There was celebration and some balm of joyous ululations on Friday night at the Lobatse High Court.
This was after Chief Justice Maruping Dibotelo freed Bakgatla paramount chief Kgafela Kgafela II, his brother Mmusi Kgafela, Bana Sekai and others on condition that the floggings at Kgatleng cease until their lawfulness has been determined.
The order came as a result of an urgent appeal filed by Kgafela and the close to thirteen accused who in sum face a total of five counts of assault.
Kgafela and the other accused had been remanded in custody following an order by the Village magistrate court.
Prior to that, Dibotelo had refused to recuse himself after the Directorate of Public Prosecutions (DPP)’s Kgosietsile Ngaakagae requested that the judge withdraw from hearing the case because of his prior professional association with Kgafela.
Kgafela’s lawyer, Unity Dow, contended that the decision by the magistrate court was partly influenced by media reports and argued that the magistrate should have at least granted the accused conditional bail.
The prosecution, on the other hand, opposed the appeal and further contended that it was concerned about the appearance of the accused person to stand trial because they had shown some measure of contempt by failing to attend court after the magistrate court made a ruling for their remand.
Nevertheless after hearing both sides’ arguments for the day, Dibotelo granted the accused bail on condition that the floggings within Kgatleng District are halted pending the resolution of the criminal trial.
He further ordered Kgafela and his younger brother Mmusi to instruct their regiments to stop the floggings.
Dibotelo said that he had decided to grant the accused bail because of an undertaking by Kgafela and the other accused to stop the floggings. The judge said that as pre-condition to avoid further incarceration, this was a fundamental concession.
The judge also stated that the accused will be required to surrender all their travel documents to the station commander at Mochudi Police station.
“The accused shall attend all court mentions and trials and shall report to Mochudi Police Station on Friday every two weeks,” said Dibotelo.
He said that the accused should make an assurance to the court that they will not miss any court appearances.
He pointed out that court orders have to be adhered to and respected, stating that Kgafela and Mmusi ought to know this as they both are lawyers.
The accused are scheduled to appear before magistrate Barnabas Nyamazabo next week.
After judgment was delivered, many Bakgatla tribesmen and women, who had thronged the court to hear the case, could not hide their delight as they broke into hymns and praised the release of their chief.