Argument over the jurisdiction of the Magistrate Court to preside over the escape from custody case of former Second Lieutenant Phakiso Molise continued at the Maseru Magistrate’s Court on January 16.  

Defence Counsel Advocate Zwelakhe Mda filed an application on January 11, just before the accused could plead to their charges, challenging the jurisdiction of the Magistrate Court to preside over the case.

Advocate Mda argued that the Magistrate’s Court had no jurisdiction to hear the case because the constitutional issues raised by the former Presiding Officer of the case, Mr. Nthabi, to the high court, had not yet been judicially dealt with by the high court.

In principle the matter was still pending before the high court. The correspondence from the Chief Justice through the Registrar of the high court to the Magistrate's clerk of court could not be regarded as a judicial directive in response to the issue raised by Mr. Nthabi.

Advocate Mda was referring to a “savingram” from the Chief Justice through the Registrar to the Magistrate's clerk of court which, among others, explained that Mr. Nthabi's issue was irrelevant to the case. Mr. Nthabi had challenged the constitutionality of him presiding over the case.

Chief Magistrate Mr Molefi Makara had just announced that he would preside over the case on January 11 when the defence moved the application.

Director of Public Prosecutions Mr. Leaba Thetsane said the application was argued by the defence as if the Magistrate Court was sitting in its appellate jurisdiction. If the high court had responded un-judicially, there are other procedural ways by which the defence could have approached the matter other than placing such an application before the Magistrate Court.

The application lacked merit and has been misplaced before the Magistrate court.

The case was being delayed as Molise was re-arrested in January last year after he had escaped from lawful custody and the case never started. The delay of the case did not only prejudice the prosecution, but also the accused.

The application is before Chief Magistrate Mr. Molefi Makara.

17 January 2006