Maseru, Dec.18—- In analogy, a trial within trial can be held to determine whether a record was lawfully obtained.
This was said by one of the defence lawyers, Advocate Makhabane Masupha, in a case in which the Rasekoai siblings, Nthei and ‘Mamphoka are charged with the murder of their mother Martha Rasekoai, when he motivated an application for the court to hold a trial within trial in order test the admissibility of the evidence obtained by the prosecution which was being presented by a witness.
The application resulted from an objection raised by the defence who argued that Moneri Mochochoko, Senior Specialist in Management Information Systems from Vodacom Lesotho, should not continue to testify about the cell phone records of the accused.
In his arguments, Adv. Masupha stated that the accused did not consent to their cell phone records to be accessed. He added that they were not made party to the proceedings before the magistrate court where a court order was sought for Vodacom Lesotho to release the record. He emphasised that the record was unconstitutionally obtained and in violation of the right to privacy which is protected under section 11 of the Constitution of Lesotho, hence a need for the court to hold a trial within trial.
He pointed out that there should be reasonable grounds for a request for a court order directing the release of cell phone records. He said in the current case, there are no reasonable grounds or suspicions.
A prosecutor in this matter Adv. Lehlohonolo Phooko argued that when one challenges expert evidence, the fundamental ground will be its originality and authenticity. He however stated that in the current matter, that is not the case. He pointed out that procedurally, it was wrong for the defence to have objected in the middle of the expert evidence.
“They obtained an affidavit and were aware that we will lead the evidence, but they waived their right to object”, he said adding that they failed to comply with the procedure as Case Law indicates when to object. He emphasised that they ought to have objected before the witness testified.
He further argued that it is not proper to challenge a constitutional issue before a criminal court. He added that there was no need for the accused to be cited in the application for the court order. He asked the court to dismiss the application.
The court is expected to deliver its ruling on March 23, 2026, after which the case will proceed until March 27 2026.
The Rasekoai sisters are alleged to have killed their mother on July 25 2022 at their home in Masowe 4 and dumped her body in a donga where it was later discovered. It is alleged that they used a Nissan X-Trail vehicle to transport the body of the deceased to the dumping place. There are also allegations that one of the accused was using a phone belonging to the deceased at the time when she was said to be still missing.
The accused have pleaded not guilty to the charge. They maintain that they were tortured into making admissions and pointing outs in relation to the murder of their mother.
The case is before Justice ‘Maliepollo Makhetha.
Ends/SM/BM
