Lesotho Court of Appeal Orders Retrial in Khofu Corruption Case

The Lesotho Court of Appeal has made a significant ruling in the Khofu corruption case, ordering that the trial start afresh before a different High Court judge. This decision was made after the accused, Mohapi Khofu, Thelingoane Liotlo, and Refela Holdings (Pty) Ltd, appealed the High Court's dismissal of their application seeking the recusal of Justice 'Mabatšoeneng Hlaele. The accused argued that Justice Hlaele's alleged remarks created a perception of bias, and the Court of Appeal has now agreed that she ought to have recused herself.

The case involves allegations of corruption related to the rural water supply and sanitation project at Ha Khanye in Botha-Bothe. The accused are alleged to have misrepresented that certain phases of the project had been completed by Refela Holdings in 2016 and 2017, and claimed payment for work said to have been completed. The Government of Lesotho paid the company M1,857,221.51, approximately US$110,500. The accused have yet to be convicted of the allegations, and the charges remain to be determined by the High Court.

The Court of Appeal's majority judgment, delivered by Justices Tekane Maqakachane and Realeboha Mathaba, found that Justice Hlaele's alleged statement created a perception of bias against the accused. The judges stressed the importance of maintaining public confidence in the fairness and impartiality of judicial proceedings. The court's concern was not simply whether the judge believed she could remain impartial but also whether her conduct and remarks could create a reasonable perception of bias in the minds of the accused and the public.

The Court of Appeal's decision sets aside the High Court order that had dismissed the recusal application and replaces it with one granting the application and directing Justice Hlaele to withdraw from presiding over the case. The matter has been sent back to the High Court, where it must start afresh before a different judge. This means that the corruption case will have to begin de novo, a legal term meaning that proceedings must start again as if the earlier trial had not taken place.

The ruling does not amount to an acquittal of the accused or a finding that they are innocent of the corruption charges. Instead, it addresses concerns about the impartiality of the judge who was handling their case. The decision is a significant development for the accused, who had been seeking to have the matter heard by another judge after raising concerns about Justice Hlaele's alleged remarks.

The appeal was not unanimous, with President of the Court of Appeal Professor Kananelo Mosito disagreeing with the majority decision. Professor Mosito indicated that he would have dismissed the appeal and upheld the High Court's decision refusing to grant the recusal application. The majority judgment therefore stands as the decision of the Court of Appeal.

The case will now return to the High Court for further proceedings, with the new judge expected to hear the matter independently, without being influenced by the previous proceedings. For the accused, the ruling means they will have an opportunity to have their case heard afresh before a different judicial officer. For the prosecution, it means presenting its case again as the long-running corruption matter takes another turn in the courts.

Key points

• The Court of Appeal has ordered a retrial in the Khofu corruption case due to perceived bias by the original judge.
• The case involves allegations of corruption related to a rural water supply project in Lesotho.
• The retrial will start afresh before a different High Court judge.