Chief Magistrate ’Matankiso Nthunya has recused herself from a case in which former law and constitutional affairs minister, Mootsi Lehata, is accused of raping a minor.
Lehata, 49, is currently on a M500 bail after he first appeared before the Maseru Magistrate’s Court on July 10, 2018, on a charge of raping a 17-year old school girl.
The girl has since given birth to now a four-month-old baby as a result of the alleged rape, the MNN Centre for Investigative Journalism learned this week.
A member for the main opposition Democratic Congress, Lehata was a legislator for Makhaleng constituency and a minister in the previous seven-member coalition government led by former prime minister Pakalitha Mosisili, that was ousted by the current administration following the June 3, 2017 elections.
He is charged for contravening provisions of the Penal Code Act of 2010, in that “upon or about 19 January 2018, at or near Ha-Moima, Sehlabeng Sa Matsieng, in the district of Maseru, the said accused (Lehata) did unlawfully and intentionally have sexual intercourse with the minor – a Mosotho female aged 17 (years) without her consent.”
Following several postponements since July last year, the case was set to resume last week Thursday, but only to be postponed again to June 13, 2019, because the presiding Nthunya was absent due to ill health.
It is that absence of the chief magistrate and a further delay of justice that has led to a commotion between parties in the matter, forcing Nthunya to resign from the case on Tuesday this week, the Center can reveal.
Following the Thursday postponement, the Beautiful Dream Society (BDS) – an organisation that assists victims and survivors of rape, human trafficking and gender-based violence – petitioned the High Court Registrar Pontšo Phafoli, seeking intervention of Acting Chief Justice ’Maseforo Mahase over the delay.
BDS has direct interest in the matter as it currently provides protection and shelter to the girl and her baby.
In the letter dated February 21 and addressed to Phafoli, BDS wrote it felt there was “a risk of miscarriage of justice and undue unfairness to both the victim and her infant” due to the postponement. The letter is endorsed by the BDS Assistant Director ’Malehlohonolo Selometsi.
On Thursday morning, Selometsi said they had waited with the victim and her infant behind the court when they were approached by two police officers telling them they were instructed by Nthunya to move to the other side of the court.
“It becomes baffling therefore that the same person was available then but unavailable to hear the case. We are therefore concerned about the safety of the survivor/complainant and the upkeep of a child that was born as a result of the said rape in the interim,” noted Selometsi.
She added they had attempted to keep the survivor in safe custody in South Africa “but the perpetrator (Lehata) was able to access her and we feel the time between now and the proposed date (June 13) leaves too much time and space for further contact and frustration of the victim.
“We are, thus, afraid that he may still be able to access her again while awaiting the said hearing date. We are unable to place these concerns before the Chief Magistrate as she was said to be unavailable today. We would like to be given a direction as to how the survivor and the child can be assisted”.
The letter was copied to both Mahase and Nthunya.
But in a turn of events, the BDS wrote directly to Nthunya on Monday this week withdrawing the petition and appealing to the chief magistrate to move hearing date of the matter closer, but that was too late.
Nthunya told the Center in an interview on Tuesday that she was disappointed with contents of the petition, which she argued were presumptuous.
She said she had genuinely absented herself from duty due to ill health “and I had discussed that with the court manager (’Mampai Masoabi) to communicate that with the prosecution and the defence teams and arrange for another date. Because I was literally absent, there is no way I could have instructed ‘two police officials’ to move the BDS people and the victim and her child from a certain area to another”.
In fact, Nthunya told the Centre at the time she instructed Masoabi to arrange for a postponement of the matter with the relevant parties, it had not been brought to her attention that the matter she was supposed to preside on Thursday was a crucial and urgent rape case between Lehata and the girl.
“In my diary (which she showed content to the Centre) the matter mentioned in details, only the case number appears. The court manager was not able to even say clearly in the diary whether the matter was civil and or criminal. Should I have known it was this crucial case, I could have arranged for an urgent plan,” the chief magistrate said.
Masoabi also explained to the Centre the reason why she had not put details of the case in the diary was because “it was a transfer case from last year’s records to this year, and I was not aware of its further details other than the case number”. Masoabi also confirmed Nthunya was absent from duty on Thursday.
At the time BDS withdrew their petition on Monday, Nthunya told the Centre she had already made up her mind to quit the case “in the interest of fairness and justice”.
To show her compassion for the case, the chief magistrate has not just quit; she referred it to the Acting Chief Magistrate – South Region Manyathela Kolobe, “because the matter is deserving of the chief magistrate’s jurisdiction”.
In the letter dated February 25 and addressed to the chief magistrate, BDS asks for “kind assistance in moving the matter to an earlier date and addressing the issue of the accused being in breach of his bail conditions,” by allegedly contacting the complainant in South Africa.
“We thus withdraw the letter addressed to the Registrar of the High Court and copied to Your Worship (Nthunya) as it will no longer be of relevance,” noted Selometsi in the letter that was also copied to Public Prosecutor Qcinumuzi Tshabalala.
BDS further informed the chief magistrate that the girl had also instituted a maintenance case against Lehata in the Children’s Court.
Nthunya responded the same day, noting: “I am in receipt of your letter dated February 25, 2019 seeking assistance to speed up the above matter that is before me. I had received a copy of your letter to the Registrar, which you now seek to withdraw.
“However, I had made up my mind following receipt of that letter that I should in fact recuse myself from this case in the interest of justice for your client and her child. I still feel I should, and with this letter, wish to advise you so.
“I have asked Acting Chief Magistrate Manyathela Kolobe to preside over this matter and he has agreed to. The reason for my request to him being that because of the seriousness of the allegations against the accused, I believe it deserves the Chief Magistrate’s jurisdiction.
“I would, therefore, ask you to contact the prosecutor responsible for the matter to approach both Mr Kolobe and the defence counsel (Attorney Qhalehang Letsika) to set the matter down and give it the urgency it deserves”.
Tshabalala has confirmed in an interview with the Centre that they would soon meet together with Letsika and Kolobe to agree on a closer date for hearing of the matter.