Court of Appeal dismisses mercenaries’ plea

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MASERU — The Court of Appeal on Friday dismissed an application by six men who were challenging the High Court’s jurisdiction to try them in a case in which they are accused of trying to assassinate Prime Minister Pakalitha Mosisili.

The six are accused of being among a group of mercenaries who mounted daring attacks on Makoanyane military barracks and Mosisili’s residence on April 22, 2009.

The mercenaries — Rocky Masinga, Franscisco Mandlate, Mangani Malenge, Angelo Mondlani, George Thomas and Abel Nhantsave — had argued that the High Court did not have jurisdiction to try them after they were illegally extradited to Lesotho from South Africa in April last year.

They argued that they were not afforded a fair hearing when they were arrested in South Africa before being repatriated to Lesotho to stand trial.

The Court of Appeal on Friday however dismissed the suspects’ special plea after hearing their evidence.

In a judgment prepared by Justice Douglas Scott, and signed by Judge Craig Howie and Judge Ian Farlam, the court said there is an extradition treaty between Lesotho and South Africa that was concluded in April 2001.

The court submitted that the appellants were surrendered to Lesotho after an application was made to the South African authorities for their provisional arrest.

“The appellants appeared in the magistrate’s court in Bloemfontein for remand on a number of occasions,” the Court of Appeal said.

The hearings for extradition commenced in the Bloemfontein Regional Court on July 22, 2010, and were concluded on July 30, 2010.

The court ruled that the six were therefore liable to be surrendered to Lesotho.

“They were afforded legal aid and were represented at the hearing by Advocate Nel.”

The accused then launched an appeal in the Bloemfontein High Court on January 31, 2011 and February 11, 2011.

This was dismissed.

On February 15 when the appellants appeared in the Bloemfontein magistrate’s court they were told of the decision of the High Court.

The matter was remanded to May 6, 2011 pending the final decision of the South African minister of justice and constitutional development.

The first accused, Rocky Masinga, the only witness to have gone into the witness box to testify, said he telephoned Advocate Nel who had argued his case in the High Court.

According to Masinga, they did not instruct Nel to appeal to the Supreme Court of Appeal, but merely requested that he furnish them with a copy of the judgment, which he did.

Masinga also said they made no attempt to seek legal aid to launch a further appeal but they made contact with their families and requested them to obtain the services of a lawyer for them.

He added that on March 13, 2011, they consulted with Advocate Paul Shapiro to lodge an appeal.

Shapiro indicated that he would consult with them on May 2011 at their next appearance in court, but an appeal was not noted.

On April 19, 2011 the appellants were removed from prison and taken to the Maseru border post.

According to Masinga, they learnt on April 6, last year that the South African justice minister had signed an executive order directing that they be surrendered to Lesotho.

The six’s legal representative, Haae Phoofolo, had argued that the South African authorities had disregarded his clients’ legal rights.

In dismissing the appeal Judge Scott said: “On the facts of the present case the criticisms levelled at proceedings in South Africa, are in my view, without substance.”

He said the decision of the High Court was made known to the appellants within four days of it being handed down.

“They did not instruct Advocate Nel to note appeal nor did they seek legal aid for the purpose,” the court said.

The court noted that there was nothing to prevent them from making written representations to the minister nor was there evidence that it was their intention to make such representations.

Justice Scott said their failure to do so was of their own making and dismissed their appeal.

Advocate Leaba Thetsane KC assisted by Advocates L. Mofelikoane and Tsoeunyane appeared for crown while Phoofolo represented the appellants.

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