Fight over defence fees in controversial Lesotho trial

19 September 2019 · Carmel Rickard

The Zimbabwean judge due to preside in Lesotho over a series of high-profile murder and attempted murder cases, has begun to stamp his authority on the matter. This week, Judge Charles Hungwe showed his patience was running out with the constant delays preventing the case proper from getting under way. Dealing with an application in the high court, Maseru, he held that that a decision by the high court registrar to allocate state-funded pro deo counsel to the accused, was not properly made and should be declared invalid.

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The long-delayed trial involves more than 30 members of Lesotho’s military and police. They are charged with a range of serious offences including murder and kidnapping, arising from an attempted coup in August 2014.

During July 2019, the registrar of the high court in Maseru decided to grant pro deo counsel for all the accused and later, to approve higher than usual payment rates for counsel involved. These decisions were challenged by the attorney general and the director of public prosecutions on the basis that they were irregular and thus unlawful.

Fees

The application, and the contested decision by the registrar, is part of a long-running prreliminary legal saga over which Zimbabwe’s Judge Charles Hungwe has presided. The issue concerns counsel and representation of the accused. After some initial skirmishes on the question of counsel, the scheduled pre-trial management meeting was held early in August 2019. The prosecution said it was ready to go ahead with the management meeting, but two members of the accused’s legal team said the question of fees had not yet been finalised.

They told the court that, according to the registrar, if they wanted an increase in the pro deo rates, they would have to apply to the trial judge. They told the court that counsel had had to turn down other work for this case, and they felt they were ‘entitled to appropriate compensatory fees for their effort.’ This had been approved before and there was no reason why it could not be done in this case, they said.

Public funds

Judge Hungwe said he could not deal with the matter ‘off-hand’ as it was a ‘novelty’ that private counsel, already drawing fees from a client, could be granted pro deo status, and further ask a court to increase the compensation that came out of public funds. He said he needed argument before he could decide the issue.

The dispute was postponed for argument but before the scheduled hearing, the director of public prosecutions said she was concerned about the registrar’s initial decision granting pro deo counsel to the accused and she wanted to file a review application to have that decision set aside.

‘Bizarre’

Then, as the judge complained was a regular occurrence in the court, the deadlines for filing opposition papers were not met. After the attorney general’s application was filed in court, counsel for the accused refused to accept service, saying they had no instructions to accept service or respond to the application. Since the usual practice was for all court papers to be served through appointed counsel, the refusal to accept service was both ‘wrong’ and ‘bizarre’, said the judge.

As a result of counsel’s stance, the matter had to go ahead as an unopposed application, said the judge.

Indigent

The accused had the constitutional right to legal representation of their choice at their own cost, and had done so, engaging the team that represented them. In January, the attorney general had received a letter from one of the team, representing three of the accused, asking to be paid fees higher than the prescribed legal tariff. The AG said that from the start the accused wanted to be represented by counsel of their choice, but at the expense of the state. This was despite the fact that the accused did not show they could not pay the fees themselves and that pro deo fees were ‘strictly for the indigent’.

In July, the registrar allowed the accused pro deo status, but said she could not increase the fees beyond the amounts laid down.

The attorney general argued that only three accused had applied for pro deo status, and yet it had been granted to all the accused. This meant the registrar had not considered their individual status and had thus not properly applied her mind to the question. Her decision had therefore been irregular and unlawful.

‘National purse’

Judge Hungwe commented that the registrar had not consulted the officials who ‘handle the national purse’ about whether the fees could be met by the state.

No opposition to the application was filed until the door of the court, way out of the time stipulated by the judge. He had thus decided not to accept the late opposition filing. It was ‘in flagrant disregard’ of the dates stipulated by the court and to accept a filing so out of time would condone ‘a serious breach of that order’.

The attorney general had made an ‘unassailable case’ for setting aside the registrar’s decision. It would have been ‘appropriate and legitimate’ and in no way impinging on judicial independence, if the registrar had asked the accused who wanted to apply for pro deo status to fill in the normal forms showing their financial status.

The accused could make another application to the registrar, he said, but that process ‘should not stall the progress of the main matter’. Judge Hungwe therefore set aside the registrar’s decision that pro deo funding would be made available to the accused, with no order as to costs.

Lax habits

Whether this dispute and its fallout will further impact on the increasingly complex preliminaries to the trial is still unclear, but the judge is obviously not impressed by what he sees as the lax habits at Lesotho's high court.

* According to sources close to the accused, they feel aggrieved because the Maseru government has pledged to involve top prosecutors to handle these cases related to the attempt coup, even bringing in a prosecutor from South Africa to help. Funds to do this have been sourced from the Southern African Development Community (SADC) and the European Union. But while the government has additional financial help to fight its battle against the accused, they (the accused) are not allowed to access resources that will put them on an equal footing. The accused are, in other words, claiming there should be 'equality in arms', which is why they are asking for the state to assist with defence counsel's fees.

Carmel Rickard

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