some pub­lic opin­ion that you and your clients could be play­ing games in this trial, es­pe­cially fol­low­ing your ini­tial with­drawal. What do you say to that?

Hoeane: that was an­other un­for­tu­nate com­ment that the judge made. What games he was talk­ing about, I do not know. I know for a fact that for one rea­son or an­other, Lehlo- hon­olo Scott had to change lawyers while he was in dur­ban, South Africa, the main rea­son be­ing that he was un­able to pay fees for those lawyers. He would en­gage one lawyer and the lawyer would take the mat­ter for­ward but at some stage that lawyer would then have to with­draw be­cause Lehlo­honolo would run out of money. He would then look for an­other lawyer, per­haps a cheaper lawyer than the pre­vi­ous one. this is my un­der­stand­ing of the nu­mer­ous post­pone­ments around this case, which hap­pened in dur­ban. For the judge to say, at this par­tic­u­lar point in time, we are play­ing games is an un­for­tu­nate state­ment. No­body is play­ing games. I want to see this mat­ter go for­ward. I want to see this man (Lehlo­honolo) tried for the crimes that he is be­ing charged with, which oc­curred in Koal­a­bata in 2012. I am not here to play games. I know where to play games, and court­rooms are not the right place to play games. But I will stand for my rights and that of the ac­cused per­sons so that I rep­re­sent them in a man­ner which also sat­is­fies me as their le­gal rep­re­sen­ta­tive.

LT: At one point, you com­plained about al­leged gov­ern­ment in­ter­fer­ence into this mat­ter. What did you mean by that?

Hoeane: I know ex­actly what was hap­pen­ing. And I was very con­cerned about that. I still stand by that up to now, although a lot of threats were made to me sub­se­quent to that. I was threat­ened with ar­rest and so on. I didn’t bother about that ar­rest be­cause Lehlo­honolo Scott would be my first wit­ness. I was against the in­ves­ti­gat­ing of­fi­cers in this mat­ter see­ing Lehlo­honolo Scott in prison and try­ing to get him to im­pli­cate op­po­si­tion politi­cians, specif­i­cally thomas Mot­soa­hae tha­bane (ex­iled leader of the All Ba­sotho con­ven­tion and for­mer Prime Min­is­ter). When I heard this I im­me­di­ately rushed to prison and in­formed Lehlo­honolo Scott, as my client, that if th­ese peo­ple are go­ing to come up with th­ese is­sues you must have noth­ing to talk with them again. this case has no pol­i­tics in it. there is no op­po­si­tion leader in­volved in this mat­ter. So for any­body to say you must im­pli­cate op­po­si­tion peo­ple in this trial is also highly un­for­tu­nate. We have got to stick to the trial that re­lates to two mur­ders which oc­curred in Koal­a­bata in 2012, and the es­cape charge. I want this mat­ter to re­main a crim­i­nal case and noth­ing else. those that are not in­volved in it should not be im­pli­cated in any man­ner.

LT: You also, at an­other point, com­plained about how Lehlo­honolo was con­fined in prison, sug­gest­ing he was be­ing dis­crim­i­nated against…

Hoeane: I’m still not sat­is­fied with the way that he is be­ing con­fined. He is con­fined in a place called New Block. New Block is a prison within a prison. It is the most se­cure place in that prison. there are about 10 to 15 peo­ple at the mo­ment oc­cu­py­ing that par­tic­u­lar block. th­ese peo­ple in­ter­act at some stage but they are all in sin­gle cells. But at some stage they are let out of cells to in­ter­act with each other in the square. Lehlo­honolo Scott has no con­tact with th­ese peo­ple. He is be­ing treated dif­fer­ently from the other pris­on­ers. He is iso­lated not only from the pub­lic by be­ing in jail, he is also be­ing iso­lated from other in­mates who have the ad­van­tage of in­ter­act­ing with each other. My con­cern is if he is a New Block pris­oner, he’s a high se­cu­rity pris­oner, so why is he be­ing sub­jected to treat­ment which is dis­crim­i­na­tory? Why sin­gle him out?

LT: Have you chal­lenged this in court?

Hoeane: I have not done that yet. there was a time when he was chained. He had his feet and hands in chains. there was a time I in­di­cated this to the prison au­thor­i­ties and the leg-irons and hand­cuffs were re­moved. He was chained 24-hours, ev­ery sin­gle day. But he is no longer chained hands and feet now.

LT: Lehlo­honolo es­caped from prison be­fore. Is there some guar­an­tee he will not flee again now?

Hoeane: that’s a dif­fi­cult ques­tion. It re­mains to be heard whether Lehlo­honolo Scott in­deed fled from prison, like peo­ple put it, or he was ab­ducted. But we will cross that bridge when we get to it.

Ad­vo­cate thulo Hoeane

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