Lobatse High Court judge Michael Leburu has granted lawyer Kgafela Kgafela II and Ditshwanelo leave to appeal to the Court of Appeal in a case they are seeking a permanent stay of execution on behalf of three death row inmates, Gotlhalosamang Gaboakelwe, Modise Tlhokamolelo and Mangombe Tadubane, on grounds that their execution will be improper as their conviction was based on a constitution whose legality they are challenging in Courts of law in the country.
Kgafela and Ditshwanelo also wanted the Court to rule that the application should be heard as a matter of urgency and that they should be granted access to consult any of the three prisoners to interview prison officers as maybe necessary for purposes of material gathering.
To support their application, they further submitted the fact that there is a pending case before the Court where the legitimacy of the government to kill anyone by hanging or otherwise is under challenge and that the ritual of death by hanging is a cruel satanic ritual that is inhuman and degrading.
For its part, Ditshwanelo also submitted that they were there to represent Gaboakelwe as a lawyer who was representing him in the trial has not responded to their call on how they could help and so felt duty bound to stand up for his rights.
Opposing the application, Charles Gulubane had, amongst other things, submitted that the applicants have no mandate to represent the prisoners in the criminal appeal before the Courts. He further said that the relief they sought in the application is not available or competent in law. Further that they have not demonstrated any wrong doing or violation of the rights of the prisoners either individually or collectively.
In his judgment, Leburu, on the submission by Kgafela that he has a right to represent the condemned prisoners by virtue of being a King of a tribe called Bakgatla and has a right to stand for the rights of people more specially the voiceless and the Ditswanelo submission that Gaboakelwe has been abandoned by his lawyer, said that he has noted the problems applicants have had in trying to contact Gaboakelwe’s lawyer but that this does not change the landscape under which they found themselves treading on.
“This is not sufficient to imbue them with the necessary standing to bring this application,” he said. Further to that he said they had not demonstrated that they had been denied access to the convicted prisoners, adding that Ditswanelo has even conceded that prisoners are not held incommunicado and that even those on death row can be visited even though with restrictions.
