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Mohalenyane Phakela
Alleged M50 million fraudster, Lehlohonolo Selate, will spend at least a month more in prison while awaiting the fate of his bail decision.
This after High Court Judge, ‘Maliepollo Makhetha, reserved her ruling on whether the High Court has jurisdiction to entertain the Director of Public Prosecutions (DPP) Hlalefang Motinyane’s appeal against a magistrates court decision to grant him bail.
Selate was granted bail by Maseru Resident Magistrate, Nthabiseng Moopisa, on 11 April 2023 after he was hauled before court over charges of defrauding Standard Lesotho Bank of M460 000 in 2018. She released him on M10 000 bail and M150 000 surety.
Selate had been arrested over the alleged M460 000 fraud shortly after his release over a different case in which he is accused of having been the mastermind of a scam in which the government was defrauded M50 million through payments for fictious supplies. He had been in custody over that case since October 2021. Magistrate ‘Matankiso Nthunya had released him in that case – in terms of the Speedy Court Trials Act – on account of the state’s failure to prosecute him since his incarceration.
Magistrate Moopisa argued that the Crown could have charged Selate during the period he was already in detention, instead of waiting to re-arrest and charge him after his release on 3 April 2003. The Crown’s behaviour proved a vendetta against Selate, she said in justifying her decision to release him.
But DPP Motinyane had successfully interdicted Selate’s release at the High Court, pending determination of her application to stay the bail decision because Selate is an alleged career criminal who might interfere with witnesses once released.
On Friday, Selate’s lawyer, Rethabile Setlojoane, argued that the High Court lacked jurisdiction to entertain the DPP’s bail appeal. He argued that section 108 of the Criminal Procedure and Evidence Act (CP&E) only guaranteed an accused person to appeal if he is denied bail but not the Crown. He said the Crown could only seek review of the bail and not appeal against it.
“As much as the Constitution says that the High Court has inherent jurisdiction, that jurisdiction is not limitless, it is circumscribed by legislation. Section 108 of the CP&E clearly says that when an accused feels aggrieved by denial of bail, he may appeal the subordinate court’s decision before the High Court. The section is clear as to who can appeal. It does not cater for the Crown (to appeal),” Advocate Setlojoane argued.
“The Crown can only appeal against convictions or sentences….The law does not allow the Crown to note an appeal in relation to bail. In law, there is therefore no appeal application before you (Justice Makhetha). The court therefore has to dismiss (the appeal) against my client’s bail.”
However, Crown Counsel, Dominic Metlae, counter-argued that Magistrate Moopisa’s bail ruling had a “final effect” and was therefore appealable. It was also appealable because the magistrate had failed to properly apply the law to the facts.
“Bail proceedings are interlocutory and such interlocutory applications are appealable if they have a final effect. This bail is only interlocutory in the sense that it relates to the main trial but has no bearing on the trial itself. One can (also) note an appeal where he feels there has not been a proper application of the law to the facts, as is in this case hence we are before this court.
“ There should be a (specific) law to say why the Crown cannot appeal a bail verdict…..(but there is no such law). The bail decision is therefore final and appeals are noted against final decisions….,” Adv Metlae submitted.
After the two parties had completed their submissions, Justice Makhetha reserved judgement to an unspecified date but said she would rule after at least a month.
“Judgement is reserved and will be delivered within a reasonable time. Please check with my clerk after a month from now,” Justice Makhetha said.
Selate is charged alongside Ntseliseng Lawrence, Mookho Rafono, Tlali Mokoaleli, Thabang Nkoe, Hlabathe Phafoli, Thithili Makhesi, Maqoboto Lepolesa, Fako Molefe and Karabelo Makara in the M50 million fraud case.
They allegedly defrauded the government by “by purporting to pay for services rendered to the government whereas it was for their own personal gain”. Selate and others allegedly connived with their co-accused working in the ministry of finance.