- as accused police officers file fresh application for Justice Hungwe’s recusal
Mohalenyane Phakela
THE murder trial of four police officers accused of the March 2016 murder of Police Constable (PC) Mokalekale Khetheng failed to proceed yesterday. This after three of the suspects filed an application for the recusal of the presiding judge, Zimbabwean Charles Hungwe.
The three are Superintendent Mathibeli Mofolo, Inspector Mabitle Matona and PC Haleokoe Taasoane. They have been charged alongside Senior Superintendent Thabo Tšukulu.
In their court papers, the three argue that Justice Hungwe had already shown signs of bias when he suggested that they were deliberately delaying the trial by refusing to plead in the absence of their lawyer, Advocate Zwelakhe Mda. They therefore want the Zimbabwean judge to recuse himself on the grounds that he is unlikely to afford them a fair trial.
Justice Hungwe ruled that he will hear the recusal application on 10 May 2021 and deliver his judgement the following day.
Former Deputy Prime Minister Monyane Moleleki and former army commander Tlali Kamoli had been lined up by the prosecution as part of 53 witnesses to testify against the four officers.
At the time of PC Khetheng’s murder Mr Moleleki, who now leads the opposition Alliance of Democrats, was the Minister of Police and Public Safety in the Pakalitha Mosisili-led seven party coalition which lasted from March 2015 to June 2017.
Former Defence and National Security Minister, Tšeliso Mokhosi, and former National Security Services (NSS) Director General, Mohlakala Lerotholi, are the other prominent witnesses expected to testify at the trial.
The prosecution had been expected to call its first witness to the stand yesterday. But this was not to be due to the recusal application which was moved by Supt Mofolo, Insp Matona and PC Taasoane. Their lawyer, Adv Mda, argued that his clients lacked confidence in Justice Hungwe who they accused of insinuating that they were deliberately delaying the trial.
“His Lordship Hungwe has demonstrated actual bias against us by unfairly insinuating that we were deliberately delaying the trial. That gave us the impression that His Lordship had already prejudged the matter. We therefore ask His Lordship Hungwe to recuse himself from presiding over the trial,” Supt Mofolo states in his founding affidavit which was read in court by Adv Mda.
Adv Mda had been absent for the past three court appearances of his three clients from 22 to 27 April 2021. His clients were ordered to plead on 22 April 2021 but they refused to do so in the absence of Adv Mda. However, Justice Hungwe entered “not guilty” pleas on their behalf.
SSP Tšukulu’s lawyer, Adv Karabo Mohau, had told the court that Adv Mda had told him that he was sick and could not be in court. However, Justice Hungwe ruled that there was no evidence of Adv Mda’s illness in the absence of a doctor’s sick note.
The following day a sick note was tendered in by Adv Mda’s assistant but Justice Hungwe proceeded with the trial saying that Adv Mda should have made arrangements for someone else to stand-in for him.
In his affidavit, Supt Mofolo says they were shocked by Justice Hungwe’s decision to proceed with the trial in the absence of their lawyer, hence they now believed he would not afford them a fair trial.
“On 23 April 2021 Adv Mohau asked for this matter to be postponed to allow Adv Mda to be present. The court ruled that the trial would proceed because the court had been lenient on us in the past when Adv Mda was ill-disposed. The court therefore ordered for the matter to proceed with us not being represented.
“This sent shivers when the court ruled that it would forge ahead even though we were not responsible for Adv Mda’s condition.”
Supt Mofolo also accused lead prosecutor, South African Adv Shaun Abrahams, of “scaring” them after the court proceedings on 27 April 2021.
He alleged that Adv Abrahams said to them, “your lawyer (Adv Mda) is wasting your time”.
On that day, Adv Thulo Hoeane had been appointed to represent Supt Mofolo, Insp Matona and PC Taasoane on a pro deo basis. This is an arrangement where the state selects and pays the legal fees for a lawyer to represent suspects who cannot afford to pay for themselves.
However, the trio rejected him saying that Adv Mda was still their lawyer.
On that day Adv Khosi Lesutu had also been appointed to replace Adv Mohau who had withdrawn his representation for SSP Tšukulu on the grounds that he had not been paid by the state as he was representing him on a pro deo basis.
However, Adv Mohau returned as SSP Tšukulu’s lawyer yesterday. Adv Abrahams objected to this, saying Adv Mohau could not just “miraculously reappear” when he had formally withdrawn from the case.
“Mr Mohau withdrew his representation and he miraculously appears today. He needs to clarify on record what transpired,” Adv Abrahams argued.
Adv Mohau countered that he was no longer representing SSP Tšukulu on a pro deo basis but he had returned after being hired by SSP Tšukulu’s wife.
“After my withdrawal, Mr Tšukulu had counsel appointed for him on a pro deo basis. As we speak, that counsel has not consulted with him even though he knew that the matter was proceeding today. His (Tšukulu) wife pleaded with me to conduct his defence because there was no way her husband would be properly represented. We filed the notice of appointment yesterday (Tuesday) so our appearance is not miraculous. I do not see the relevance of my learned friend (Adv Abrahams) needing to know about my appointment,” Adv Mohau submitted.
Justice Hungwe then postponed the trial pending his recusal hearing.
“These are criminal proceedings and the trial judge sets the rules. I am avoiding the risk of procedure being abused if the trial judge doesn’t preside effectively.
“I am putting you to strict terms. The Crown will file its answering papers tomorrow (today) at 8am. Mr Mda will reply on Friday at 3pm and the matter will be heard on Monday at 9.30am. I will deliver my ruling the following day (11 May 2021),” Justice Hungwe ordered.
This is not the first time that the accused police officers and other members of the security agencies have delayed trials by applying for the recusal of Justice Hungwe and his Botswana counterpart, Onkemetse Tshosa. Their previous applications have been thrown out but they continue to file more applications. Some sources have claimed the suspects want to delay their trials as long as possible in the hope that a more amenable government will take power and permanently stop their trials.
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