Justice Molefi Makara on Tuesday recused himself from a case in which 22 soldiers want army commander Lieutenant-General Tlali Kamoli jailed for contempt of court.
The soldiers were arrested between May and June this year for suspected mutiny and are detained at Maseru Maximum Security Prison.
However, on 5 October, the judge ruled their detention was illegal and ordered their release and placement on open arrest.
Justice Makara also said the suspects should attend their ongoing Court Martial proceedings from home.
But despite the order, the soldiers remain in prison, prompting their contempt application on 2 November.
The case was supposed to be argued before Justice Makara on 20 November, but Lt-Gen Kamoli’s lawyer, Attorney Qhalehang Letsika, informed the judge that the commander wanted him off the case for fear of bias.
The lawyer argued Justice Makara was likely to be biased against Lt-Gen Kamoli after the judge expressed anger, in chambers, over criticism leveled against him over a local radio station. The criticism concerned the judgment Justice Makara had made in the soldiers’ first contempt application.
Justice Makara on 16 October ruled the LDF chief was not in contempt for not releasing the soldiers despite his 5 October ruling ordering him to do so. The judge noted Lt-Gen Kamoli might not have clearly understood the order hence his failure to release them.
It was this decision which was criticised on radio, with the criticism prompting the judge to summon crown and defence lawyers to his chambers.
On Tuesday, Justice Makara told the packed courtroom he was taking himself off the case not because of what had been alleged in the recusal application submitted by Attorney Letsika but the “collapsed” relationship between him and some of the lawyers involved in the case. To support his recusal application, Attorney Letsika submitted an affidavit detailing what had gone down in the judge’s chambers on 5 November.
“If I am quoted to have said I would imprison the commander if circumstances allow, the court should place itself in the shoes of that person as he might perceive I am threatening to imprison him,” Justice Makara said as he announced his recusal.
“I have considered that the administration of justice is bigger than myself and I should not be an obstruction.
“For the reasons I have stated, that is, the collapse of relationship between me and the lawyers, lack of confidentiality and ultimately the perception of the public, particularly the impression radiated to the commander, in the premise and with a heavy heart, I find it unavoidable and in the interest of justice to recuse myself. And with the very same heavy heart, I retire from this case.”
The judge also said he was disappointed by Attorney Letsika’s disclosure of a conversation that took place in his chambers.
Meanwhile, because of Justice Makara’s recusal, a new judge would need to be assigned the case. It was not immediately clear when such an appointment would be made.
Attorney Letsika’s affidavit
‘On or about 4 November 2015, I received a telephone call from the judge’s clerk, Mr (Eric) Ramalefane, in terms of which he informed me that his Lordship, Mr Justice Makara, would like to see us with the other side representing the applicants in this matter.
‘I duly complied. On or about 5 November 2015, we convened in his chambers. In that meeting, counsel for the applicants Messrs (Christopher) Lephuthing and (Koili) Ndebele, were present.
Justice Makara told us that he was furious because someone, whose identity he did not disclose, had made certain remarks on Harvest FM radio station about the fact that he initially granted an order directing the release of the applicants but that he subsequently did not find the commander guilty of contempt of court.
The exact words that were used by this individual relating to us by His Lordship were so egregious that they amounted to scandalising the court.
The learned judge had every reason to be agitated. However, it is the remarks which he made during the meeting that have made the respondents (Lt-Gen Kamoli, Defence Minister Tšeliso Mokhosi, Attorney General Tšokolo Makhethe, Court Martial President Major-General Mojalefa Letsoela, and Court Martial Prosecutor Roland Suhr) concerned that he is not likely to bring an impartial decision in the matter.
Alternatively, the respondents perceive that he is likely to seek to show that he can make an order finding the commander of the LDF guilty of contempt of court.
It is because in our meeting, the learned judge made it plain that the speaker was wrong to have accused him of failing to discharge his judicial duties because he does not and would not fear to send the commander to jail if he had to.
We advised the judge to stop making such remarks but seek legal alternatives against the individual who criticised him over the radio.
The judge was advised to consult the Attorney General and Director of Public Prosecutions (DPP) on the matter.
But he was reluctant to pursue this route because he kept saying he would consult his own lawyers.
He was told that his remarks may create the perception that if he finds the commander of the LDF guilty of contempt, it would be to show the public that he could do it or that if he does not find him guilty it would be because he was afraid to do so as had been suggested over the radio.
I must confess that I do not want, for professional reasons, to divulge full details of the remarks of the learned judge to avoid embarrassing him.
It is significant though, to indicate that the issue of the person making remarks about him on Harvest FM made him understandably very furious with the consequence that he made the presenter of the programme in question to appear before him.
This is a clear indication that he took the comment by the person who spoke on radio, in very serious light.