As court throws out Tšukulu’s discharge bid
Moorosi Tsiane
FORMER Hlotse Police Station commander, Senior Superintendent (SSP) Thabo Tšukulu, has suffered a major setback after the High Court ruled that he played a central role in the 2016 murder and subsequent cover-up of Police Constable (PC) Mokalekale Khetheng’s killing.
SSP Tšukulu’s hopes of being discharged from the murder case were dashed this week when Justice Charles Hungwe ruled that he and his co-accused had a case to answer.
SSP Tšukulu had applied for discharge alongside his co-accused, Senior Inspector (S/Insp) Mabitle Matona and Sub-Inspector (Sub-Insp) Haleokoe Taasoane. The fourth accused, Inspector (Insp) Mathibeli Mofolo, did not apply for discharge.
All four are accused of murdering PC Khetheng in March 2016 and dumping his body in Ha Setho, on the outskirts of Maseru.
Following the closure of the Crown’s case last month—led by Director of Public Prosecutions (DPP) Hlalefang Motinyane—the defence, represented by Advocates Karabo Mohau KC and Zwelakhe Mda KC, applied for the discharge of three of the accused.
The matter was heard on Monday, with Adv Mohau arguing that none of the 21 witnesses called by the Crown had produced evidence amounting to a prima facie case against his client, SSP Tšukulu.
“…the nature of the evidence that has been led against accused number one (Tšukulu), we submit, is such that no reasonable court, properly advised, could possibly convict this accused person. To ask the accused to enter the witness box in his defence to answer such evidence would amount to inviting him to say something that could bolster the Crown’s case and thereby implicate himself,” submitted Adv Mohau.
He further argued that this would be contrary to Section 12 of the Constitution of Lesotho, which guarantees the right to a fair trial, including the right to remain silent and protection against self-incrimination.
Adv Mda made similar submissions, stating that no reasonable court could convict the accused based on the evidence presented.
However, DPP Motinyane maintained that a prima facie case had been established against all the accused, warranting that they be called to answer the charges.
After hearing arguments from both sides, Justice Hungwe reserved his ruling for Tuesday.
When the matter resumed, the judge agreed with the Crown that sufficient evidence had been led for all the accused to answer to the charges.
Judge Hungwe then ruled in favour of DPP Motinyane, stating that a prima facie (straight forward) case had indeed been established against all the accused, requiring them to answer to the charges.
“Bearing in mind that at this stage the question is whether, if the evidence is believed, a reasonable court could convict. As the officer in charge on the day, Tšukulu was informed of the arrest and failed to ensure proper registration of Khetheng in the charge office. He later admitted the arrest to former Hlotse Commander, Senior Superintendent Phahla Letsosa (the first state witness), and indicated that Mofolo, Matona, and Taasoane would interrogate Khetheng,” Justice Hungwe said.
He continued: “The evidence on the face of it suggests that Tšukulu orchestrated efforts to cover up the incident, including instructing subordinates to give false testimony in the habeas corpus proceedings. It supports a prima facie case of unlawful arrest, abuse of office, obstruction of justice, and conspiracy. He later misled the court and influenced witnesses, particularly Thulo and his mother, to give false evidence. His direct involvement in both the custody and concealment of Khetheng’s fate establishes a prima facie case.”
Justice Hungwe also said the court was not, at this stage, determining whether the prosecution had proven its case beyond a reasonable doubt.
“The applicable standard at this stage is not to determine whether there is proof beyond a reasonable doubt, but whether there is evidence upon which a reasonable court, properly directed, might convict. This does not require proof beyond a reasonable doubt but demands that the evidence, if accepted, could sustain a conviction.
“To meet this standard, two criteria must be satisfied. First, the evidence must establish a prima facie case, meaning that the State must present some evidence on each element of the offence charged—either direct or circumstantial—which, if believed, would establish guilt.”
The judge pointed to testimony from more than 20 Crown witnesses, particularly SSP Tšukulu’s predecessor, SSP Phahla Letsosa, who said he had left Tšukulu in charge of the police station on 26 March 2016. Upon his return the next day, he found Tšukulu visibly distressed. At that time, SSP Tšukulu was his deputy.
“When he asked what the problem was, Tšukulu told him he should not have come to the station and informed him that Constable Khetheng had been arrested. He further told his superior that Khetheng was being interrogated by Mofolo, Matona, and Taasoane. Later, Tšukulu reported that Khetheng had died during interrogation on that same day.”
The judge further clarified that credibility assessments of witnesses are not required at this stage unless the evidence is “manifestly false or inherently unreliable to a degree that no reasonable court could convict”.
“In the present case, the evidence led by the Crown, if accepted, materially implicates the accused. Accordingly, the court finds that a prima facie case exists. It is therefore ordered that the application for discharge brought by the three accused is dismissed, and each accused is called upon to enter their defence,” ruled Justice Hungwe.
It had been expected the matter would proceed yesterday. However, the defence requested the opportunity to study the police occurrence book of the day PC Khetheng was arrested and also requested the police officer who signed it to be availed. The matter will now proceed on 4 August 2025 with the defence presenting its case.
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