- as DPP withdraws murder charges due to unavailability of a “key witness”,
- move surprises judge, slammed by lawyer as “travesty of justice”.
Mohalenyane Phakela / Moorosi Tsiane
Former Prime Minister Thomas Thabane and his wife, ‘Maesaiah Thabane, are off the murder hook and now as free as birds of the air.
This after, the Director of Public Prosecutions (DPP), Hlalefang Motinyane, on Tuesday withdrew the charges against them, citing her failure to locate a “key witness” for their trial over allegations they plotted the murder of Mr Thabane’s ex-wife, Lipolelo.
The highly unexpected and bizarre twist of events took even the presiding Judge, Molefi Makara, by surprise after lead prosecutor, Gareth Leppan, told him that he (Leppan) had been instructed by DPP Motinyane to withdraw the charges against the power couple.
Advocate Leppan told the court that they had failed to locate one of the 39 witnesses who had been lined up to testify against the Thabanes. Therefore, the case could not proceed without that unnamed key witness, Adv Leppan said.
The withdrawal of the charges has been slammed by a lawyer for one of the witnesses, Adv Letuka Molati as well as some police officers privy to the investigations into Lipolelo’s 14 June 2017 murder.
Adv Molati represents Makarabo Mojakhomo, a former employee of ‘Maesaiah who allegedly disappeared from police custody on 30 May 2018. She had been detained at the police headquarters while awaiting trial for allegedly defrauding the ‘Maesaiah Thabane’s Trust Fund of at least M200 000. She resurfaced in South Africa in August 2018 and has been living there ever since, allegedly in fear that the former first family could have her killed.
Adv Molati this week told the Lesotho Times that she would have testified that ‘Maesaiah had sent her to give money to Lipolelo’s killers.
Sources close to the investigation alleged that each of the 39 witnesses had a testimony which would have nailed the Thabanes. Therefore, it did not make sense for the Crown to withdraw the charges simply because of one ‘missing’ witness, they said.
They said the withdrawal of the charges was a “grave miscarriage of justice and sends out the wrong message that politicians and other high-profile people are immune to prosecution in Lesotho”.
The lead investigator of the murder case, Deputy Commissioner of Police (DCP) Paseka Mokete, maintained that he had completed the investigations and presented “enough evidence” to the DPP. However, the DPP had sole discretion to choose whether or not to press charges. He could not interfere with the DPP’s functions, he said.
On the other hand, the Thabanes’ lawyers, Qhalehang Letsika, Salemane Phafane and Rethabile Setlojoane, said there was never a case against their clients to begin with.
They said the “trumped-up charges” were part of a wider strategy to remove Mr Thabane from the premiership which succeeded when he was forced to step down on 20 May 2020.
The Thabanes had been accused of the murder of Lipolelo and attempted murder of her friend, Thato Sibolla.
Lipolelo was shot dead by unknown gunmen on 14 June 2017 near her Ha Masana, Maseru home. She was travelling in her vehicle with Ms Sibolla who sustained gunshot wounds on the leg and on the stomach. Lipolelo and Mr Thabane had been involved in acrimonious divorce proceedings when she was murdered just two days before Mr Thabane’s inauguration for his second stint as prime minister.
An indictment sheet was then drawn by DPP Motinyane charging the Thabanes with the murder of Lipolelo, conspiracy to kill her, attempted murder of Ms Sibolla and damaging Lipolelo’s vehicle after it was shot at.
‘Maesaiah was arrested in February 2020 and charged with the murder. She was subsequently released on M10 000 bail in July 2020 while Mr Thabane was never formally charged until the withdrawal of the case against them on Tuesday.
The trial had been billed to run from Tuesday to tomorrow and then again from 1 to 3 August 2022.
The Thabanes arrived at the High Court at about 8.30 am on Tuesday.
Mr Thabane arrived in his official Lexus SUV vehicle while ‘Maesaiah drove herself in her 4×4 Ford Ranger. She had an entourage of five women while Mr Thabane was accompanied by his close ally, former cabinet minister, Samonyane Ntsekele.
Mr Thabane’s son-in-law, Lebohang Hlaele, was also among a handful of people who came to support the Thabanes. Mr Hlaele is secretary general of the All Basotho Convention (ABC) which was founded in 2006 and led by Mr Thabane until his retirement on 31 December 2021. He is also husband to Mr Thabane’s daughter and High Court Judge, ‘Mabatšoeneng Hlaele.
The Thabane couple generally kept apart at the court premises and only sat together in the dock.
Although proceedings were supposed to begin at 9.30am, they only started at midday, amid revelations by Justice Makara that they had been delayed by the failure to timeously locate the case file.
When everything was set for the much-anticipated trial to begin, Adv Leppan then dropped the bombshell. The prosecution was withdrawing the charges, he told a stunned courtroom.
“We have been unable to trace an important witness in this matter and therefore the Director of Public Prosecutions has decided to withdraw charges.
“This is a critical witness who tied together the evidence of other witnesses and therefore we cannot proceed without that witness,” Adv Leppan submitted.
A puzzled Justice Makara then asked Adv Leppan whether he meant that the testimonies of other witnesses could not stand without that one “missing” witness. He responded in the affirmative.
While accepting the withdrawal of the charges, Adv Phafane expressed dissatisfaction with what he said was the “traumatisation and frustration” of his clients over a long time. He said the Thabanes had suffered inexorably in the court of public opinion when the charges were kept hanging over their heads. The charges had been politically motivated and only instituted to force Mr Thabane out of office, he claimed.
He gave a chronology of events which he said was evidence that the Crown never intended to prosecute the Thabanes because there was no case against them to begin with.
“The offence is alleged to have taken place in 14 June 2017,” Adv Phafane said.
“That is five years, a month and some days during which the prosecution had time to investigate the case and put together all the witnesses. The defence was furnished with a pile of dockets with no less than 39 witness statements which they had to study and discuss with the accused.
“It is a matter of public knowledge that this case has attracted lot of attention locally and in the international community. The reason being that the person who was allegedly assassinated was a wife of the then prime minister.
“Fast forward to February 2020, the accused persons were formally charged. When the then prime minister was brought to court, the matter became an issue of great concern and interest to the public. As such, that placed a heavy burden on the shoulders of these accused persons.
“The (accused) have all this time had a yoke on their necks that they murdered the late Lipolelo. Thabane is 83 years old. As a retired prime minister, he should be resting and enjoying peace of mind, but he has been dragged to court for two years only for the Crown to say its house is not in order.
“The Crown never had a case. They were playing to the gallery; they were playing to the media and it was just a political game. The old man was forced to leave the office of prime minister because of this case and that automatically says my client (‘Maesaiah) was also forced to leave office as the First Lady,” Adv Phafane argued.
He said the case had been dragging until they applied for it to be expedited.
“After ‘Maesaiah was remanded at the magistrates’ court, she became increasingly anxious as she wanted the matter to be quickly dealt with to finality. In March last year, she approached the DPP to ask that she proceeds with the matter or withdraw the charges. That culminated in a formal application in terms of the Speedy Courts Trial Act for the charges to be dismissed in terms of section 32 read with section 12(1) of the Constitution.
“It was then that the matter was hurriedly moved to this court for a summary trial. One would have thought that the Crown was ready but they were not ready and have never been ready in all these five years. The law requires that one should be tried within a reasonable time. We asked them to withdraw within two years and they refused. We want to inform this court about the predicament and frustration which the accused have endured,” Adv Phafane said.
Fellow defence lawyer, Attorney Letsika concurred, saying Mr Thabane had suffered enough and wanted to rest.
Adv Leppan maintained that there was a case against the Thabanes hence the drawing up of the charges.
Justice Makara then adjourned the proceedings at about 1.30pm to apply his mind to the submissions. He resumed court proceedings at around 3.30pm and granted the DPP’s application to withdraw the charges.
“It emerged as a surprise to the court,” Justice Makara said of the DPP’s decision to withdraw the charges.
“It should suffice to state that the Crown substantiated its application upon a confession that it had encountered a misfortune of being unable to secure the availability of their key witness. The defence supported their application.
“The Crown has the exclusive authority to determine whether a person suspected of committing a crime should be charged or otherwise. It is endowed with the powers to reconsider its position, among others, electing to withdraw the case it had initiated.
“The court consequently comes to a conclusion that the application to have the charges withdrawn succeeds and you (Thabanes) are resultantly excused from featuring before this court against the same charges,” Justice Makara ruled.
The Thabanes did not display any emotions of joy or relief when the verdict was announced. Nor were there any celebrations by those who had come to court to support them. Instead, the Thabanes left in their separate vehicles, each with the people they came with. The Lesotho Times crew’s attempts to obtain comment were rebuffed by ‘Maesaiah who said she had been drained by the entire case and needed to rest.
Contacted for comment, DCP Mokete said he had done his part investigating the matter and it was up to the DPP to decide whether or not to withdraw charges.
“I did my part by collecting all the required evidence and presented it to the office of the DPP. I do not know the particular witness whose absence rendered the case unprosecutable.
“My duty was to compile and interview all people whom I regarded as important to the case. However, it is up to the DPP to decide which witnesses to use in court. She is the one who prosecutes criminal cases. It is her sole responsibility and I respect her role and therefore I cannot interfere,” DCP Mokete said.
However, Adv Molati was scathing in his criticism of the DPP’s decision to withdraw the murder charges.
“There is no other explanation except to say this is a travesty of justice,” a fuming Adv Molati said.
“Justice is being raped. I am the legal representative of ‘Makarabo Mojakhomo. She presented enough evidence to the police to the effect that she was sent by ‘Maesaiah to fetch money from loan sharks and give it to Lipolelo’s killers.
“She was interviewed again by the police about a fortnight ago and she never said she was unavailable. It is nonsensical to say witnesses are not available,” Adv Molati said.
The withdrawal of the charges is merely the latest in a growing list of high-profile cases that have either been aborted or poorly prosecuted leading to the acquittal of the suspects.
Both the police and the prosecution have come under attack from a cross-section of society for seemingly allowing high-profile suspects to easily get off the hook.
Some of the poorly prosecuted cases include that of business mogul, Tšeliso Nthane, who was tried and acquitted without any basic forensics having been presented in court.
Mr Nthane had been charged with the 10 January 2019 murder of his truck driver, Kopang Mohapi. He was acquitted without even being put to his defence on the grounds that the prosecution had dismally failed to prove that he had a prima facie (on the face of it) case to answer.
His 8 April 2022 acquittal, after a trial which barely lasted 72 hours, sent shockwaves around the country with some prominent people including former Justice Minister, Kelebone Maope, slamming the police and prosecution for the “shoddy job” which led to his discharge.
Advocate Maope KC said given the high levels of corruption among police and prosecutors, graft could not be ruled out as the reason behind the weak state case which led to Mr Nthane’s acquittal.
He said as the nation was now “in real danger from criminals” who were being allowed to walk free as a result of the incompetence or corruption of police officers and prosecutors.
DPP Motinyane has since appealed the acquittal in the Court of Appeal. The matter is pending.
Local Government and Chieftainship Affairs Minister, Lehlohonolo Moramotse’s murder-accused son, Thabo Moramotse, was also acquitted in May under controversial circumstances.
He was acquitted on the grounds that the Crown had failed to prove a prima facie case against him.
The state had based its case on Thabo’s alleged confession to the crime. He allegedly made the confession before the now deceased Maseru Magistrate Phethise Motanyane in 2016.
It had also relied on a confession by one of Thabo’s co-accused, Pako Sekhonyana, who is now deceased. Another co-accused, Tekane Tekane, is now deceased and this had left Thabo as the only accused on trial for the murder.
The slain ‘Mateboho, who was shot dead as she drove into the family’s residence on 22 June 2016, was wife to Thabo’s younger brother, Nduma. The state had alleged that Thabo murdered ‘Mateboho because he suspected her of having an illicit affair with his father, Mr Moramotse.
A senior lawyer, who preferred anonymity, said as more suspected criminals get off the hook, Ms Motinyane’s position as DPP was becoming increasingly untenable.
“You guys have been harping about the need to remove Molibeli….What you are ignoring is the fact that an efficient justice system must fire from all the cylinders. With the DPP’s office unable to conduct basic prosecutions, it is increasingly becoming obvious that the current DPP’s position is now untenable.”
