Lesotho court clears Shaun Abrahams of delaying proceedings in treason case

The case involves charges of treason, murder, attempted murder and assault which have been levelled against Lesotho’s former army commander Lieutenant-General Kennedy Kamoli and five others.

Shaun Abrahams briefs the media at the NPA headquarters. Picture: Kayleen Morgan/EWN

JOHANNESBURG - Controversial former national director of public prosecutions (NDPP) Shaun Abrahams has been vindicated after Lesotho’s highest court overturned a scathing ruling the country’s chief justice handed down in January barring him from appearing in a high-profile treason case.

The case involves charges of treason, murder, attempted murder and assault which have been levelled against Lesotho’s former army commander lieutenant-general Kennedy Kamoli and five others. Abrahams was roped in by the Basotho prosecuting authorities to assist with it and with a number of other important cases as lead prosecutor in 2020.

In January, though, Chief Justice Sakoane Sakoana, who is presiding over the case, found Abrahams guilty of various transgressions under the Speedy Court Trials Act, which outlaws frivolous and meritless applications as well as the making of false statements aimed at delaying court proceedings. As punishment, the chief justice ordered that Abrahams was no longer allowed to prosecute the case.

This on the back of Abrahams having missed a scheduled court date a week earlier due to commitments in court in South Africa and a colleague being sent in his place to apply for a postponement, which the chief justice ultimately refused to hear in any case, after which Abrahams’ colleague withdrew.

Following on from the chief justice’s ruling, the Basotho Director of Public Prosecutions (BDPP), Hlalefang Motinyane, lodged an application for him to recuse himself on the grounds of there being a reasonable apprehension of bias against the state on his part.

The chief justice, however, dismissed that application.

The BDPP then approached the Lesotho Appeal Court, where a bench of three judges this month overturned both the chief justice’s findings and sanction against Abrahams as well as his ruling on the recusal application.

The Appeal Court’s judgment, which was penned by Judge Moses Chinhengo, essentially found that Abrahams had nothing to do with the postponement application that his colleague had attempted to move.

“The person targeted for sanctioning under … the Speedy Court Trials Act is not the litigant but the lawyer who moves the application knowing or ought to be knowing that it is frivolous and without merit and that it is intended to cause delay to the proceedings. That lawyer was [Abrahams’ colleague] and none other,” wrote Chinhengo,
“The inquiry should therefore have been conducted in respect of [Abrahams’ colleague] and the input of the DPP and Adv. Abrahams into the application, if any, would have been used as evidence to prove [Abrahams’ colleague’s] state of mind at the time that he lodged or moved the application so as to find a transgression on his part. That did not happen”.

Chinhengo also found the Chief Justice had erred in attributing statements made by the DPP in an earlier affidavit explaining Abrahams non-availability, to Abrahams himself.

Further, he found the Speedy Trial Act didn’t provide for sanction in the form of permanently excluding a legal representative from a case only for excluding him or her from appearing in the High Court for a period not exceeding 90 days.

When it came to the recusal application, meanwhile, Chinhengo again found in the DPP’s favour.

“I have carefully considered the complaints by the DPP in the light of the facts of this case. I have kept in mind that it is not a small matter for the DPP, in effect the Crown, to apply for the recusal of the Chief Justice of the country from presiding over a case of such high-profile nature. I have considered the predicament in which the DPP would be placed by the removal of the lead counsel in so important a trial and the prejudice that the Crown is likely to suffer. I have also considered the ramifications and untenability of a finding, on the one hand, that the exclusion of Advocate Abrahams was not justified and directing, on the other, that he continues with his mandate in a court presided by the Chief Justice without requiring the chief justice to recuse himself,” he said,

“All these I have considered in seeking to answer the question whether or not the DPP’s apprehension that the Chief Justice will not bring an impartial mind to bear on the trial is reasonable. I have come to the conclusion that in all the circumstances of this case the Chief Justice should have acceded to the request for his recusal”.

Abrahams has welcomed the ruling.

“I’m extremely pleased with the ruling of the Lesotho Court of Appeal and am looking forward to proceeding with the matter once reallocated to another judge for hearing and a trial date scheduled,” he said.

“I was always confident that the ruling of the chief justice jettisoning me from the matter would be set aside on appeal along with his refusal to recuse