The case from which former top South Africa prosecutor, Shaun Abrahams, has now been barred involves Lesotho’s former army commander, Lieutenant General Kennedy Kamoli and five others, charged with treason, murder and assault.
In essence, the problem was that Abrahams was absent from the trial, with no explanation, when he should have attended on January 10, even though the date was arranged a couple of weeks earlier with all counsel involved.
Before finalising the dates, the CJ repeatedly made clear that he would not allow postponements because the accused had already spent five years in prison waiting for the trial to start. And he cited the Speedy Court Trials Act in terms of which an entire case could be ‘dismissed’ by the court if the presiding judge found either side responsible for consistent and unwarranted delays.
That same law also says that a prosecutor who causes delays by ‘double booking’ – not appearing in court for a matter because of appearing in a second case – can be barred from court, a sanction that the CJ has now imposed on Abrahams because of his ‘no show’ on January 10.
In response to that decision and the CJ’s handling of the matter, the DPP brought an application for the CJ to recuse himself from the case, saying it appeared that he was biased against the prosecution.
The CJ decided that recusal application this week, with a judgment scathingly critical of both Abrahams and the DPP, Hlalefang Mary Motinyane.
He referred to the sitting of the court in December 2021, when he, as presiding officer in the matter, said he would be prepared to continue the trial during January vacation days, given the ‘inordinately long time’ that the accused had been waiting, in prison, for the case to start. When counsel responded, indicating when in January they would be available, Abrahams said he already had another case during January, in South Africa.
In his judgment on subsequent events, the CJ said that at this point, the court (meaning himself) told Abrahams he ‘had to make [a] choice in the matter.’
Eventually, all counsel involved agreed that the trial would run from 10 – 21 January. However, when the case was called on the agreed date, a series of events took place that culminated in the recusal application.
Requesting that he stand down from the case, the DPP claimed that the ‘conduct’ of the CJ ‘has not instilled confidence … that [he] will bring an impartial mind to bear in the adjudication of this trial.’ Further, she said that the impartiality and independence of the court had been ‘gravely tainted by the conduct’ of the CJ.
She said that ‘incidents of bias’ had ‘actually manifested themselves’, and the public understood that even the application for the CJ’s recusal was a ‘sham’, which the CJ would dismiss, and then proceed ‘as if nothing has happened’.
In his judgment, the CJ said when the trial started on January 10, Abrahams did not appear and no explanation was given for his absence. Two others represented the prosecution, however, one of whom said he wanted to apply for a postponement of the case. Asked by the CJ whether he had been briefed to prosecute the case, he replied that his only brief was to move for a postponement, something that the CJ had repeatedly said he would not approve.
The CJ said when he pointed out the implications of the Speedy Court Trial Act, and the possible sanctions that could apply, counsel backed off from his intended postponement application.
Then there was a delay while the second prosecution counsel, Naki Nku, obtained a brief from the DPP to take over as lead counsel and start the case. After some further technicalities, the case was postponed to 17 January.
On that day Abrahams was back, and said he would once again be leading the prosecution. However, the CJ decided that he should make inquiries under the section of the Speedy Court Trial Act, providing that an offending prosecutor may be denied the right to appear before the court for up to 90 days. He called for the DPP herself to appear and explain why it was that Abrahams had returned, given her earlier affidavit that Abrahams was not available to prosecute, and the appearance of two other prosecutors in his absence.
The CJ then called Abrahams who said he disagreed with the DPP’s affidavit that he had agreed with her to withdraw from the case in SA.
The CJ closely examined the court record and concluded that the DPP’s affidavits were ‘peppered with hearsay, distortions and misinformation.’
He said that during the December discussions with counsel about the dates for the trial to run in January, Abrahams ‘committed to the trial dates [knowing] that double-booking is a sanctionable professional misconduct.’ He also criticised the DPP’s contention that she and Abrahams had agreed the trial would go ahead without him until the 17th January.
The purpose of that contention, said the CJ, ‘was to let Abrahams leave the case for a week and thereafter re-appear in this court under the pretext that he never left the brief.’ And when he did re-appear in court on 17 January, he ‘did not bother’ to explain his absence.
The behaviour of both Abrahams and the DPP ‘shows the cavalier manner in which they treat this court. … Their behaviour as officers of the court is completely unacceptable.’
In the tongue-lashing that followed, the CJ laid out the expected standards of behaviour which, he said, the DPP and Abrahams had failed to meet.
He also challenged the DPP’s contention that a court, while it was allowed to conduct an inquiry ‘if a prosecutor seeks to postpone a matter on the basis of falsehoods and to impose sanctions’, was not allowed to ‘expel my lawyer from this case’.
The CJ said this showed the DPP’s ignorance about the powers that courts could exercise ‘over errant prosecutors.’
The law said that a prosecutor ‘who seeks to postpone a criminal trial by providing false and misleading information or double-booking should be sanctioned,’ and one possible sanction was to deny the prosecutor the right to practice or appear in court for up to 90 days.
A prosecutor who sought a postponement on the basis of a knowingly false statement could also be denied the right of appearance, said the CJ.
Unbeknown to the court and the defence team, Abrahams and the DPP had an agreement ‘that he can come back to the case any time his business was finished in SA’.
‘In my judgment, Abrahams supplied information to the DPP to prepare and file an application whose purpose was to seek a postponement to delay the trial.’
Both knew the trial was set for 10 – 21 January ‘and yet they helped each other in an effort to have it postponed to new dates that would suit Abrahams’ come back to the detriment of a speedy trial.’
‘No regard was had to the court and the plight of accused persons who have been in custody waiting for their day in court.’
No one who knew these details could suspect bias when the court denied Abrahams the right to appear and prosecute the case, said the CJ. Abrahams did not distance himself from what the DPP said about him in the affidavit for postponement and thus he failed, by association, in his legal and ethical obligations.
Similarly, the DPP failed in her ‘legal and ethnical duty to the truth’. She had power to retain outside counsel, but in exercising that power, there was no need to ‘retain counsel who engages in double-booking’.
The CJ was also critical of the DPP for making allegations about his actions in her affidavit even though she had not been in court to see for herself what had happened.
Any fair-minded person ‘understands that a trial such as this which has taken close to five years to commence cannot be stalled by the type of behaviour of the DPP and [Abrahams].’
His imposing sanctions on Abrahams did not show bias against the prosecution. There were others who could do the job, including Nku, appointed to lead the prosecution in the absence of Abrahams.
‘A criminal court cannot be at the mercy of prosecutors who abandon a criminal case without leave of the court. If they want to re-join a prosecution at the pleasure of the DPP, a truthful explanation must be given to the court.’
Ironically, Abrahams resigned from his job with the prosecution in Lesotho during September 2021, because he hadn’t been paid. When he announced in court that he was standing down from the cases, the DPP asked the court to let her attempt to persuade him to stay.
He accepted the job in Lesotho, and before that, a post in Botswana, after SA’s Constitutional Court found that Abrahams’ predecessor as head of the national prosecuting authority, Mxolisi Nxasana, had been unlawfully removed by former president Jacob Zuma. Abrahams’ own appointment by Zuma to that position was thus also invalid.