MASERU — The trial of seven men who allegedly attempted to assassinate Prime Minister Pakalitha Mosisili in 2009 took a new twist in the High Court this week when their lawyer argued that the court had no jurisdiction to prosecute them.
On Tuesday Haae Phoofolo, their lawyer, said the seven could not plead because they had been illegally extradited from South Africa.
The suspects also did not plead on the same grounds.
However, the other two accused, Solomon Mabasa and Antonio Lopes, represented by Attorney Molefi Ntlhoki, pleaded not guilty to the charges before Justice Thamsanqa Nomncongo.
Lopes and Mabasa are not part of the seven who claim to have been brought here illegally.
Alberto Makwakwa, Fransisco Alberto Mandlate, Mangani Malenge, Abel Nhatsave, George Thomas, Angelo Mondlani and Rocky Masinga, arrived in Lesotho on April 19, 2011 after being extradited from South Africa.
The group together with Mabasa and Lopes are standing trial for 31 counts that include murder, kidnapping, robbery, attempting to murder Mosisili and the commander of the Lesotho Defence Force.
Phoofolo told the court that the seven could not plead because they are challenging the High Court’s authority to prosecute them.
“It it important that we are given an opportunity to file an application to challenge the extradition order as to whether they came to Lesotho properly because they cannot plead,” Phoofolo argued.
“The only plea they can make is that this court has no jurisdiction”.
He said he wanted the case postponed so he could consult his clients.
His suggestion did not go down well with the Director of Public Prosecutions (DPP), Leaba Thetsane, the prosecutor, who argued he had come prepared to proceed as the court had indicated when the case was postponed last October.
What followed was a stalemate that triggered a trial-within-a-trial.
Thetsane then said the crown was ready to call the first witness to prove that the seven suspects had been properly extradited from South Africa and were in Lesotho legally.
It was at this point that he produced a ministerial order signed by South Africa’s Minister of Justice and Constitutional Affairs Jeff Radebe.
Phoofolo told the court that although he was seeing the order for the first time that did
not mean it could not be challenged.
Yesterday Phoofolo told the court that his clients had decided to plead not guilty but still insisted that the High Court did not have the authority to prosecute them.
This was when the crown’s first witness Detective Senior Inspector Bocalasa Senooe, who is the head of the Special Unit Investigations in the Criminal Investigations Department, entered the witness box to corroborate evidence that the seven had been properly extradited.
Senooe, a qualified lawyer, told the court that he would deny very strongly that the seven are in Lesotho illegally.
“It would be an incorrect averment that the suspects have been brought to Lesotho contrary to the provisions of the extradition treaty between Lesotho and South Africa,” he said.
He said that even when the suspects were handed over to him at the border post by Detective Warrant Officer Van Heever of International Police in Pretoria, none of them complained that he was being illegally surrendered to Lesotho.
The seven were part of a gang of 16 suspected mercenaries that attacked State House and Makoanyane Military Barracks on April 22, 2009.
Four of the suspects were killed in a fire exchange with the Lesotho security forces while the other two were arrested before they could flee to South Africa.
The other 10 were arrested in South Africa on separate occasions.
Mokotoko “Mashai” Lerotholi, who was alleged to have led the attack, was later arrested in Pretoria but died before he could be extradited to Lesotho.
The other 10 men were arrested in the area around Ladybrand, a small farming town near Lesotho’s border with South Africa.
One of those arrested near Ladybrand turned state witness while the other was released for lack of evidence.
Senooe said after the seven were arrested extradition papers were filed through the office of the DPP and the matter proceeded in the Bloemfontein regional court.
He said he was present at the hearing in Bloemfontein in which the suspects were found liable for extradition to Lesotho.
The magistrate who presided over the extradition case told the suspects that they could appeal against his decision, he added.
Senooe said a few weeks after the decision he got a telephone call from South Africa that the suspects had appealed against the extradition ruling.
That appeal, he said, was heard on February 11, 2011.
He said he was present in court when the appeal was thrown out to pave way for their extradition.
Senooe said on April 13 this year he got a message from Interpol in Pretoria indicating that Radebe had signed the extradition papers.
The trial continues.