Court of Appeal nullifies secret bail, High Court orders fresh hearing before same Judge

MASERU

The High Court has ruled that the fresh bail application by retired Commissioner of Police (COMPOL) Molahlehi Letsoepa, who stands accused of the murder of Police Constable Mokalekale Khetheng, will be heard by Justice ’Mafelile Ralebese, the same judge who previously granted him bail before the matter was reversed on appeal.

The ruling was delivered this week following heated legal arguments over the interpretation of an earlier order by the Court of Appeal, which had set aside Letsoepa’s bail and declared the original proceedings a nullity.

At the centre of the argument was whether the Court of Appeal, when it ordered that the matter be settled to the High Court to be heard afresh and in open court, intended that the bail application should be placed before a different judge altogether.

The prosecution, represented by the office of the Director of Public Prosecutions (DPP), strongly argued that the matter should not return to Justice Ralebese. The DPP maintained that because the Court of Appeal had nullified the earlier bail proceedings, the application ought to start on a “clean slate” before a different judge to avoid any perception of bias or preconceived views.

However, the High Court rejected that argument, ruling that nothing in the order of the Court of Appeal expressly required that the bail application be heard by a new judge. The court held that Justice Ralebese remains properly seized with the matter and is competent to hear the application afresh, provided that it proceeds in open court and in accordance with established legal norms.

The ruling clears the way for the controversial bail application to be argued anew, this time under intense public scrutiny, following months of legal arguing and emotional reactions from the family of the deceased police officer.

Letsoepa’s fresh bail bid comes after the Court of Appeal, during its October sitting, reviewed and set aside the High Court order that had admitted him to bail. In a strongly worded judgment, the appellate court declared the bail proceedings a nullity and ordered that the matter be remitted to the High Court for a fresh hearing conducted openly.

The Court of Appeal found that the original bail hearing had taken place in chambers, without the involvement of the family of the late Constable Khetheng, who had a direct and substantial interest in the outcome. The judges ruled that, in the absence of exceptional circumstances, hearing bail applications in chambers is irregular and unlawful.

“The proceedings were conducted in secrecy,” the appellants argued, insisting that such an approach undermined transparency, fairness and public confidence in the administration of justice.

The appeal was brought by members of Khetheng’s family, who challenged the legality of the bail proceedings and questioned how such a serious matter, involving the alleged murder of a police officer, could be handled behind closed doors.

In upholding the appeal, the Court of Appeal emphasised the importance of openness in criminal proceedings, particularly in bail applications that have far-reaching implications for both the accused and the victims’ families. It ruled that the High Court had made a mistake by entertaining the bail application in chambers without exceptional circumstances to justify such a departure from normal practice.

As a result, the appellate court nullified the bail order and directed that the matter be reconsidered afresh, in open court, and according to the norm.

Following that ruling, Letsoepa filed a fresh bail application at the High Court. However, before the merits of the application could be canvassed, the prosecution raised a preliminary objection, insisting that the matter should be assigned to a different judge.

The DPP argued that since Justice Ralebese had already expressed herself on the bail application during the earlier proceedings, it would be inappropriate for her to hear the matter again. According to the prosecution, the phrase “heard afresh” in the Court of Appeal order implied a completely new process before a different judicial officer.

The defence, on the other hand, dismissed the prosecution’s interpretation as strained and unsupported by the wording of the appellate court’s order. They argued that a matter being heard afresh does not automatically require a change of judge, especially where the earlier proceedings were nullified on procedural grounds rather than on the merits.

In its ruling, the High Court agreed with the defence position. The court held that the Court of Appeal had been clear in its criticism of the procedure followed, namely, the decision to hear the bail application in chambers, and not the identity of the judge who presided over it.

The court further noted that judges are trained to approach matters impartially and to apply their minds afresh where required to do so by law. It concluded that Justice Ralebese is capable of reconsidering the bail application without being influenced by the earlier, now-nullified proceedings.

The decision means that Letsoepa’s bail application will proceed before Justice Ralebese, but this time in open court, where the prosecution, defence and interested parties, including the family of the deceased, will be afforded an opportunity to participate.