LAW REPORTS OF THE COMMONWE ALTHLAW REPORTS OF THE COMMONWE ALTH 2004 Volume I GENERAL EDITORS Emeritus Professor J.mcs S Rc.d, LLB of Cray's Inn, Barrister Peter E Slinn, MA, PhD

LAW REPORTS OF THE COMMONWEALTH

2004 Volume I

GENERAL EDITORS Emeritus Professor J.mcs S Rc.d, LLB of Cray's Inn, Barrister

Peter E Slinn, MA, PhD Solicitor, England and Wales

SERIES EDITOR James NeviUe, BCL, LLM

of King's Inns and of Lincoln's Inn. Barrister

SENIOR SUB, EDITOR lan Low, LLB, LLM. EMLE

EDITORIAL CONSULTANT Bmy Mould· lddrisu

Director, Legal and Constitutional Affairs Division, Commonwealth Secretariat

LexisNexis~ UK (J' oQ

550 Lesotho '~004) 1 LRC

Lcsotho

Sole v Cullinan and Others

Court of App<.1

Gauntlett. Grosskopf. Plewm.n, Smalberger .nd Melunsl'y,UA 14 A pnl 2003

(1) ConsrirutioMll4w -Judiciary -Judges - 8itu - R«Il.klI- Appcll4nt appl);ngfor rtCUJaI of mtmbm of apptll4u Btnth - Application dismwtd - Di.smissal thalltngtd on furthtr apptJlI - AppropriaU Usl 10 b< applitd whtrt suth rrCUJaI soughl - WJltlhtr ""th «St applied - Consritution of LtJOtho 199J, ss lZI ( I ), lZJ(ZXc).

(Z) Constitutional I4w - Judiciary - Appaintmtnt - Acting judgt - ACling judgt appainud to htar ,ptcific cast only - Chit[ Justi<t anticipating complex trimiMI trial - Whtthtr appaintmtnt uneonstitutioMI - Constitution of tht Republic of Namibia 1990 - Constilurion of LtJOlho 199J, , lZO(1).

(J)Judicia ry - Aclingjudge - Aclingjudge also holding rrmuntraced offi« of judge ad"",a« - SlalUlt prn'<!1tingjudge from aecepling rtmuntraud offi« nOl aulhoristd by I4w - Judgt holding ttmparary appaintmtnt cxtmpttd - IVhClhtr txtmpl ion r",riCltd to offitt outsidt gO\'trnmtnl serviu - IVhtthtr appointmtnt in,,,,Ud - High Court llet 1978, , /4 .

«)Judiciary - Appaintmtnt - Actingjudgt - TtrmS of appainlmtnl - ACling judgt appainttd on boJis of Sptcial agrud ItrmS and conditions - IVhtthtr such appainlmtnt prohibited - Sralutory Sal4ries Ordtr 1971.

The app<lIant. S. was convicted in Ihe High Court in a mal presided over by the first respondent, Cullinan AgJ. S app<aled to the Court of App<al against his conviction and sentence and also instituted a constitutional motion in the High Court challenging the vaUdity of the trial before Cullinan Ag J, contending that the latter had been disqualified from presiding over the trial on the ground that his appointment as an acting judge had been tointed by irregul.rities and the f.i1ure to observe both p<remptory provisions of I.w and the Constitution of l.e$otho 1993. The judge had been appointed under s 120(S) of the Constitution sp<cifically to tT)' • particular c.se and not to try cases gene ... lly. SeCtion 120(S) empowered the King to appoint an acting judge if advised by the Chief Justice that the state of business in the High Court so required. S further daimed that the judge had. inter alia. been appointed while holding the office of judge adv()(2te. contrary to the provisions of s 14 of the High Court ACt 1978. which prohibited. judge from holding any oth .. remunerated office not authorised by law but exduded tempo ... ry judges

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Sole v Cuilinan 551

8 from that pro,"s.on. The Full Bench of the High Court dismissed the constitutional mOtion, after refUSing an application for postponement of the hearing and ordering the app<Uant's altorney to pay the costs of the application de bonis propriis. and after dismissing an application by the app<Uant, which was mO\'ed only after the principal applicotion had been

b argued. for two of the three judges to recuse themselves for bias. S appealed against those orders to the Court of App<al.

HELD: App<al dismissed. (1) An imparlial judge was a fundamental prerequisite for a fai r trial. An

application for recusal of a judge was. in effect . an objection to jurisdiction. e which should normally be raised at the outset of the proceedings. It was nOt

an allegation of irregularity by an otherwise competent tribunal but an allegation that the tribunal lacked comp<tence from the Sl3rt. Waiver of such an objection h.d .0 be de .. but did not need .0 be express. The app<lIant's decision not to object to the composition of the High Court when proceedings commenced. before the application for postponement wos made

d and dismissed. and before argument on the principal application. supported the respondents objeCtion that the application for recusal had been made '00

late alld was therefore correctly dismissed. In any event, the application was devoid of merit. The prop<r test to be applied to an allegation of bias was to consider whether. reasonable. objective and informed p<rson would. on the

8 correct facts. reasonably apprehend that .he judge would no, bring an impartial mind to bear on the adjudication of the case, it :I mind optn to p<rsuasion by the evidence and submissions of counsel. The purpose of formulating the test as ·double·reasonableness was to emphasise the weight of the burden resting on an applicant for recusal. On the facts. there w.s no basis for recusal. The objection tha, the Chief JuStice had. in a related crimin.1

f trial. relied on decisions and rulings mOlde by (he same judge to whose position the principal appli~tion reb:ted WiU umenable: it could as wdl bt applied '0 any Court of Appeal which had upheld judgments of 3 particular judge. The contention tha. one member of the High Court Bench had vacated that office on appointment to the Court of App<al found no support in s 121(1) of the Constitution and the submission that his dual role created a

9 public p<rception that Court of App<al judges might be loathe to reverse High Court judgments ignored s 123(2Xc) of the Constitution, which dearly provided for that very sta te of affairs. by induding all High Court judges as ex officio judges of the COUrt of .'\pp<al. However. a judicial officer should nOt be unduly sensitive and ought not to regard an application for his recusal as a

h p<rsonal affront. What was required. esp<cially in dealing with such .n applica tion. was eonspicuous impartiality. for he was primarily concerned with the perceptions of the app<lIant. Nevertheless. the rhetorical excess of the High Court judgment on the principal applic2tion did not give rise to reasonable grounds for apprehending bias. coming at the cnd of promcted proceedings in which the conduCt of the app<lIant and his attorney had been extremely provocative. fostering the impression of resort to procedural ploys (see paras [l9H32). below). Dict. of Centlivres CJ in R v T 19S3 (2) SA 479 at 482. of Corbett CJ in Council of Rrnew, SA OF v Monnig 1992 (3) SA 482 (A) at

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552 Lesotho ' ')04) 1 LRC

495. of Hefer JA in Modi v N,drra,,,1 (Ply) Lld Ila Am,ri,an ExprrJ.l Trawl Smoi« a 1996 (3) SA I a' 13-14. of Ihe court in PrtJidtnl of Ihe RSA vSARFU 1999 (4) SA 147 a, 177. of Lord Woolf MR. Lord Bingham LCJ and $cOlt V·C L«abail (UK) Lld v Ba>fitld ProperlitJ Lld [2000] 3 LRC 482 or 508. of Brand AJA in Slare v ShatkeU 2001 (4) SA I at 10. Law Socit1y of UJOlho v Priml Minisler of wOlho (1986) LRC (Const) 481 and Sekoali v PrtJldtnl of Ihl Courl Martial [2000] 4 b LRC 511 applied.

(2) The undisputed evidence W:lS that 'he Chief Justice had formed 'he opinion tha, a judge of stature from outside 'he country should be appoin,ed '0 preside solely over the trial proceedings in question. That opinion was prompted by 'he .ntiopated scale. duration and complexi'y of the 'rial of S. considerations which had indubilably been borne out by events. Pas, cases in c Leso,ho had been tried by acting judges appoin,ed to deal wi,h one maner only. The practice was not confined to Lesotho--it was :also ptrmittcd under the Consrillllion of 'he Republic of Namibia 1990. There w.s no limila,ion in s 120(5) of the Cons,i,u,ion on 'he appoin,ment of a suitably qualified person '0 act as a judge only for 'he purposes of particular litigation. Accordingly. the objeCtion '0 the appointment of Cullinan AgJ '0 deal with S's tri.1 only was d wi'hout substance (see para [42). below).

(3) The language of s 14 of 'he High Court ACt 1978 was clear .nd unambiguous in permitting the appointment as an aCting judge of one who already held the remunerated office of judge advocate. The con,ention 'hat s 14(2) applied to holders of profi' outside government service only. such.. e privOle legal praCtitioners. was wi,hout foundation . The language of s 14(2) was bo,h clear 'and unqualified. It was no' permissible to imply words into a s,a,utory provision unless 'hey surmoun,ed a double hurdle: (i) 'he implication had '0 be a necessary one. in the sense that ,vithout it effect could not be g"'en to the statute as it stood. and (ii) the suggested provision would nOt be implied where considerable uncertainty exlstcd .bout its n.ture and f scope. for it had to be precise and obvious (see paras [43H44). below). Dic .. of Corben JA in Rtnnil NO v Gordon NO 1988 (I) SA I a, 22 applied.

(4) 111e appoinlment of Cullinan Ag J was not vitiated by the faCt ,hat he was appoin,ed on terms on a basis which were agreed. not st.tu,ory. which entailed payment at a ra'e Significantly higher than a High Court judge's salary and which was tax·free in his hands. There was no Statu'ory provision 9 which prohibited an appointmen' on such 'erms. The Statu'ory Salaries Order 1972 did not define 'judge' to include 'ACting judge' (as comparable legislation did) and ItS terms appeared '0 apply only to permanen, appointmentS. In an)' event. even if the agreed cmo1umentl were at variance with a statutory requirement. tha, could not. to a reasonable observer. give h rise '0 a perception of bias. in 'he full factual setting (see par .. [48]. [5 I). below). Dicta of S,ratford CJ in R v IXilm 1939 AD 178 at 186. Chasblson CJ in Van Roo)'tn v Stal' [2003]2 LRC 533 at [34] and Law Society of wOlho v Prim, Minister of Llsolho [1986) LRC (Consr) 481 applied. [Edilo,, ' nolt: Sections 120. 121 and 123 of ,he Constitution of Lesotho 1993. so far as ma,erial. are set Out at paras [40). [27) and [28). below. Section 14 of the High COurt Act 1978. SO far as material. is se, out a' para (43). below.]

Sole v Culi inan 553

a Cases referred '0 in judgment

BTR IndlUlritJ SA (Ply) Lld v Metal and AI/i,d 1I'0ri<m' Union 1992 (3) SA 673. SA AD

Chamber of MincJ of SA v Nallonal Union of Mintwori<m 1987 (I ) SA 668 Chokolingo yA·G of Ttinidad and Tobago [1981] I All ER244.[198I ) I WLR 106.

b T&TPC Countil of Rcvi,w. SADF v M6nnlg 1992 (3) SA 482 Dtiuh v SmulJ NO 1939 TPD 58

Hannah v GO"'Tnmm, of Ih, R'pubile of Namibia 2000 (4) SA 940 Law Society of wOlho v Priml Minisler of wOlho [1986] LRC (Const) 481.

C (1985- 9) LAC 129. Les CA

Llsolho Brakl c!r Clulm v Saths SA (Ply) Lld (1999- 2000) LLR 260. Les CA Loc.bail (UK) Lld v Ba>1kld PrOperticJ Lld (2000] 3 LRC 482. [2000J I /\11 ER 65.

[2000) QB 45 I. UK CA

M'lal and ElWricalll'ori<m Union of Sauth Africa v Nalional Panasonie Company d (Parow Fattory) 1991 (2) SA 527 (C)

Minisler of jlUliu y Sapi" (10 June 2002. Civi l Appeal 49/ 2001 . unreported) Modi v N,drrawl (Ply) Lld Il a Am,",an Expr(J.l Travel Smoitt 1996 (3) SA I.

SA App Div

MulllT .nd Clotl< v Lady Grey Divisional Cowno l 1929 EDL 307 PrtJidmt of Ih, RSA v StlRFU 1999 (4) SA 147. 1999 (7) BCLR 725. SI\ CC

e Rv Dtirth 1939 AD 178

Rv Gowgh (1993] 3 LRC 612. (1993) 2 All ER 724. UK HL R ,. Mlln, and Erltigh (6) 19S1 ( I ) SA I (11) Rv T 1953 (2) SA 479

Rmnil NO v Gonion NO 1988 (I ) SA I. SA App Div f SACCAWU v Pr'Jidtnl of Ih, IndlUlnal Ttibunal2001 (2) SA 277. (2001 ) 2 All SA

117. SA CA

Sager y Smilh 2001 (3) SA 1004. [Zool) 3 All SA 401. SA CA Sekoari v PrtJidtnl of Ihl Cowrt Marlial (2000J 4 LRC SlI. 2001 (7) BCLR 750.

Les CA

9 Snyman v Liquor LicmJing Cowrt. Windhotk (2) 1963 ( I) SA 460 Salomon NO v Dl W .. I 1972 ( I ) SA 575 Stale v Bam 1972 (4) SA 41 Slal< v MaUndi 1990 (I ) SA 962 Slare v MCYlT 1972 (3) SA 480

h Slare v Moodi, 1962 ( I) SA 587. SA AD Stat, ,. Rail 1982 ( I) SA 828

Stal< v Roberls 1999 (4) SA 91S. (1999) 4 All S.o\ 285. SA CA Slare v Shatkcll 2001 (4) SA I. [2ool J 4 All SA 279. SA CA Van Roo)'tn v Stare [2oo3J 2 LRC 533. 2002 (8) BCLR 810. 2002 (5) SA 246.

SA CC

VoUthtnk y PrtJidtnl. SA Gtn«Jkundig' tn Tandh((lkundig' Raad 1985 (3) SA 124. SA AD

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Legislation ",ferred to in judgment

wotho Constitution of Lesotho 1993. SS 12(1). 115(1). 118(2). 120(5). 121(1) High Court Act 1978. s 14 Statutory Salaries Order 1972. s 6A

Namibia Constitution of 'he Republic of Namibia 1990. art 82(3)

O,hor sources rcfer",d '0 in judgment Baxter IIdminisrrafiw Law (1984) S91-S9Z

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Dc Smi'h. Woolf and JowellJudicial Rrview of Adminislrali,,,, Action (Sthe edn. c 1995: 1998 supp) lZ-036

Leso.ho Government GaUlI< Extraordinary Vol XLV No 104 (14 December 2000)

Wade and Forsy,h IIdminisrratiw Law (8.h edn. 2000) pp 4H-456

Appeal The .ppellant. Masupha E Sole. appealed agaitU' the decision of .he Full Bench of 'he High Court (Lehohla CJ. Ramodibedl and Guni JJ) refUSing his applicotion seeking nullifkotion of 'he .ria/. conviCtion and sentence imposed by .he High Court (Cullinan Ag J) for 11 charges of bribery and tWO charges of fraud . The faCts arc set out in 'he judgment of 'he court.

GS Mdhluli and K Sello for the appellant. HP Viijoen SC and HM RaubcnhrimtT SC for .he second. fourth. fifth. six.h .nd

seventh respondents.

14 Apri.1 2003. The following judgment. of .he court was delivered.

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GAUNTLElT JA. [I] Aftet a lengthy trial before the first respondent. an aCting judge of 'he

High Court (Cullinan Ag J. • retired Chief Justice of Leso,ho). 'he appell.nt-the former chief executive of 'he Leso,ho Highlands 9 Developmen, AuthOrity-was convicted on 11 counts of bribery and twO counts of fraud. and sen.enced to an efl'eCtive 18 years' imprison men •. He has appealed against his conviction and sentence; .hat appeal has .Iso been enrolled for hearing during .he cumnt session of .his court . Exactly one mon.h after he WO$ sentenced. the appellant. however. also separately h instituted wha, was styled a 'notice of constitutional motion' in the High Court. I. sought to nUllify his lrial. and hence conviction and sen.ence. on the basis that Cullinan Ag J was disqualified to preside over It. The 'notice of constitu.ional mo.ion· proceeded before the court a quo. a FuU Bench of .he High Court (Lehohla CJ. Ramodibedi and Guni JJ). It is against .hree separa.e orders made by the Full Bench that the present appeal has been lodged.

{2] The first is .he order by the COUrt a quo that the appellant's attorney pay the costs of an unsuccessful application for pos.ponemcnt on the attorney

Sole v Cu llinan (G '1Iet! JA) 555

8 and clien. scole and de bonis propriis. The second is i.s dismissal of an application thereafter made for .he recusal of .wo members of .he COUrt. The .hird is its dismissal of .he principal application before It. In which the appellant sought an order declaring the appointment of the first respondent as an acring judge to be in breach of s 120(5) of the CotUtitution of Lesotho 1993: declaring his remuneration to be in breach of s 115(1 ) of the

b Constitution (read with s 6A of the Statutory Salaries Order 1972. as amended): and dedaring consequentially the appellant's trial In which the first respondent had presided to be in breach of ss 12(1) and 118(2) of the ConStitution and therefore invalid. I shall refer to this .s ' the principal ,ppUc3lion· .

C {3] lt is convenient to deal with these three matters in that order.

THE POSTPONEMENT APPLICATION AND THE CONSEQUEI'-'l'lAL COSTS ORDER

{4] The appell.nt sought the postponement of the hcoring of the princip.1 applica.ion against the following b.ckground. On 7 December 1999. the

d appellant was committed to stand trial in the High COUrt tOgether with 18 others on SOme 19 counts. including 16 of bribery. His co·accused included bOth individuals and international construction companies and consultants. A number of interlocutory applications ensued. involving matters such as the separation of tri.ls. the legality of .he charge sheet. the withdrow.1 of Crown

e counsel and the manner in which certOlin of the accustd were ched. Ultimately the appellant rtmained the sole accused. his trial proper only commencing on II June 2001. Judgment was delivered on 20 May 2002. when the appell.nt was found guilty on (as I h.ve indicated) 13 of the counts. On 4 June 2002 he was sentenced. He proceeded to note an appeal ag.inst his conviction .. md sentence.

f {5] The principal application was enrolled (or hearing on 10 December 2002. The: m;J;tcrial events \\lhich preceded the hearing were these. The application was lodged on 4 July 2002: the answering .ffidavit on 9 AUgust 2002: .nd the replying affidavi t on 2 September 200Z. The appellant's attorney .• nd the attorney representing the second. fourth . fifth. sI"h and seventh respondents (to whom I shall refer for brevity as the respondents' .ttorney) .hereafter met

9 in the Chief Justice's chambers on 14 October 2002. They agreed suitable dates for the hearing (10 and 11 December 2(02). These were speCifically dates on which Johannesburg senior counsel engaged on beh.lf of .he appellant to argue the application would be avail.ble. On the following day. the respondents' attorney wrOte to the appellant's attorney and asked him to

h set the matter down accordingly. (6) He did not do so. Mier a week the respondents' attorney accordingly

wrote to the .ppellant·s attorney (on Z2 October 2(02) .nd .galn .sked him.o enrol the matter. A further week ensued wi,hout the matter being enrolled. Accordingly on 29 October 2002 the respondents' attorney wrote to inform the appell.n t·s attorney that. in .he circumstances. he himself had enrolled the matter for the dates agreed upon. This letter was followed twO days later by a furthet letter from the respondents' attorney to the appellant's attorney proposing that the appellant file his heads of argument on 25 November and

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the respondents their heads of argument on 2 December 2002. When this had 8 elicited no answer by 7 November 2002, the respondenlS' anorney once more wTOte a lwer, seeking an urgent response to his lener regarding the heads of argument.

[7) This. too. elicited no reaction. On 26 November 2002 me respondents' anomey yet again wrote to the appellant's anorney, accepting that no exchange of heads of argument would now t.ke place, asking that at least a b list of authorities on which the appellant 's counsel would rely at the hearing be supplied. and undertaking on behalf of the respondenlS to act reciprocally.

[8) On 5 December 2002, the appellant's attorney wrote. lengthy lener. While dealing with other maners, it made no reference to any difficuhy regarding the hearing arranged by the . tlOrneys on both sides with the Chief c Justice six weeks previously. and scheduled for the next week.

[9) A day later-on the afternoon of 6 December 2002. a Friday-the appellant's anorney telephoned the respondents' anorney to ask for a postponement of the hearing scheduled for 10 December. The latter immedia tely declined to accede to the suggestion as counsel had been engaged and all arrangements made for them 10 tra"el to Maseru. The result d was a response in wriring on 9 December 2002 to the correspondence described above, which had gone unanswered in its entirety until that moment. In this response, four reasons were suggested for the proposed postponement. The first was that the appellant's senior counsel 'was not ready to argue the matter because of the fact that the client had nOt been able 8

to arrange for his fees . The second waS that the counsel in question 'has nOt been adrrii tted to practise in this jurisdiction and ... due to an oversight on our part it has not been possible to make the necessary arrangements for his admission at this very late hour'. The third was th.t the Low Society h.d indicated its intention to 2:pply to join in the m2in ~pp1ication . :md 'would probably need some time to prepare itself'. The fourth was the suggestion f that the question of recusal of two of the Judges allocated to hear the matter 'may have to be deah with first' .

[10) The hearing took place on 10 December. The Chief Justice, delivering the judgment of the court, dismissed the applica tion for a postponement after • brief .djournment following the conclusion of onl argument and on 17 December 2002 handed down a judgment (in which the twO other 9 members of the court concurred) sening Out his reasons for doing so. The order m.de on 10 December re.ds as follows:

'Applicarion for postponement is refused with COSts de bonis propriis on the scale of attorney and client granted against the anorney Mr Phoofolo as • mark of the court's displeasure for the negligent manner in which the h maner was conducted and the timing as an added factor showing toral disregard for the convenience of the other party and of the court. Such COSts shall include costs consequent upon the employment of twO counsel . Further reasons will follow:

[ 11 ) The order refUSing the postponement is, of course, as a purely interlocutory ruling nOt itself subject to appeal: only the costs order is. Shortly stated, the court's reasons were these. The question of the financial

Sole v Cl :an (Gauntlet! JA) 557

8 poSition of the appellant was no surprise to his attorney. It had been known throughout the period of the criminal trial , in which the attorney had represented the appellant on legal aid precisely because of the appellant's inability to meet the costs of the trial unassisted. (It may be noted that this assistance was rendered by the ugal Aid Board at a rate which took into

b account the scale and complexity of the trial, namely approximately ten times the ordinary rate payable in respect of legal aid in Lesotho). Thus the appellant's anorney knew about the appellant's financial position for a period in total of at least eighteen months. In addition, the Chief Justice considered. it was 'a matter again for great ostonishment ' that the appellant's attorney should. at the eleventh hour, have relied on the fact that counsel of his own

c choice had nOt been admined in Lesotho. As the Chief Justice pointed Out, the appellant's anorney himself admitted that this failure w.s his responSibility. Finally. as reg.rds the question of intervention by the Law Society. at the hearing on 10 December the legal representative for the Low Society disclosed to the Court that he had advised the council of the L.w Societ)' .gainS! intervention. and that his advice had been accepted . Thus the

d expectation that a postponement would be required to .1I0w for intervention by the Law Society was nOt borne out .

[12) In these circumstances, the Chief Justice characterised the conduct of the appeU.nt·s .ttorney as amounting to an 'unreasonable and inexplicable f.i1ure or reluctance to do what he had undert.ken to do ie set the maner

8 down'; a$ involving. failure which 'is only inexcusable and .ccordingly deserving of censure': as entailing obvious prejudice (through del.y) for the respondenlS in achieving a de termlnatjon of the matter; as involving .n .pplication for postponement without .ny form.1 notice and substantive :affidavitS; ::md in\,olving. all in 0111. 'inexcuS2blc: irregul:uities',

(13) This COUrt has repeatedly w.rned th. t gross bre.ches of the rules and ( of this COUrt's ci rculars Issuing further procedural direCtions may. in

appropriate circumstances, give rise to COStS orders de bonis propriis. (Cf UJolho Brak( (:7 Clw"h v S<lciu SA (Ply) Lld ( 1999- 2000) LLR 260.) Indeed, each court circular in respect of sessions of this COUrt has. in recenl years. Itself expressly reiterated that warning. The multiple f.i1ures by the . ppellant·s anorney were. for the reasons gi"en by the Court a quo. reprehensible. The

9 Court a quo had a discretion regarding COSIS. and it h.s not been shown that it exercised it in a w:ay which would Warrant our intervention . In my vic:w the appeal against the COSts order relating to the application for a posrponement is without merit. and should be dismissed.

h niE APPUCAT/ON FOR RECUSAL tN THE COURT A QUO (14) I rum now to the second issue in this .ppeal. This involves the

unsuccessful application for the recusal of twO members of the court a quo. This application. it is to be noted, was moved only after the application for postponement had failed . It was also only moved after the principal

. application was argued. What happened w.s that the court • quo (after I adjourning briefly following the conclusion of the postponement applica tion

and then reassembling to dismiss it .• s I have described in para ( 10). above) immediately proceeded to deal ,vith the princip.1 application. It invited the

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ap~lIanl's .lIorney 10 address h. He declined. slaling Ih .. he had nOlhlng 10 8

add 10 Ihe pa~rs med on behalf of Ihe ap~lIan!. Counsel for Ihe respondems Ihen addressed Ihe cOUr!. Thereafter Ihe maller was adjourned for judgmenl In reladon 10 Ihe prindpal applicalion on 17 December 2002. Two days after the hearing. however-Ihus on 12 December 2002-lhe application for the recus.! of (Wo members of the cour! a quo was launched. b It was enrolled for 13 December. but h.d to be postponed 10 17 December to en.ble an answering affidavit to be filed . No replying .ffidavil was flIed. The application for rerosa! relating to the cour! a quo was then duly argued on 17 December 2002. After oral argument, .nd a brief adjournment by the court, the application for rerosal of the twO members of the court was dismissed; the court's reasons were handed down In the form of a wrillen c judgment by Guni J for the COUr! on 28 January 2003. Immediately thereafter judgment in Ihe principal application w.s delivered for the cour! by R.modibedi ).

(15] The application for recuw of rwo members of the court. quo. as it was concei\'ed and made on 17 December 2002. was in my view correclly d~nUssed . d

(16] As has been recorded in para (9). above, the ap~lIant's allorney had noted in his Ieller of 9 December 2002. seeking • poSlponemenl of the hearing of 10 December 2002. that the ap~lIanl 'would object to Ihe presence of twO of the presiding honourable judges. and ... the question of rccu .. 1 may h3\'e 10 be dealt wilh flrsl·. The RegiStrar of the High Court was 9 also SO nOlifled. In fact. no such objection was raised; the ap~lIanl first sough I 10 achieve a postponemen!. Nor was il moved when the court rccolwened (after dismissing the postponement application) and proceeded to hear argumenl on the principal maller. As already described, when the ap~lIant's allomey was expressly called upon to submit oral argument, his response was not to object to (he court hearing the matter, but to refer the f court to what had already bten put before it in written form.

(17] The explanation offered for the twO dedsions so made on 10 December-first at the commencement of proceedings and again after the court reconvened to hear the prindpal application-not to apply for recu .. lls given in this way in the Notice of Appeal: it is said thal it was 'dearly ap""rrnl from Iheir lordship" judgmrnu [no judgments had al that stage been given) Ihal 9 Ihe almosphere in Ihe court on Ihc 10 December 2002 ... waJ nol al all eonduci"" 10 Ih, moving of ,uch an applkalio'. A somewhat different explanation is advanced in the ap~Uant's affidavit. bUI il relates only to the second dec~ion not to objeCt to the composilion of the court (th .. is, after the postponement application failed). He says that although he had decided to make Ihe h application, he was left 'Ierrified and 'p«chless by Ih' wilhdrawal of his altornt)'. whim Is prccisdy Ihe « ... on why I make Ihis applkalion Silting in Ih' pri,"t)' and ealmn'JJ of my prison «11'. The evidence. however. shows that the ap~lIant was not rendered s~echless; he exerased h~ right himself to address Ihe court, and ap~.rs to have done so al some length. .

(18) Neither answ« to the complaint by the respondents that the I

application should have been made at le.st before argument commenced on Ihe m.in application is com~lJing. It is nO reason at all why objeCtion was

Sole v CL .an (Gauntlett JA) 559

8 not m.de at the OUtsel of proceedings on 10 December- Ihus before Ihe postponemenl application was made. The cour! could nOt have evinced .ny 'atmosphere' before it commenced .illing. If. moreover, the COUrt was considered by the .p~lI.nt (as he subsequently deposed) to be ' totall), biased in fa"our of my opposition' il ~ inexplicable Ihat Ihe ap~lI.nt-3ssiSled to

b that point by an allomey and himself a senior execulive with educ2lion .nd wide administf2ti\-e txperience-desisted from so much as noting his objection 10 the principal 3pplication proceeding.

[19] When an adjudicator should be recused. 'it means th.t the trial ... should never h.ve laken place at all. Whal occurred w.s • nullity. It was not. 3S in many of Ihe cases quoled to us. an irregularity or series of irregul.rilies

C commilled by an olherwise com~tent tribunal. It w.s • lribun.llhat I.cked com~tence from the Sl.r!. The irregularity commilled b)' proceeding with the Iri31 W3, fund.mcnt3l.nd irreparable'. (Co"ncil of Review, SilDF v M6"nig 1992 (3) SA 482 (A) al 495 ~r COrbell CJ.) The judge who should be recused but connnues 10 sit thus 'commits ... an irregularily in Ihe proceedings every minute he remains on the bench during the trial .. .'. (R v Milne and Erlcigh (6)

d 1951 (1) SA 1 (A) at 6 in fin ~r Centlivres CJ and Moch v N,drrawl (Pry) Lld Ila ilm,rican Express Trawl Service 1996 (3) SA I (A).I 8-9 ~r Hefer JA.) Nullity in criminal justice h:ls serious consequences-for those involved, and for the adminislralion of Juslice itself. There ma)' be ~clal insl3nces in which a failure to raise recuS31 at the Outset is. on the particular facts of (he m3uer,

s explic~ble. But since the objection is. in its effect. to jurisdiction. in principle it should be raised in initio litis. As Ihis has been PUI by a particularly eminent Court in a recenl English decision:

f

'It is nOI o~n to [Ihe lilig.nt] to wait and see how her cI.ims ... turned OUI before pUl'>uing her complaint of bias ... (She) w.nled to h.ve Ihe beSt of both worlds. The law will nOt allow her to do so: (See I..ocab<lil (UK) Lld v Hayfield Propc"ieJ Lld (2000J 3 LRC 482 at 508 ~r Lord Woolf MR. Lord Singham LCJ and SCOII V·C.)

(Sce .Iso De Smith. Woolf and Jowell judicial Rrview of Adminlslraliw Acrion (51h edn. 1995; 1998 supp) 12-036: 'Objection is generally deemcd to have been waived if the party Or his legal represenl.tive knew of Ihe

9 d~u.liflcalion and acquiesced in the proceedings by f.iling 10 take objection at Ihe e.rliesl possible opportunily·.) A waivcr entailed by a failure to ra ise Ihe point need nOI be express: it need only be clear. (\V3de and !'orsylh Mmi"islrali"" Law (8th edn, 2000) pp 455-456 3nd aUlhorities collected in nOte 70. Snyman v Liquor Lir<nJing CO"", Windhock (2) 1963 (l) SA 460 (SWA)

h .t 465D-G M""er and CIOtI< v Lady Grt)' Divisional Council 1929 EDL 307 31 313-316. SUler ildminisrral;,,, Law (1984) 591-592 .nd er Voischrnk v Prcsidrnl, SA GrnUJkundig' rn Tandheelkundig, Raad 1985 (3) SA 124 (A) at 1400-).) The samc applies 10 an eJection. (As to the elemcnlS and application. see Ihe .nalysis by Hoc .. er JA in Chamber of Min'J of 511 v Nalional Ullion of Minew,,'*rn 1987 (1) SA 66S (A) at 6900-).) The conscious decision by Ihe ap~lIant (having given formal nOlice on 9 December of his intenlion 10 do so) not to object 10 Ihe composition of Ihe court a quo on 10 December 2oo2-when the court commenced proceedings, prior to Ihe applicalion for a

-.J IN


postponement being moved, and again when that application had been 8 dismi5sed and the Court indicated that it wished to he .. argument on the principal application-in my view supportS the objection by the respondents in their affid.vits to the late making of the application for recusal in the Court below.

(20) The second reason why I consider that the application for the recwal of b twO of the members of the court a quo w.s correctly dismissed is th. t, on its f.cts, the application was in any event devoid of merit. Although I have reaehed the conclusion that the application, as it was conceived and moved, h.d to fail for the reason just stated, the substanti\'e Issues raised by the .pplication are of public Importance, and are sueh as to make a ruling by this court also on that basis desirable, leading as it does to the same result. c

(21) It is necessory In this regard first to st.te the legal test .pplicable to recusal of a judge. This is becaU$C earlier decisions gnppling with this Issue as • matter of English law have aptly been described by Lord ColT of Chie\'eley as 'not only large in number but bewildering in their eITect' (R y Cough [1993] 3 LRC 612 at 615). South African authori ties have recently sought to avoid this casuistry, and the uncertainty it has engendered. (See especially BTR 'ndustries d SA (Pry) Lld y Mcraland Allied Workm' Union 1992 (3) SA 673, President of th' RSA y SARFU 1999 (4) SA 147, Stat< v RobmJ (1999)4 AU SA 285, SACCAWU v President of th, 'ndustrial Trllr.nal (2001) 2 All SA 117, Sag« v Smith [2oo1)J All SA 401 and Slat< v Shaekdl (2001) 4 All SA 279,) The highest courts both in South Africa .nd more recently in Swaziland (Minist« of justice v Sapir< 8 (10 June 2002, Civil Appeal No 49/ 2001, un«poned) at 9. Cf also the previous decisions by (his court in Stkoati v Pr,sident of COUT! Mart;,,1 (2000) 4 LRC 511 and Law Soci(ty of usotho y Prim, Minist" of Ltsotho (1986) LRC (Const) 481 ) have applied this test:

'The question is whether a reasonable, objective and informed person f would on the correCt facts reasonably apprehend that the Judge has nOt or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reason.bleness of the apprehension mUSt be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour and their ability to carry out that oath by reason of g their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal belie& or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should nOt hesitate to h recuse herself or himself if there are reasonable grounds on the part of • litigant for apprehending that the judicial officer, for whatever reasons, was nOt or \vill not be impartial'. (Presiden t of th( RSA v SARFU 1999 (4) SA 147 at 177.)

(22J In my view the general test for «cusal ciled in the previous paragraph-itself since cited with approval by the Court of Appeal in England (Loca""il (UK) Lld v Ba)fidd Properti(s Lld (2oooJ 3 LRC 4S2)-should

Sole v cum ~ (Gauntlet! JA) 561

8 be applied in Lesotho too. As South Africa's Supreme Court of Appeal has noted, in applying this test 'the purpose of formulating the test as "double·reasonableness" is 10 emphasise the weight of the burden resting on the appellant for recusal'. (See State \' Shackdl 2001 (4) SA I at 10 per Brand AJA.)

b [23] 1 turn to the application of this test to the application for recusal of two members of the COUrt. quo, as it was moved On 17 December 2002. The first ground for recus.1 asserted by the appell.nt is the contention th.t two members of the COUrt a quo exhibited, in what they said during the hearing on 10 December 2002, 'no semblance of det.ehment .nd were totally biased' against the appellant.

c [24J This att.cI< rel.tes primarily to what .re described as 'stinging' observ.tions from the Chief justice and R.modibedi J in the .f«rmoth of the :aborcive! postpOnement application. :and relies On wh:u the :apJ>('lIam amrts in his affidavit, confirmed- as respondents' counsel noted, 'somewhat equivocally'_by Mr Phoofolo. (The .ppellant himself said in his affid,vit, it may be noted, that his 'ccount of wh.t passed in COUrt 'may not be accurate',

d but nevertheless contended in conclusion that 'what I have st.ted above was in fact said'). But this account is, in material respects, refuted in the detailed answering affidavit filed On beh.lf of the respondents. (No replying affidavit W3S filed; however given the extraOrdinary .nd (it must respectfully be noted) quite irregular procedure adopted in this regard by the COUrt a quo (The

8 court's judgment (per Guni J) records: 'The applicant had nOt filed a replying .ffid.vit. He proposed to reply verbally during the hearing. The court acceded to his proposal. That is how the matter finally proceeded on 17 December 2002'. How the COurt would give effect to this procedure, and how the respondents would dc~1 with :a reply which was informal and which interrwined :assened facts with argument. is nOt inruc2tcd.). it would be unralr

f to the appellant to make anything of this), Th.t \'erslon, in turn, is consistent with the facts recorded by Cuni J (who delivered the judgment of the COUrt in relation to this aspect). (In appropriate circumstances, • COUrt faced with a recusal application may itself h.ve to set OUt facts relev.nt to the application: see Prtsident of tht RSA v SARFU 1999 (4) S/\ 147 at 165F- 167H.) In these circumstances, as this Court h.s repeatedly noted, the ordinary rule In motion

g proceedings applies: except where the version of a respondent is so clearly farfetched or otherwise unten.ble that it can be rejected simply On the papers, in the absence of a referral to oral evidence it is the basis on which the COurt must proceed.

[25] It was also contended that the Chief Justice fell to be recused because h he had, in a rel.ted criminal tri.1 involving Acres International, relied On

decisions .nd rulings by the same judge (Cullin.n AgJ) to whose position the princip.1 .pplication rel.ted. The objection is in my view unten.ble: it could as well be .pplied to any COUT! of .ppeal which, at times, has upheld judgments of a particular puisne judge. The faCt that cert. in factual matters may overlap between two (or mOte) matters in contention adds little. As was

i said in an an310gous situation: -..J ~

,

li i I

I1 , ,

I 1

I i

562 Lesotho 12004] 1 LRC

' ... Ihere is no rule in South Africa which lays down Ihal a judge in 8 case.s olher Ihan .ppeals from his judgments is disqualified from silting in a case merely because in Ihe course of his judicial dUlies he has previously expressed an opinion in Ihal case. There would be.s little justifiC3tion for such a rule as for. rule which laid down Ihal a judge who in a judgment expressed his opinion .s 10 Ihe correct inlerpreration of .n Act of b Parliament could nOI sil in a subsequenl case between different p.rties where Ihe same question of interprelation was invol""d·. (See R v T 1953 (2) SA 479 al 482 per Centlivres CJ.)

(26) A Ihird b.sis for Ihe application involved Ihe contention Ihal Ramodibedi J, h.ving been appoinled on a permanent basis as • member of c the Court of Appeal, was prevented from sitling as a judge of Ihe High Court. The conlention W3$ Ihat, once so appointed, Ramodibedi J ceased 10 be a member of Ihe High Court Bench and, beSides, by serYing in both capacities. Ihe perceplion would be crealed In Ihe minds of ordinary people 'thal Court of Appeal judges m.y be loalh 10 o""nurn judgmentS delivered by their colleagues silling in the High Court, and Ihat lhis may impact negatively on d public confidence in the administralion of juslice'.

(27) 11 is firsl necessary 10 deal with Ihe conlention Ih.1 Ramodibedi J had vacated his office as a High Court judge by vinue of the provisions of s 121(1) of the Constitution. This in my view is without 3ny merit. The provision is. in fact, 10 Ihe effect Ihal Ihe 'Chief Juslice or olher judge of the High Court shall 8 vacale Ihot office when he all.ins Ihe prescribed age". ThaI is Ihe only provision staling an ex lege basis on which lermination of appointment occurs. The balance of Ihe provisions deal wilh mechanisms for removal from office (sub·ss (3) 10 (7), and Ihe capacily of Parliament 10 alter Ihe relirement age (sub·s (8».

(28) As regards Ihe ahernalive contention, relating 10 the perception of the ( public. this overlooks s I 23(2Xc) which provides Ihal the judges of the Court of Appeal include 'Ihe Chief Justice and the puisne judges of Ihe High Court ex officio'. There is no room for the 'perceplion' raised by the appellanl, if the Constitulion-Ihe supreme law of Lesolho-itself provides in the clearesl termS for thal very stale of affairs. That il does so is doubtless for Ihe reasons suggested by Gunl J in her judgment: Ihe facI Ihat Lesolho is a poor country, 9 drawing on a stTlaU pool of skjJIed Iowyers. The balance struck in the Constitution is btt''''cen :;I situ:uion in terms of which it is possible to convene a Court of Appeal bench drawing (in part or in whole, as exigencies require) on full ' lime members of Ihe High COUrt, but also (pursmnl 10 s 124 of the Constilulion) 10 appoinl suilably qualified olher persons 10 serve as judges of h appeal on a non full'lime basis.

(29) For these reasons, Ihe court a quo was also correCI in dismissing Ihe application made on 17 December 2002 for Ihe recunl of IWO of ilS members.

(30) That, however, most regrellably, does nOI end Ihe inquiry as 10 whether the court a quo was disqualified from conlinuing 10 si t. and to adjudicale Ihe principal applicalion. I have already referred 10 Ihe fact Ih. 1 Ihe dismissal by Ihe court a quo on 17 December 2002 of the applic'lion for the recusal of IWO of its members was immedialely followed by argument on the

Sole v cur n (Gauntlet! JAJ 563

8 principal application, and an ex tempore judgment (delivered for the COUrt by Romodibedi J). lIS opening lines are these:

b

c

d

8

(

9

'The applicant is seemingly like a man besieged but I should hasten 10 say Ihe whole saga is no doubl of his Own making. His alleged participation in fraud and bribery stand.ls involving millions of Maloti while Chief Execulive of Ihe Lesolho Highlands De""lopment AuthOrity (lHDA) has come 10 haunt him in Ihe COurlS of law with perh.ps Ihe sa me relentlessness as a f.iryl2le ghost does in stalking ilS prey:

It continues:

'He has admilledly appealed again$( bolh conviction and sentence but he obviously does not feel confident of success in that approach judging from what follows hereunder. So what mU$( he do now to gel OUI of th is quagmire? Must he resign himself 10 fa le and Ihereby sink or mU$( he devise ways and means of extric.ling himself? In the midst of this daunting task in deciding upon an appropriate course of action beneficial 10 himself he has. ralher belatedly. it has '0 be said al the Outsel, come up with :In ingenious idea namely to 3uack the constitutionality of the appointment of Ihe learned 3Ctingjudge who tried him. namely the first re.spondent. h is th is application which is before th is COUrt:

It concludes:

'It is • stronge twisl of eVenlS Ihal this judgment should end where it started namely with applieant's typical ingenious attack on the judges presiding over his eases. This no doubt demonstrales his desperation as fully set OUI .. . above .. . True to form, the appliC3nt .1I0wed the present application 10 proceed ' " Applicant embarked upon .nother ingenious ide •. that is 10 allack two members of Ihis panel by seeking Iheir recus. 1 on Ihe unfounded and manifestly contemptuous allegalion that they are ·biased". These are my brother the Chief Justice and myself . .. NOlonly is Ihe application for recusal de" oid of meril but il is now clear 10 the COUrt ,hal il amounts to unjuSlified delaying tactics in the hope that il might favourably affect Ihe Outcome of applicant 's crimin.1 appeal in question. While it is perhaps true 10 say that a drowning m.n clutches at straws this case no doubt borders on the extreme. There is surely 3 limit beyond which I.ctieal ploys can be taken:

(31) In comparoble circumstances, where a judicial officer was affronted by 3n application for recusal which, in hjs :assessment, entailed an 3tt3Ck on his

h integrity, il was aptly said:

i

i\ judicial officer should nOt be unduly sensitive and ought not to regard an 'ppliC3tion for his recusal as a personal .ffront. (Compare Scale v Bam 1972 (4) SA 41 at 43C-44). If he does. he is likely to gel his judgment clouded: and. should he in • c>se like the presen t openly convey his resentment to Ihe parties. Ihe result will mOSllikely be '0 fuel the fire of suspicion on the part of the applicant for recusa!. Afler all, where a reasonable suspicion of bias is alleged. a Judge is primarily concerned with Ihe ptrup,jolU of Ihe applicant for his recusal for. as Trollip Ag JA

--.! V\

564 Lesotho (2004} 1 LRC

said in Slate v RaU 198Z (I) SA 8Z8 at 831 in fine-S3Z: "(f)he Judge must 8

ensure that 'justice Is done'. It is equaUy important. I think. that he should also ensure that justice is seen to be done. After all, th3t is a fundamental prindple of our law and public poliey. He should therefore so conduct the trial th.t his open.mindedness. his impartiality and his fairness are manifest to an those who are concerned in the mal and its outcome, b espedalll' the accused." (See also Stale v Malindi 1990 (I) SA 96Z at 969G-1 and cf Solomon NO v Dc Waa1197Z (1) SA 575 .t 580H. Slal< y Mc)' ... 197Z (3) SA 480 at 484C-F). A judge whose recusal is sought should accordingly bear in mind that what is required. particularly in dealing with the application for recusal itself. is "COnspitllOIU impartiality" (BTR IndlUlrieJ SA (Pry) Lld v Meraland A/I(ed Worl:m' Union 199Z (3) SA 673 at C 694G-H).' (Sce Mocn v N<dtra,~1 (Pry) Lld I la Ammcan Exprus Tra",1 Service 1996 (3) SA 1 2t 13- 14 per Hefer JA.)

[3Z) In the present case. howe, .. r. the court's remarks came at the end of a protracted process in which 'he conduct of the appellan' as well as his d attorney had been extremely provocalive. Certainly ,his conduct fosters the impression of resort to procedural ploys. In the drcumst.nces. the courts rhetorical excess would nOt in my judgment give rise to 'reasonable grounds on the part of • Ii'igant for apprehending ,h .. the judicial officer for \Vh .. ever reasons. was nOt or [would) not be Impartial' (Minist ... of JlUtice,' $apire (Civil Appeal 49/ Z00I. 10 June ZOOZ. unreported). (It may be noted that the oral e and, in particular. written argu ment for the appellant before us also contained excessive language and a number of irresponsible submissions; these. however. were retracted by the .ppell.nt·s couns(.I, and an apology tendered from the 8ar.)

[33) The result is 'h3t 'he appeal against the order made on 17 December Z002. and 'he judgment delivered for the Court by Guni J on 28 January Z003 f (see para (14). above). dismissing the application for recusal of twO members of the court a quo. must fail . (I' should be noted th2t. as a matter of strict procedure. an application for recusal of an adjudicator should ordinarily be directed or 'he adjudic2tor in question. and initially at least. be determined b)' him or her. Howe, .. r. as in 'his case the order and judgment of Guni J were 9 concurred in by both members of the court at whom the application was directed. nothing appears to rurn on this. and indeed nothing was made of it .)

TIlE APPLICATION FOR THE RECUSAL OF CULLINAN Ae J h [34)1 turn now to the prindp.1 application which seeks declar2tory orders

predicarcd upon the proposition that 'he appoin,ment of Cullinan Ag J to conduct the appellant's criminal trial was a nullity. The correct legal test to be applied in this regard has been srated in paras (2 IH22). above. and requires no reitc~r3tion here.

[35) The appellant's argument in this regard invokes as its point of dep.rture the supremacy of the Constitution (for which s 2 provides). read with three provisions in the Constinnion. The first is s 12( 1). which states:

Sole v Cu\lir (Gauntlet! JA) 565

8 'If any person is charged with a criminal offence. then. unless the charge is withdrawn. the case shall be afforded a fair hearing within a reasonable time by an independent and impartial Court established by law.'

b In a similar vein. s 118(2) and (3) provide:

c

'(2) The COurts shall. in the performance of their functions under this Constitution or any other law. be independent and free from interference and subject only to this Constitution or any other law.

(3) The Government shall accord such assistance as the courtS requ ire to enable them to protect their independence. dignity and elTectiveneS$. subject to this Constitution and any othe r law.'

(36) As already noted. the principal application is made in the form of a 'notice of constitutional motion', Neither the: Constitution nor the: Constirutional Litigation Rules (Lesotho Government GaUlt< Extraordinary Vol XLV No 104 (14 December 2000)) makes provision for such a form of

d procedure. It is apparent. however. that the appellant wished to invoke s zz of the Constitution. which provides in itS relevant part:

e

f

9

h

. Enforcement of protective provisions 22(1) If any person alleges thar any of 'he provisions of sections 4 to 21

(inclusive) of this Constitution has been. is being or is likely to be contr.:avened in rtlation to him (or, in the case of :l p<::rson who is detained. if any other person a\Jeges such a contravention in relation to the detained person). Ihen. without prejudice to any other action with respect to the same matter which is lawfully available. thar person (or that other person) may apply to the High Court for redress.

(2) The High Court shall have original jurisdiction-(a) to hear and determine any application made b)· any person in

pursuance of subsection (1 ); and (b) ro determine any queStion .rising in the case of any person which is

referred to it in pursuance of subsection (3). and m.y make such orders. issue such process and give such direCtions

as it may consIder .ppropri3te for 'he purpose of enforcing or securing the enforcement of any of the provisions of seCtions 4 to 21 (inclusive) of this Constitution:

Provided th.t 'he High Court m.y decline ro exercise its powers under this subsection if it is ~tisfied that adequ:ne me:lns of redress for the comnvention alleged arc: or have btc:n available to the ptrson concerned under any other law.'

[37) Having instituted his appeal to this Court in the ordinary course against both his conviction and sentence. by resort to his 'notice of constitutional motion' the appell.nt launched a collateral challenge to the validity of the proceedings before Cullinan Ag J. In his founding affidavit he States:

'1 have instructed my attorney to .ppe.1 against both my conviction and sentence. However. I am advised that the issucs dealt with in this

..J 6'

566 Lesotho '~')04 ) 1 LRC

applica'ion and 'he relief sough, c.nno, be deal, wi,h in 'he appeal ,ha' is 8 being made '0 the Court of Appeal on my behalf.'

In 'he answering affidavi' med on 'heir behalf, 'he respondents sta,ed ,ha , ,his con,ention was 'no, admitted bu, raises a legal question which can be address<:d in argument' .

pS)ln principle. collateral .((acks on 'he validi'), of legal proceedings are b inherently 'roublesome. (Cf Meral and El«trical Worlcm Union of Soulh Africa v NaliolUll Pall4Sonic Company (Parow Facrory) 1991 (2) SA 527 at 530. 532- 533.) The Privy Council deplored the invoking of parallel remedies in these terms:

'Acceptance of the appellant's argumen, would ha\'e the consequence that in every criminal case in which. person who had been convicted C alleged Ih .. the judge had made any error of substantive law as to the neccs$2ry ChU2ctcristia of the offence there would be p3r'alld remedies available to him: one by appeal 10 the Court of Appeal, Ihe other by originating application under section 6(1) of the Cons,itution to the High Court wi,h further rights of appeal to the Court of Appeal and to the d Judicial Committee. These parallel remedies would be also cumulative since the right to apply for redress under seCtion 6(1) is stated to be "without prejudice to any other action with ~ptct to the same maner which is lawfully avaUable". The convicted person having exercised unsuccessfully his right of appeal to a higher court. the Court of Appeal. he could nevertheless launch a collateral attack (it may be years later) on 8

a judgment that the Court of Appeal had upheld. by m.king an application for redress under section 6(1) to a court of co·ordinate jurisdiction. the High Court. To give to Chapter 1 of the Constitution an interpretation which would lead to this rt:sult would, in their Lordships' .... iew. be quite irrational and subversive of the rule of law which it is a declared purpose of 'he Cons,i,mion to enshrine: (See Chokolingo v A·G of f Trinidad and Tobago (1981) 1 All ER 244 at 248-249.)

(38) The Constitution of Lesotho, i, will. however, have been noted. specifically authorises the use of the particular constitutional remedy for which S 22 provides. NO"vithstanding this. 'he proviso to s 22(2) expressly accords 'he High Court the discretion to decline to exercise its powers in this 9 regard if sa,isficd that 'adequate means of redress for the contravention alleged' are available. In my view, they undoub,edly were so .v.i1able in 'he present c:ase, ;\ failure by an inferior court to recuse it.self when required by law to do SO amounts '0 • gross irregularity, which can always be ventilated on .ppeal. (Slal< v Moodit 1962 (I) SA 587 (A).) In these circumstances .• nd h given the inherent undesirabilit)' involved in the duplication of proceedings. the incurrence of unnecess.ry cos .. (bo,h for litigants .nd the state) and the use of scarce: judicial resources, it is nOt at all dear why the court :I quo in this motter did not at least consider the exercise of its power in terms of s 22(2). It is Important that in any future inv0C3,ion of s 22. the High Court should give c"3reful consideration to its po\\'ers under that provision.

(39) The elements of the principal .pplic.tion-and their development before us in written .nd oral argument-<omprise the following main att.cks.

S ole v Cullinan ;luntlett JA) 567

8 The firsl is tha t the firs, respondent's appointment as.n acting judge w.s (as it was stated in the heads of argument) 'tainted wilh irregularities and f.ilure to obsen'e peremptory provisions of the law and the COnstitulion'.

(40J Section 120(5) of 'he Constitution reads:

b I\ppointmenl of Judges of High Court 120 ... (5) If the office of any puisne judge is vacont or if an)' such judge

is appointed '0 .Ct as Chief Justice or Is fo r .n)' reason un.ble to perform the functions of his office or if the Chief Justice advises 'he King that the state of business in High COUrt SO requires, the King. acting in accordance with the advice of the Judicial Service Commission, may appoint a person

C who is qualified to be appointed as • judge of the High Court '0 .ct as a puisne judge of that Court.

Provided that a person ma)' act as a judge notwiths,anding th.t he has atta ined the age prescribed for the purposes of section 121( 1) of ,his Constitution ,'

[41) The compl'ints by the appell.nt in th is regard were essentially that the d first respondent was appointed specifically to try a particular case, and not

generall)': that he was appointed while he held the office of Judge Adv0C3te: and th.t the constitution.1 requirement th.t the Chief Justice advise the King in terms of s 120(5) was no, satisfied.

[42) The undisputed evidence (in the form of .n affidavi t b), 'he Attorne), 8 Ceneral, and a confirmatory .ffid.vi, filed by the Chief Justice himself) is th.,

the Chief Justice formed the opinion ,h.t 'a judge of st. ture from outside the country should be .ppointed to preside solely in this matter' . It is clear th.t (his opinion W3S prompted by the :mtidpaled sole, duration and complexity of the trial of 'he appellant. considerations which h3\'e indubi,.bly been borne out by event.s, Reference is made on the papers to other sim:lcions in

f 'he past in lesotho where acting judges h.ve been .ppointed to deal with one mmer only. Nor is Ihe phenomenon confined to lesolho. Article 82(3) of the Constitution of 'he Republic of N.mibia 1990 is the comp.rable proviSion to s 120(5) of the ConStitution of usotho. It provides:

1\, the request of the Judge President. the President may appoint 9 ActingJudges of the High COUrt from time ' 0 time '0 fill casu.1 vaca ncies

in the Court, or to enable the Court to deal expeditiously with its work'.

(Such .n appoinlment. for the single purpose of adjudicating a dispute between a Judge of the High Court of Namibia and ,he Covernment of Namibi •. was recently made in that country: HanlUlh v GO>'m1m<'llt of tht

h Rcpublic of NamilM 2000 (4) SA 940.) There is. in my view, clearly no limitation in s 120(5) on the appointment of. sUit.bly qualified person '0 aCt as a judge only for the purposes of particul.r litigation. ( It would. of course, be an entirely different state of affairs if an appointment was m,de for the purposes of securing a pUriculu result, or othenvise undermining (he

. primary conStitutional gu.rantees regarding 'he mdependence of the COUrt I and 'he righ' to a fair tri.1 to which I h.ve .Iready referred.) The objection to

the .ppointment of Cullinan Ag J to deal only with the appellant's trial is accordingly ,vithout subst.nce.

--J -..l

568 Lesotho (20041 1 LRC

[43) The next objection is that Cullinan AgJ was appointed an acting judge 8 while he held the remuneroted office of judge advocate. The respondents" answer is the provisions of s 14 of the High Court Act 1978 which provides:

' 14(1) No Chief Judge or Judge shall accept or perform any other office or place of profit or emoluments nOt authorised by law.

(2) Sub·section (1) shall not apply to a Judge who may be tempororily b appointed under section 3(4)".

[44] The appellant sought to meet this by contending that s 14(2) applies to holders of offices of profit outside government service only. such as private legal pr2ctitioners. This is nOt so. The language of s 14(2) is both clear and unqualified. and it is not permlned to impl)' words into a statutory provision c unless they surmount a double hurdie: the implic.tion has to be a necessory one in the sense th3t without it effect cannot be g'iven to the staNte 3.$ it stands: and the suggested provision will not be implied where consideroble uncertainty exists about i.s nature and scope. for it must be precise and obvious. (Rcnn!c NO v Gordon NO 1988 (1) SA 1 at 22 and further au.horities there analysed per Cotbett JA.) d

[45] Then .he appellant contends that the requirements of s 120(5) of the Constitu.ion were not me •. becouse--he asserts-the Chief Justice did no. advise the King that the business of the court reqUired the appointment. No positive evidence \Vas adduced by the appellant in this regard. other than a Iener which the appellant alleges he obtained from what he .erms 'private e investigatOrs'. The letter in question is in fact signed by the Chief Justice as .he chairman'of the Judicial Service Commission: it refers .0 a meeting held on 23 May 2000 when-

'the Judicial Service Commission requested me to inform His Majesty. which I have the honour now to do. th:u the Commission advises His , Majesty to appoint Mr Justice BP Cullinan as acting puisne judge of High Court [sie]. This would enable him to preside in the Ma.supha Sole v LHDA [sic] cose due to be heard during June 2000. The acting appointment is necessitated by the fact that the record for this cose is bulky and the case Itself so much involved that the trial is expected to be long:

[46] The Chief Justice is. in terms of s 132(IXa) of the ConStitution, ex 9 offiCiO chairman of the Judicial Service Commission, and it is apparent .hat he gave His Majesty the King the advice. That he did so arising from a meeting of the Judicial Service Commission and in a letter in which he signs himself as the chairman of the Judicial Service Commission does not negate this. (Cf Deitell v Smuts NO 1939 TPD 58. an inStance where the Governor h Generol of Sou.h Africa appointed an acting judge. purporting '0 act on .he advice of an unspecified number of minis.ers. The Full Bench of .he funsva.1 Provincial Division held .hat the appointment ,vas prima facie made on the advice of the Execu.ive Council 'inasmuch as Ministers are members of .he Executi\'e Council and i. is no. essential tha. such advice should be tendered at .he formal meeting of .he Council'.)

[47) A further major are. of attack by .he appellan. related '0 .he fact tha. Cullinan AgJ received remuneration which was specially agreed. The facts in

Sole v Cuffil (Gauntlett JA) 569

a .his regard are .hat. given .he an.icipJted demands of .he 'rial, endeavours were made to ob .. in the services of a senior re.ired judge '0 preside. Three o.her persons in .his COtegory were approached. bu. in the even. were un.ble or unwilling to take up .he appoin.ment. Cullin.n AgJ was approached. bu. also indicated some diffidence .bou. accepting .he ac.ing appointment.

b Uhimately. however. he indicated his willingness: his remunera.ion WQS

agreed at , le"el significantly higher .han .hat of .he ordin.ry salary of a perm.nen. judge. bu. at less .han half .he usual daily fee of senior counsel.

[48] Two poin.s require '0 be made immediately in .his regard. The first is tha. on .he ·double·reason.bleness· .es. '0 which reference is made in paro (22]. abov •.• he relevant percep.ion for i.s application is a percep.ion

C based on a b.l.nced view of all ma.erial information. The inquiry relotes '0 how a well·informed .• hough.ful and objec.ive observer rather .han a hyper·sensi.ive, cynicol and suspicious person would view .he factS. (Van Rooycn v Start [2003] 2 LRC 533 at (34).) The second observation is .ha •• he position of acting judges is no. n,rrowly to be compared wi.h tha. of permanent appointments. In .he n.rure of things .• ctingjudges retoin in most

d instances cert,in professional ties: they expoct to return '0 .heir o.her lives: and .hey enjoy no tenure. As .his court has previously expressed itSelf:

e

f

9

. ... . he independence of an aCting judge is nOt so jealously guarded as that of 3n ordinary judg~. Ont import2nt distinction is chat an acting judge need no. be appointed for .ny specific period and .hat his appoin.men. may be revoked a< any time if he has been appointed in .ha. way.' (Sec Law Sockt)' of wotho v Prime Minutcr of uJorho (1986] LRC (Const) 481 at 489.)

As .he Appellate Division of South Africa h.s Similarly remarked.

'But during .h •• period (ie of .he temporor), .ppointment] .he ... ing judge is as completely free from executive interference as an ordinary judge. Look.ing at such appointmentS from an idealis.ic. bu •. I .hink. extreme point of view something may be said ag.inst .hem on .he score of lack of independence of .he appointees. But such cri. icisms are somewh •• fanciful and we have '0 weigh against them .he very procticol necessity of such appoin.men.s in the interestS of good order and gO''trnment: (See R vontdo 1939 AD 178 at 186 per S.ratford C).)

(49] In the present case .• he re,sonable and informed obser>·er. no. inclined to suspicion and imbalance. would know .hat Cullinan Ag J had had a distinguished judici,1 career. having served in Fiji .nd Zombia. and .ha< he

h had. as counsel for .he respondentS pointed ou •. during his own ten years 3S

Chief Justice struck down legislation of the militory go"ernmen. as being uncons.itutional. The observer would know from .he factS '0 which I h3\'e referred .hat in no sense had he been handpicked for .he task. bu •• hat .hree other senior retired judges had also been approached. The observer would know. too. tha •• he .rial was likely-as indeed transpired- .o impose great burdens on a presiding officer: .hat Cullinan Ag J would be obliged. for the durotion of the .rial. '0 live away from .he home he had made in his re.irement; and th ••• he remuner •• lon agreed ,vas conSiderably less .han tha.

--J OQ


which senior counsel in private p ... ctice would norm.lly charge. So viewed. 8 these faCtS would not in my assessment surmount 'the double·reasonableness test.

(50] But the appell.nt .lso drew .ttention to the fact that remuner.tion was the subject of communications between Cullinan Ag J .nd the Attorney General. This im'olved the contention that a letter by the first respondent to b the Principal Secretary of the Ministry of Justice relating to the recovery of .inares and dealing with a defective cellphone 'suggestS th. t the [Attorney General] was privy to discussions that were t:lking place be,ween [Cullin.n Ag J] .nd the Mlnls,ry of Justice. There is no evidential support for the exaggcr3tcd inference drawn.

[5 1] Nor is there subs,ance in the contention (as I understand it) that the c appointment of Cullinan AgJ is vitiated by the fact th .. he was appointed on a basis which was agreed. not St3tutory; which entailed payment at a ... te significantly higher than. High Court Judge's salary; and which was tax·free in his hands. \Ve were shown no st.rutory provision which prohibit's this: the Statutory S.l.ries Order 197Z does nOt define 'judge as including an acting judge (as comparable legislation does) and in itS terms appears to .pply only d to permanent appointees. But even if it were to be .ssumed, for purposes of the argument. that the agreed emoluments were at variance with :I statutory requirement. this faC( would nOt- tO the rtuonable obStrver. viewing the matter without undue suspicion. in the way the authorities requirt-gi\'c rise to a perception of • lack of impartiality, in the full factual setting I have /I deseribed in p.ra [49] .• hove.

[52] In concluding. In relation to the principal application, reference must agoin be m.de to the del.y of the .ppell.nt in seeking retusal, in th is instance of CuJlin.n Ag). His own affidavit discloses that from the outset of the tri.1 he was aware of at least some of the grounds on which more th.n a year later he sought to rely in contending for the disqu.lification of the tri.1 judge. His f contention that he nonetheless onl)' became 3w:at: of :111 the m:ltters rel:lting to Cullinan Ag)'s appointment and remune ... tion shortly before the trial ended. is open to doubt. It was not, however, effectively refu ted on the papers. Had it been established that the appellant or his legal representative was substantially aware at a significantly earli« stage of the grounds on which he based the principal application, then the considerations and 9 authOrity set out in para [19] .• bove would have had application in this context too.

[53] For these reasons, in my view the application for the granting of the 'notice of constitutional motion' is .Iso to be dismissed.

[54] The appeal is accordingly dismissed with costS, including the costS of h twO counsel.

Solicitors: EH PhooJolo and Co for the appellant. Wcbb<r Newdigau for the second, fourth, fifth, sixth and seventh respondentS.

R (ProLife A lP - 'ce) v BBC 571

8 United Kingdom

R (on the application of Pro Life AUiance) v British Broadcasting Corporation

b [2003] UKHL23

House of Lords

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Millett, Lord ScOtt of c Foscote and Lord Walker of Cestingthorpe

24-25 ~bruary, 10 April. 15 May 2003

Constir.<ional law - Fundamental rights - Frttdom of e"1'rtJfion - Restriction _ Prior rcsrraint - Broadcilsring - Regulation - Conrenr of prog<ammCl - Offtnsiw

d maurial rtJrriCfion - Tasu and dtccncy rtquirtmtnt - Application - Party tlmion b,...,dcasr - Clai"",nr polirical porty opposing abortion - Pa,ry having sratutory righr ro porr)' tlmion b,oadcast - Clai"",nt subm iuing video 'howing graphiC Ir"r a"u,aU foo rage of abcrttd foctust.$ - BroadtcurCfS dtclining to rratUmit !l((rion bJ'Oddccuc on grounds of rasu, dtttnty and offtnsi''01ess - Whcrher broadcQJUrs applying corr"r j tandard - Rolt of court on application for judicial review of juch dtci.sion _

/I Broadcasting IItr r99O, s 6(1 ) - Hu""'n Rights IItt 1998, Sch 1 - Con,,,,,rionfor rhe Prouttion of Hu"",n Rights and Fundamental Frcedoms 19JO, art 10.

The cI.im.nt was a registered political party which was opposed to abortion. In the 2001 general election the party fielded sufficient candidate. in Wales to

f entide h, under certain Sl'atucory provisions. to :I party election broadcast (PES) in that part or the country. It submitted 3 video to the bro.dcasters th>t illustrated graphically, but accurately and unsensationally. wh.t was involved in abortion processes and included clear images of aborted foetuses in a mangled and mutil>ted State. The broadcasters unanimously refused t ... nsmission of the video on the grounds of taste and decency. concluding

9 that it would be offensive to a very large number of viewers and that transmission of the broadcast would plainly bre.ch both the independent broadcasters' obligotions under s 6(1) of the Broadcasting Act 1990 not to include anything in their prog ... mmes whieh offended against good taste and decency. and the effectively identical oblig.nons of the British Broadcasting

h Corporation (BBC) under its agreement with the Secretary of St.te for National Heritage. The party's application for permiSSion to apply for judicial review was refused by the judge, who considered that the BBC had properly applied the st.ndards of taste and decency which it was by law enjoined to apply. The parry appealed to the Court of Appe.l. complaining that the deci.ion of the broadcasters had infringed its right to rreedom of expression under 3rt 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set OUt in Sch I to the Human RightS Act 1998). The Court of Appeal allowed the appeal, determining that it w.s for ~

LAW REPORTS OF THE COMMONWEALTH

2004 Volume 3

GENERAL EDITORS Emeritus Professor J.mes S Read. LLB Pet~r E SUnn. MA, PhD of Gray's Inn. Bornster Solicitor. England and Wales

SERJES EDITOR J.mes Neville, BeL, LLM

of King's Inns and of Uncoln's Inn. Barrister

SENIOR SUB·EDITOR lan Law. LLB. LLM, EM LE

EDITORJIIL CONSULTIINT Belt y Mould· lddrisu

Director. ugaJ and Constitutional Affairs Division. Commonwtalth Sccrt'lariat

LexisNexis~ UK

500 Canada (2004) 3 LRC

'(1) Does prohibiting posse5Sion of Cannabis sativa for p<rsonal U5C: 8 under s. 3(1) of the Narcotic Control Act. RSC 1985. c. N·1. by reason of the indusion of this subs .. nce in s 3 of the Schedule to the Act (now s I. Sch 11 to the Controlled Drugs and SubStances Act 1996). infringe s 7 of the Canadian Chaner of Rights and Freedoms?

~.) ~O~he ansv.·cr to qutstion I i.s in the :affirmative. is the infringement b justified under s 1 of the Chaner?

A. It is not nectss:2lry to answer this question. (3) Is the prohibition on the poS5C:SSion of Cannabis sativa for p<rsonal

U5C: under s 3( I) of the Narcotic Control Act. by reason of the inclusion of this subSt.nce in • 3 of the schedule to the I\ ct (now S I. $ch 11 to the c Controlled Drugs and Subs .. nces Act 1996). within the legislative COOlpttC!'OCC. of the Parliament of C:1n3da 2.S being a law enacu:d for the p<ace. order .nd good g", .. rnment of Canada pursuant to s 91 of the Constitution Act 1867; 3S being enacted pursuant to the criminal law power in s 91(27) thereof: or otherwi5C:) A . ~· d

ARBOUR). [6OJ For the reasons expre5Sed in the companion ca5C: of R ,. Malmo.l.cvine.

R ,. Caine 2003 SCC 74. [20(4)3 LRC 382 relea5C:d concurrently. I am of the view that the app<al of the appeUant Clay should be allowed only ,,; th e reSp<ct to the charge of possession of Cannabis sativa.

LeBEL ). [61 J Subject to my comment. in R v Malmo·l.cvine. R ,. Caine 2003 SCC 74.

(2004J 3 LRC 382 I .gree with the disposition suggeSted by Arbour J in the f present app<al.

OESCHAMPS ). [62J Subject to my reason. in R v Malmo·!.c>ine. R v u.ine 2003 SCC 74.

[2004J 3 LRC 382 I agree with the disposition suggested by Arbour J in the 9 pre5C:nt app<'1.

Bumrin. Ung<r (Toronto) for the app<lIant. Arrornry Grneral of Canada (Toronto) for the respondent. At~ornry G~eral of On/ario (Toronto) for the Attorney General of On .. rio. h

IInen·comg. A""y Fin14y (Victoria) for the British Columbia Civil Liberties Association.

intc:rvtning. Pa"are. RoI4nd. ROWIMg. ROlhslrin (Toronto) for the Canadian Ch·iI Ube"ie.

A.ssod;uion. intervening.

Sole v R 501

8 Lcsolho

Sole v R

b

Coun of App<al Smalberger. Gauntlet! and Melunsxy JJA

c 2- 3. 14 April 2003

d

e

(I) Criminal procedure - jurisdi<lion - IngreditnU - Locw - No n;drn« Ihal corrupt agreement condwdcd wfthbt thc jwriJdittion - \VhcrHtr court having )urisdi<lion 10 Iry ",,,,,cd - Appropriale 'e,' - Harmful1f«u of offrn« oc",rting in Ihe country - Wn<lh<r basiJ for jurisdiction.

(1) Criminal 14w - Bnl><ry - Slate officiol - Statutory body - Chiif tX<C1Ith'C cha'Xed \\ith bril><ry - AcClLSCd seconded from public "";« - IVh<lh<r «OJing 10 be p"blic offic<r - Offrn« capoble of commission only I')' $laIC officiol- IVhClh<r $laIc officiol 'ynonymou, ,vilh public offie<r - CO", lilul ion of UJOtho 199J. , 114(1) - UJOlho High14ndJ Dewlopmrnl Order 19&6.

(J) Criminal procedure - Proof - Burdrn of proof - Inf<rtnw - Bril><ry - No dir«t tvidmu of corrupt agrtt"Pnenr or intnu - Acnutd rt'l't".aining silmt - No difen(C \vitnt.sstS caUcd - Prou(1(tion tvidtJt(C prcSC?1ting strong cast agairur tU'C'WStd -Inf<rtn«J 10 be drawn from 'iltnet of a""",d - Whelh<r proptr basiJ for conviclion.

f (4) Criminal procedure - Trial - UgiJra,ion rcgu14ling eonduel of liligalion -R.ctJ'Oacrfviry - ArnendmtJtu rhtrtto - Wh(th(T amt"HdmnuJ applitabic to rrial tdrtady commtt1ud - \\'htthtr amtJtdmtJtu substaruiw or proCtdural in naturt -Criminal Procedurc and F.vidrn« ,1<1 1981. " 14J- 14& - Criminal Procedure and Evidtn<e (Amtndmrnl) ,1<1 1001.

9 (.1) COnJCiHllional law - Fundamtnlal righu - Fair trial - Criminal pr«tdurt' -AmrndmcnlJ 10 procedural rule, - F.nlri(J in bank r«onU admissible OJ prima forie proof - Whelh<r inlcifcring wilh 'UNlanlh'C righu of ae",scd - Criminal Procedure and F.vidtnet Acl 1981 . " 14J- 148 - Criminal Proctdurr and F.vidrnet (Amrndmtnl) Acl 1001.

h (6) Criminal procedure - Trial - Reopening of difrn« et1S< - Dcftn« eoun.scl dOJing et1S< - COunscl 141<r app/)ing 10 eo"rr for p<rmission 10 rcopen Ct1S< and (all furlh<r t",iatnet - Trial )udgt txtTrising dooction and rtfosing pamission to rtopen cdSC -IVhClher rif-I imgu14r or improptr.

(7) Sentenring - Bnl><ry - Bril><ry of $late officiol - Serio",neJJ of offence - "'a Urn

to be raxtn inlo cOnJldtralfon - COnJ('("Utiw and cono.rrtnt t(rmJ of impriscnmtnl impo,cd - IVhelh<r basiJ for ,uch diJt inelion - Wh<lh<r miJdir«tion I')' lrial judge. CX7 -

502 Lesolho (2004) 3 LRC

The appellant was a member of the public service. He was seconded to the 8

Lesotho Highlands Development Authority (the LHDA) to be its chief executh-e. He was ultimately suspended from that role. In December 1999 the appellant and others we", arra.igned in the High Court on an indictment .lIeging some 19 counts. including 16 of bribery and twO of fraud . Under s 119 of the Criminal Procedu", .nd E"idence Act 1981. as soon as an indictment in .ny criminal case was lodged \\ith the Rtgistrar of the High b Court. such case was deemed to be pending in that court. After. number of interlocutory applications the .ppellant was ultimately left .s the sole accused under;1 fresh indictment charging him. in general. with the same offences as under the original indictment. In June 2001 he pleaded to the fresh Indictment and his trial proper commenced on th:u date: . In November 2001 the Crown c closed its case. The appellant's counsel indicated that he was .Iso closing the defence case. Later that month the appellant applied to ",open the defence cose. which application was ",fused by the trial judge. At trial. the Crown claimed that the alleged bribers wert: firms. panncrships or joint \"(:nturtrs who were: aw::trded subst2ntial contracts by the LHDA in rdation to a dam construction project. either a.s contractors. for the performance of d construction work. or as consultants. for the: design ::and/or suptrvision of the construction. The: ($$entia) ;l\'crmcnts in rt~ct of each bribery count weTe: (I) an offer by a contractor or consultant to the appellant to use his opportunities or powers ;1$ chief executive to further the private intertsu of the contractOr or consultant concerned. (2) acceptance of the offer and (3) e payment of specific amounts by the contractor or consult2nt to the appellant pursuant to the agreement SO ",ached. The appellant pleaded not guilty to all counts. Thtre was no direct evidenct of any agreement bttween the contr3,({Ors or consult:ultS :md the appell:mt or of the manner in which the appellant was to use: his powers or opportunities to further the former's interestS. Furthermore. apart from onc p2yment. no money was paid by the f contrnctors or consultants directly to the 3ppellant. loe Cra\",'n relied on payments made:: by the COntr2ctors or consuh~nlS to ccrt:ain third persons or intermediaries who. in turn. it was alleged. paid ovtc a percentage: of their ",ceip" to the appellant. At the conclusion of his trial . the appellant was convicted on cle\'cn of the bribery counts, involving the receipt of millions of Maloti . and on both fnud counts. He was sentenced to an effective period of 9 18 year, imprisonment. He appealed to the Court of Appeal against his convictions and sentence on yuious grounds. submitting (i) that there was no evidence which established that any of the ag",emen .. pemining to the bribery counts we", concluded in Lcsotho. SO that the trial court had no jurisdiction to convict the appellant of bn'bcry. (ii) questioning whether he h rtmained a member of the public service. and hence a public officcr. during the period of his secondment when the alleged bribery offences wer<: committed. (iii) daiming that ss 245- 2.48 of the Criminal Procedu", and Evidence Act 1981. as .mended b)' the Criminal Procedu", and Evid<nce (Amendment) Act 2001. could nOt be applied "'trospecti,-ely to criminal proceedings which had already commenced and (iv) that. in an)' evtnt, those sections denied the appellant a fair he.ring in b",ach of s 12( 1) of the Constitution. Furthermo",. the appellant appealed against (v) the ",fusal of

Sole v R 503

8 the trial judge to allow the appellant's applicotion to reopen the defence case. (vi) his convictions generally and (vii) sentence.

HELD: Appeal against convictions dismissed. Appeal against sentence allowed. &ntence of 15 ycors' imprisonment substituted.

b (I) The courts had jurisdiction to try those who were charged mth 'he crime of bribery if any actS In funherance of the offence- already itself committed when the corrupt agreement between briber and bribee wu struck- took place. or harmful effects of the oR'ence occur",d. mtlUn Lesotho. The second ingredient was sufficiently established by the harmful consequence immediately inflicted upon the integrity of public

C adminiStration in Lcsotho by the conclusion of the corrupt agreements. The development scheme administe",d by the LHDA was of g"'at importance to the country: it im'olved Ltsolho·s intern2tional relations and was central to iu economic furore :and its success and integrity mane red vitally to the country. Corrupt agreements by its chief executi\'e with its internation:1I contractors. if est.blished. would be a cancer at its heart (see paras (17H22J. below). Dicta

d of Cubbay JA in MM,a"",a ,. Sralt (l986J LRC (Const) 235 at 244- 245. of La Forest J in L.bman v R (l986J LRC (Crim) 86 at 90 and A·G v Yn/ng Sun .Shun (1987) LRC (Crim) 94 applied.

(2) The common law crime of bribery could be committed onl), by or in respect of state officials. &ction 154(1) of the Constitu,lon of Lcsotho 1993

11 defined 'public office' as any office of emolument in the public service and 'public officer' as a person holding or acting in any public office. 'Public service' was the service of the King in "'speCt of the Covernment of Lcsotho. The term 'state offici." was nOt confined to public officeN. While • .11 public officers qualified as state offidals. the convCrR was nOt true. The concept of :I st:nt official was of wider import and extended be:yond the confines of the

( public service to someone who derived his authOrity from the public seCtor :and performed his duties or functions in the public imerCS't . The Crown had set Out to eStablish that the appellant was a state offici.1 not only because he remained a public officer while seconded to the LHDA. but also because considerations governing the establishment of the LHDA . • nd the cxerdsc of il$ authOrity and functjons. rendered itS chief executivc a Slate official. The

9 question was ultimately one of law and it w;as therefore open to the trial judge to find that the appellant was a state offici.1 on either basis or ... he chose to do. on both. The appellant had nOt ceased to be a public officer on his secondment to the LHDA. Such secondment did nOt se'-er his connection to the public senice. although during the period of secondment the main

h contraCt of employmcnt was in a Sl'ate of suspension. His appointment. terms and conditions of service as chief executh'e of the LHDA we", governed by the Lcsotho Highl.nds De'-elopment Order 1986. establishing the LHDA. which was controlled b)' the gO\-ernment through the responsible minist ... who exercised overriding supervisory administrative :md finandal control O\-er the LHDA. It was difficult to imagine a post of a g",ater public character than that of the chief executh-e of the LHDA. A person in such a position was, in eITecI . employed by the government and deri\'Cd his authOrity from the public seCtor and w;as a Slate offidal for the purposes of the common law co s:v

I I


offence of bribery (sec par3S (Z3H3S). below). Dicta of KOIze JA in Nalional 8 Unhmilyof Lc.solko v MockllSi ( I99S) I99S- I996 LLR·LB 100 (CA) at 10z.-103 applied.

(3) It was consist en I with sound le8"1 principle and authori ty that. whe~ the facts were such as to call for an explanation by an accused and he did not gh'e one, the trier of fact might conclude th~1t :my hypothesis consistent with b his innocence should be discarded as nOt «asonably possible. In considering whether the proved facts exduded every «asonable inference. save the onc sought to be drawn. ~8"rd might be had 10 the accused's faiJu~ to testify. That was nOt to say that such failure gave rise to an inference of guilt; it was merely one of the circumstances to be l:ake.n into account in establishing whelher guilt had been pl'O'o'td beyond reasonable doubl. The question was c nOt whether. on a consider:uion of all the drcunutances of the case. the inference sought to be drawn was a reasonable onc: it was whether the facts were such that 311 other l"Casonable: inferences \vcre excluded. In the instant case there were payments in foreign currency by contnctors and consult:ants to intcrmc:diarics who took put of the proceeds: and p:asscd on the rcst to the appellant. When re8"rd W>$ had to the faC1s and to the system employed. it d was idle to suggest that the original transferors-the comractors and consultants- were: ignOf3nt of the intended dutination of the payments. It W;lS obvious that the:~ had to have been agreements between the contractors and con.suit3nts concerned. the imermedbries and the appellant whereunder Ihe former would pay mone)' to the appellant in ~turn for f"'ours or beneOts e in relation to their pros~cti\"e or actual 3g~ements with the LHOA. It also followed Ih3t Ihe appellant knew precisely that he W2S accepting money as bribes. Moreover. in earlier civil proceedings the appellant had initially denied in OI.)l evidence that he held any bank accounts ()\'erst'3S; his S('3«!'ments were dearl)' relevant and showed nOt on.ly that he was deliberately untruthful under ooth but that his false denials we~ made for the purpose of concealing I his involvement with the intermediaries and. through them. with the contraCtors and consultants. The Crown had presented a strong case against the appelJant. ailing for an answer. but no explanation was forthcoming from the appellant. Although the oppell.nt undoubtedly hod a right to ~main silenl. he W2S .Iso enlitled to teslif)' and his failure to do SO could nOI be ignored a5 3. matter of coum. The: trial judge had erred in hOlding that no 9 ad\'erse inference should be drawn from the accused's silence (see p.ros (78HIOZ). below). Slalt v Mlh(/\\" 197Z (3) SA 766 applied. Nicholas 'The Two Cardinal Rules of Logic in Ra \' Blom' in Fial1"'litia (f.sJays in Memory of OIh'Cr Dtnl)" Sdtrnntr) p 326 conside~d.

(4) In law 3. distinction was drawn between substanth'e law. which defined h rights. duties and oblig.lions. and rules of procedure. which gO\'Cmed or ~g\llated the general conduct of litigation. Ir had been cor~ctl)' conceded by the .ppellant·s counsel that ss Z4S to 248 of the Criminal Procedu« .nd Evidence AC1 19$1 in their original form we~ pur<ly procedural in n .. u~ . The changes brought aboul by the Crimin.1 Procedu~ and Evidence (Amendment) AC1 2001 did nOt .ffect or alter their intrinsic procedural n .. u~ or impaCt upon allY existing subs(3nti\-c rights or obligations, An accused had no vested rightS in purely procedural provisions. Ir followed that the amended

Sole v R 505

8 provisions .pplied to the appellant's tri.1 from the date of their enaClment (see paras (36H38). below). CurtiJ v johannlJ""rg Municipality 1906 TS 308 and MiniJltr of I"uhlic IVories v Hafftj" NO 1996 (3) SA 74S (A) applied.

(S) The amendments to ss Z4S to Z48 had broughl the Criminal Procedure and Evidence Act 1981 in line with simiJ:ar legislative provisions in other

b countries. induding South Africa. where Ihey had been in operation for many years. The)' were dearly designed 10 better regulare Ihe conduct of criminal proceedings by facilitating proof in rclotion to matters of a ~bth'ely formal. non·contentious nature. A review of their relative provisions showed that the amendments did nOt impose new obligatiOns on an accused or interfe~ with substanth'e rightS. They f.cilitared the discharge of the burden of proof

c rtst;ng on the Crown but their application did not rt'suh in prejudice (in the 1e8"1 sense) or lead to an unfair trial. as the legitimare righls of an accused person to challenge disputed matters we~ appropriately cate«d for and protected. 1b the extent th.u the amendc:d prO\'i.sions incorpor;ued prtsumptions which fa \'oured the Crown by giving ennies in the: accounting records. and rel.ted documentalion. of banks both in Luotho and in other

d countries the status of prima facie proof. courts ~cogniscd the p~ssing social need for the effective prosecmion of ctime and that in some c~l.Ses the proS(cution might require reasonable presumptions to assist it in its task.. The prima facie proof pl'O'o'isions r<lated to matters which would generally be considered to be of 3 formaJ, non·contentious nature. proof of which would

e normally nOt be conside~d to operate unfairl), 38"inst .n accused person. Mo«O\·er. an accused was nOI denied the right 10 challenge the evidence constituting prima facie proof: he could ~qucst that oral evidence be heard. Ir followed that the amendments had nOt denied Ihe appell.n t a fair hearing .nd were nOt unconstitUtional (see paros (37J. [39H41). below). Stall v Zuma [199S) I LRC 14S applied.

I (6) A Court had a generol discretion 10 .1I0w a party who had dosed his case to IN:d e\'idencc: at any time up to judgmem. In exercising .such discretion the coun would h;1\"(! regard. inter alia. to the reasons adv3nced for the failure to call such evidence: the m:lteriality thereof: whethc:r due diligence w;u exerdsed; and the question of prejudice. A funher consideration \\'3$ the timing of the txplanation. In the instant case, that had occurred some days

9 after the appell.nt h.d ~ceh'td Ihe Crown's heads of argument. The appellanr had had access 10 mOSI of the documents relied on b), Ihe Crown. The trial judge had the~fore rejected .ny suggestion Ihat the .ppell.nt bc:C2me :1wa~ of the documentation in question onJ)' aftc:r his cas.c: had been dosed. Prospective defence wimesses were nOlion.lly available. identifiable

hand cont.clable befo~ the appellant's case was dosed. but he .t no time sought to eaU witnesses. In the drcumstances there was every just'ifiC'3tion for the tri.1 judge exercising his discretion .g.inst the .ppellant and refUSing the application to lead further e\·idence. The exercise of a discretion by 3 judidal officer in the performance of his judicial funcl lons could be interfered with onl), on cenain well·known limited grounds. No ground that would justify interfe~ncc had been shown 10 exist (see paras [42H 49). below). Ex p NUlhlins 19S1 (4) SA 331 (A) .pplied.

(7) Sentence Wa$ a matter pre-.cminendy in the discretion of the: trial judge. "., W

506 lesothO [2004) 3 lRC

Interference with a stntencc. was J>(nnitted only on well-known. 8 drwmscribed grounds. One such ground was if there had been a material misdirection by the trial judge in his assessment of an appropriate sentence. The trial judge h.d sentenced the appell.nt to sep.rate periods of imprisonment on u<:h count. ordering the: sentences on some counlS to run concurrently .nd others to run consecutively. It was difficult to appreciate b why the trial judge had singled out certain counts to run consecutively: they were not that far remO\"td in time from the other (ountS. It apJXucd that the trial judge had arrived at the ultimate sentence by means of a flawed process. amounting to • misdirection. As • result the Court of Appeal was entitled to consider the question of sentence amsh. The sentence had to express the public .bhOlTence of wh.t had transpired and act as a deterrence to others in c the future . Corruption was inimiC11 to sound public administration. iU(lf essemial to the strength of constitutional democracy: it also threatened i", .. stor confidence. d ..... lopment projects and employment. An appropriate stntencc for the appellant's crimes. on a COI\S~ctU$ of all relevant considerations rdating to sentence. would be an dfective period of 1 S years' imprisonment (see paras (106H IIO). below). d

Cases referred to In judgment A.G v Ycung Swn·Shwn (1987) LRC (Crim) 94. (1987) HKLR 987. HK CA Cwrtu v Joiulnn(Jbw~ Mwnfdpoli.y 1906 TS 308 HiGdhla v Pruidrnt Inswrana Co Lld 1965 ( I) SA 614 (A) e Libman \' R (l986J LRC (Crim) 86. (1985) 21 DLR (4th) 174. Can SC Miulrapora v S.al< (1986) LRC (Const) 235. 1986 (I) SA SS6 (ZSC). Zim SC Minu." of ""b/i( WorXs v Haff<j« NO 1996 (3) SA 745 (A) Na.ioMI Uniwm.y of IAO.ho Y MOtkttJi (1995) 1995- 1996 LLR·LB 100 (CA) Nurhling. Ii.x p 1951 (4) SA 331 (A) Oosrhwizrn v S.anlry 1938 AD 322 I Rv 810m 1939 AD 188 Rv EfI"m", 1945 OPD SO R \' Ismail19S2 ( I) SA 204 (A) Rv S<lc/c.s 1943 AD 413 Rv Whitalc" (l914) 3 KB 1283. UK CA 9 S.al< v D<jag" 1965 (2) SA 612 (A) Stal< v M.httw. 1972 (3) SA 766 (A) S.al< v Mwlew,..", 1993 ( I) SACR 694 (ZS) Stal< v Mzizi 1990 (I) SACR 503 (N) S.al< \. Van D<r S<lndt 1997 (2) SACR 116 (W) h S.al< Y Zwma (l995J I LRC 145. 1995 (2) SA 642 (CC). SA CC

Legislation rtftrred to in Judgment Constitution of LeJotho 1993. ss 12(1). 154(1) Criminal Procedure and Evidence (Amendment) Act 2001 Criminal Procedure and Evidence Act 1981. ss 119. 162(2Xe). VIS- VIS

Land i\ct 1979 Lesotho Highlands Development Order 1986. s 38(IXa)

Sole v R (Smalberger JA)

8 Pensions RegulatiOns 1964. reg 15(1)

Other sources referred to in Judgment COW( Oxford DietioMry (9th edn)

507

HofTman and ZefTert rh( S<l •• h African lAw of Evidrnu (4th edn. 1988) p 476 b Milton S<l •• h Afritan CrimfnallAw and Proadwrt Vol 11 (Common Law Crimes)

(revised 2nd edn. 1982) (reprint 1992) p 227 Nicholas 'The Two Cardinal Rules of logic In R(x v 8Iom' in f"" ]",.i.",

(&says in Mtmory of 0Ii\'(T D<nC)" Sdtrrin<r) pp 326. 328

Appeal C The appellant. Ephraim Masupha Sole. appealed against the decision of

Cullinan AJ convicting him of bribery .nd fraud counts and sentenCing him to 2n effective }>(riod of I S years' imprisoruncnt. The facts arc set out in the judgment of the Court.

E H Ph""folo for the appellant. d G H Prnzhorn SC and H T T Wor/c<r for the Crown.

14 April 2003. The follOwing judgment of the court was delivered.

e SMALBERGER, GAUNTLEIT and MELUNSKY lJA. {I ] The appellant was indicted in the High Court on 3 December 1999

together with eighteen other accused on charges of bribery. fraud and perjury. Objections to the indictment resulted in the Crown. on I June 2001. preferring a fresh indictment against the appellant only. in which he was charged with sixteen Count. of bribery and 'wo of fraud. Pursuant thereto he

I appeared before Cullinan AJ (formerly CJ) on 11 June 2001. He pleaded not guilty to .11 COUnts. At the conclusion of a protracted trial. the appellant was convicted on elt-veil of the bribery counts, involving the rteeipt of miJIions of Maloti . and on both (nud counlS. He was stnu~nccd to 2n cfrecth'c period of 18 yens' impri.sonment. He now appeals against his convictions ;,md sentence.

(2) At the commencement and during the course of his trial the appellant 9 raised a number of legal issues which were the subject of separate rulings and

judgments by the learned trial judge. The appellant also appeals against some of those adverse to him. They will be considered and dealt with at an appropriate stage in this judgment.

[3J The cnminal tri,l arose out of the Lesotho Highlands Water Project h ( the LHWP' or 'the project) . one of the biggest and most ambitious dam

projects in the world. which enta.iJed. inter :a.lia. the construction of the Katsc Dam in • remote and inaccessible part of the highlands of Lesotho. Initi.lly the project invoh .. d the building of the essential infrastructUre. such ... ccess r03ds and accommodation faciJities. One of the main 3inu of the project W;lS the deli"ery of w.ter to the Republic of South Africa. which necessitated the construction of ;l deliver), tunnel. Another object was the generation of electricity and thi.s em:liled the construction of a h)'dropowcr complex and a transfer tunnel from Katse to Muela. where the complex was to be built. All

c>O -{:


of this "'qui",d subslamial funding. mO>l of which nme from outside 8 agencies such ;l$ the World 82nk. the European Commission and the African DevtlopmeOl Bank.

(4] The implememation. supervision :md maintenance of the LH\VP was enlru>led to the Lesotho Highlands Oe,·tlopment Amhority ( the LHOA'). a statutory body c",,,ed by the Lesotho Highlands Oevt.!opment Order 1980. b pursuant to and in temu of a tttaty bttwcen the Governments of L~tho and the Republic of Somh Africa. The LHDA was so, .. med by a board of directors but the day·to·day running of its aff.irs w;l$ in the hands of its chief executh-c officer. Another body. the Joint Permanent Technical Commission (the )PTC). subsequently known as the Lesotho Highlands Water Commission. which was compo~d of repracmativC$ from both Lesotho and c South Africa. acted in an adviSOry capacity to the LHDA and allo monito",d the progr«s of the project.

(S) The appellant is a qualified civil engineer. He W;l$ appointed to the public service in August 1972. He had prog",sscd to the position of Senior Engineer. \Vater Affairs. when. on 1 No\'-embcr 1986. he was ~conded to the LHDA as its first chief executive. He ~r\"td in this capacity until his d suspension in October 1994. He was eventually dismi~d from this post in November I99S. Subsequently the LHOA inStituted civil proceedings ag.inst the appellant in the High Court. claiming damages arising from his .lIegcd wrongful conduct while chief executive. Judgment W:l$ given in f~\'our of the LHDA in October 1999 and an .ppeal by the appellant to this court was e dismissed in April 2001.

(6) &forc considering the evidence, It is appropriate to make some general observations "'Ioting to the bribery counts. The alleged bribers wc", firms, partnerships or joint venturers who were aWOIrded substantial contractS by the LHOA in rel21ion (0 the project, either:l$ Contractors, for the ~tformance of cOnstruction work, or as consultants, for the design 2nd /or supervision of tht f construction. In order to carry out specific .spects of the project some of the firms joined with others to form panntrships or consortia. None of the contractors or consultants g.\\'e e\'idence at the trial although, :11$ 3ppears below. the appt.llant applied unsuccessfully to reopen his case in order to lead their evidence.

(7) 'flIe essential averments in respect of each bribery count were: (1) an 9 offer by a contf2ctor or consu.ltant to the appe1lant to ust' his opponunilies or powers as chief executive to fun her the private interests of the contractor or consult.nt concerned, (2) acceptance of the offer and (3) payment of specific amOunts b)' the contractor or consuhant to the apptlJant pursuant to the ag",ement so ",ached. h

(8) The Crown .lIeged that it "' .. s unable to furnish panicularity concerning the agreements on which it rt:lied, nor, savt in twO or three instances. did it sptcify what be:ndits or amntagc$ accrued or were to accrue to the contractor or consuhOlnt. Indeed there was no direet evidence of any agreement be:tween the contractors or consultantS and the appellant or of the manner in which the appellant W.l$ to u.st his powers or opponunities to further the fomlers' interests, Furthermore, :md 3part from one payment by Dumez (Nigeria) Lld (Dumez Nigeria) .lIegedly on behalf of Dumcz

Sole v R [Smalberger JA) 509

8 Intemnion21 (,Dumez'), no money wa.s paid by the comractors or coruuh"2nts di"'ctly to the appellant. The Crown ",lied on payments made by the comraCtors or consuh2nu [0 certain third persons (referred to as 'intermediaries' in the court a quo) who, in turn, so it is 2l1eged. paid ~r 2

percentage of their ",«ipts to the appeUant. (9] From the .fo",going it is app.",nt that the Crown Clst W;l$ b ... d largely

b on infertnces which it drew from the facts 2nd the essential question that arises in relation to the merits of the appeal is whether the inference of the appeUant's guilt was properly drawn. In this "'gard it is important to note that most of the material f.cts a", not in dispute. The trial judge accepted the material evidence led by the Crown and his factu.1 findings a", I.rgely

c unchallenged on appeal. Mo",over the appellant did nOt gi," e" dence and did nOt call an)' witness« to testify on his behalf.

(IO] ln the absence of .ny substantial factual dispute the", is no need for us [0 n:ame the p3rticular witne.s.ses from whom the netS were established, It is sufficient to say that the ",cords from the South Afrinn and LCSOlho banks, relevant to this inquiry. we", produced by "'p",senlatives of the banking

d institutions concerned: that the documtnts relating to Swiss bank accounts we", supported by affidavits under the authority of Mrs Cova (an <:-.. mining magislrone of Zurich); and that l\.·tr Roux, a director of PricewaterhouscCoopers. Fo",nsic Services (Pty) Ltd, "'lying on the banking records. traced the flow of money from contractors and consu1t~nts to

e intermediaries and from intermediaries to the appellant. All of the afo",said evidence was unchallenged, save that counsel for the appell.nt disputed the OIdmissibility of certain aspt:Cts of Mr Rou.x's evidence which Wtre said to amount to opinion evidence. In the ""ult the trial judge. perhaps ()\~rcautiously. did not have reg:ard to Mr Roux's opinions, but took into account his evidence to the extent that the witne.ss placed Ihe faCts ~fore him

( 'in manageable form'. In addition to the banking and accounting evidence. he .Iso h. d "'gard to the tes.imony of Messrs Putso.ne. Mochebelele and R.foneke and Mrs Mothibeli. Makoko .nd Calla" .. y. among others.

(11 ) &fore proceeding to consider certain background circumstances relc\'am 10 the merit.s, the various counts on which the appellant wa.s convicted and the inference to be: drawn from the cst2blished faCt$, it would

9 be: appropri:ue to deal first with cen.ain other issues which :nOst at different Stag .. during the trial.

JURISDICTtON. BRIBER Y (12] A signir.c.nt part of the 0<21 argument of the appellant's counsel as

h reg:uds conviction on the bribe:I)' counts related to jurisdiction, A spedal plea to jurisdiction had been raised befo", the trial court In terms of s 162(2Xe) of the Crimin.1 Procedun: and Evidence Act 1981 (, the Code'). On 10 May 1991 the trial Court held that it had jurisdiction to try the bnbery counts, giving its ",.sons for the ruling in a I 24·page judgment handed down a week later.

(13] The tri.1 judges approach to the issue was this. The objection to jurisdiction related (in the abstnce of a statement of agreed facts or a.ny evidence at that stage) to the basis disclosed by the indictment. The latter .... ed that the location of the place of the commission of the alleged offence ."'<)

V\


of bribery was unknown to (h~ Crown. In the circumstances, the matter had 8 to be approach<d on th< basis that th< alkg<d agr«m<nt> rdating to <ach of th< bribery counts w<r< mad< oUlsid< Lesolho.

(14) &for< us Ih< qu .. tion is I<ss abserad. Th< obj<ction is nOl ono confined to the indictment; it is th:u, the trial having now conc.luded. there is no <"id",,,< which .. tablish .. Ihat any of th< agr«m<nt> por!aining to th< b bribery count> w<r< conclud<d in L<solho. Th< appollanl', cas<: in summary is Ih.I Ih< crim< of bribery is compl<t< onc< lh< agrt<m<nt belw«n briber and bribee is struck; it requires nothing mort. That bting so, since no evidence shows that the corrupt agrtement$ which the Crown contends (for Ih< r<asons analys<d below. in d<aling with Ih< bribery count» w<r< conclud<d belw«n Ih< appollant and coneraClors to th< LHDA. w<rt in faCl c seruck in Lesolho. Ih< lrial cour! h.d no jurisdidion to convict Ih< appollanl of bn'bery.

[is ) Since this issue goes to jurlsdiclion. wc deal with it at the outset and in advanc< of Ihe d<caUed consid<r.nion of Ihe individual count> which follows. W< approach il on Ihe premis< Ihat thes< count> ar< eSt.blished by the Crown. but without the Crown proving that the corrupt agreements \Vere d concluded in Lcsolho.

(16) The sep.race judgmenl of Ih< cour! in rtl.lion 10 Ihis issue ranged far and wide: as regards diff<rtnt leg.1 SYSlems. differtnt poriods of kgal history and disparac< offenc ... TheS< <XI<nd from actions of debt for pon.hi .. under old English seatUI" againSt usury. to d<.Ihs '1 s<a from blows struck on 8 shor<. 10 ch<ques forg<d in onc counlry and utter<:d In anoth<r. to bigamy. &fore us. how<v<r. counS<1 for bolh the .ppoU.nl .nd Ihe Crown adop«d • narrower .pproach. fOCUsing soldy on Ih< crim< of bribery. Whil< common jurisdiclion.1 principlu porm<ate Ihe ftdd of crimin.llaw. this .pproach is 10 be pr<:ferr<d.

[17] The inquiry becomes y<t narrower g;"<n Ihe acc<pcance by Ihe f .ppoll3nl·s couns<1 of Ihe corrtc,"<ss of the decision of the Supr<m< Cour! of Zimbabwe in MMro,.,ro v SIO" (1986) LRC (Conse) 235. Th< judgment. writt<n for th< COUr! by Gubbay JA (.s h< Ihen was). was ind«d <Xlensivtly quoted by Ih< lrial judg<. WhU< il deals with a th<ft off enc<. Ihis rc>soning appoars 10 us compclling and of <qual appliealion to bribef)' in Lcsolho:

9 '\Vilh rtg.nd to the law of Zimbabwe, I can ~e no justification for a

rigid .dh<r<n« 10 Ih< principl< Ih ... wich Ih< <xccplion of Irc.son. only thost' common law crimes perpctr;)ted within our borders 3~ punish3ble. Thac principl< i, becoming d<ertasingly .ppropriac< 10 Ih< f.ds of int<:rn::lltional life. The f-:adHt)' of communic:uion and of mO\"tment from councry 10 coulllry is no long<r r<:'Irid<d or difficull . Bolh may be h undertaken expeditiously and at shon notice. Past i5 the er2 when aJrnost inv.riably Ih< prtparalion and completion of • crime and Ih< pr<s<ncc of Ih< criminal would coincid< in onc pl.cc. wilh Ihac placc being Ih< one most hunted by its commission. The inevitable consequenc!!! of the d(\'elopment of soci<ty along sophislic.ted Iin .. and th< growth of I<chnology h,,'< led crim .. 10 become mor< .nd mOr< compkx and Iheir capacit)' for harming vict ims even greater. They :arc~: no longer as simple

8

b

c

Sole v R (Smalberger JA) 511

in nature or as limited in thtir effect as they ustd to ht. Thus ... striCt imerpretation of the principle of territoriality could create injustice where the corutituent dcmtnl$ of the crime OCcur in more than one State or when:: the lonu commissi is fonuitou$ so rar as the harm Oowing #Torn a crim< is conc<med. Any r<:luctanc< to libcnlis< Ihe principl< and adopI Anglo·Am<riean thinking could well r<:suit in th< n<golicn cf I~e cbjro cf mmirull IIlw In proleding Ih< public and punishing Ih< wrongdo<r. A mort O<xibl< and rt,listic .ppro2Ch I><ucd on I~e plIlte cf impacl. cr cf ,n/ended iml"'C!. cf Ihe crime 01",1 b< fi,,'Ourrd . Accordingly. I am .. tisfted Ihat •• !though all th< constilu<m clement> of the Ihen occurrtd in Belgium. in particular th< obt~ining of Ih< money Iher<:. Ihe Scale is non<thdess emitled 10 proc«d upon Ihe prtS<nt indictm<m ,nd adduc< (Vid<nc< 2t Ih< tri.1. if such is avail.ble. to escabli.h Ih< fact Ihat Ihe Mrmfol cffeCl of I~e oppdlllnl' mOle WdS fell /ry Ihe Zim""I>w( Go"'",m"'l \Vilh," I~is (CUnlry: (Se< (1986] LRC (Co liSt) 235 at 244- Z45.) (Our <mph •• is)

d As Ih< lrial judge obsen'td. Ih< Suprtm< Coun of Canada (in UI>rruln v R (1986) LRC (Cri m) 86) has .dop«d a simi.lar approach. While it m.y rtmain true that-

8

'( t}hc primary bam of criminal jurisdiction is territorial ... As wdl, along with Othcr typ('$ of protective mcasurrs. Statts increaSingl), exercise juri.sdiction 0\"(( criminal behaviour in other SUtes that has harmful cOn$(qucnces within their own territory or jurisdiction . .. · (Ste (1986] LRC (Crim) 86 21 90 por l> r'Or<st J.)

(18]1' Ihi' approach ineapabl< of appliealion to bribery in a cas<: Iik< Ihe p~scnt becaust' the actus rtus is complete upon conclusion of the corrupt

f agreement. so that its irnplcmcnt;uion, or other conRqucnces. in Usotho corutitute no part of the offenCe? The analogoU$ problem in ,o\1karapara was that. Ih<ft w.s comminw in Brumls. but wilh harmful consequenc<s which emuw whhin Zimbabwe. Similarly. in A·G v YClmg Sun·Shu" (1987] LRC (Cri m) 94- also considertd by Ih< lrial judgc- th< Hong Kong cour!, had 10 d<.1 wjlh a conspiracy concluded in Maeau rd2ling 10 iIIicil impor!' of ivory

9 from Maeau to Hong Kong. Th< cOUr! concluded ({ 1987] LRC (Crim) 94 .. 105):

h

'In our \·iew. the Hong Kong courts have. :and should assume. jurisdiction 10 If)' those who are charged ,v;Ih • conspiracy formed OUI of (he jurisdiction if :lny :let has ~en commiued within (he jurisdiction in funheran« of Ih< 'gr« mcnt:

[ 19] W< consider Ihac Ih< lrial judg< was COr«c! in .dopling 2 similar approach as r<gards Ihe crim< of bribery wh<rt ad. in fUr!heran« of Ih< offen«- .Irtady iu<lf commin<d when th< corrupI agrtem<nI belw«n bn'ber .nd bribe< is Slruck- tak< pl.c<. or hormful <ff«IS of Ih< off <ne< OCcur. within ~sotho.

(20] It is now neceSS2ry to consider whether either postul:ate was established on the evidence.

c;<) ()'

512 lesotho (2004) 3 l RC

(21) The Crown argued that the second postulate w.., sufficiently 8 establi5hed by the harmful consequence immediately inflicted upon the integrity of public adminjstntion in Lcsotho by the conclusion of the corrupt agreements. We agree. The d""elopment scheme administered by the LHDA is. as we h:wc ~l1rtad)' indicated. of great importance to Lesotho. and indeed. to the Southern African De\'C-lopment Community. It io\'ol\'($ l,.(sotho·s b intern:uional relations and is central to its economic fumrt. Its success 2nd integrity maner vit.lly to thi> country. Corrupt agreements by its chief executive with its international contractors. if established. would be a cancer It its hean. Since it is not :1 requirement for the actus reus of bribery that loss be suffered. it is nOt in our vitw necess2ry to consider whether. in addition to harm of this kind. specific harmfu1 effectS arose in rdation to each count for c the St.te of Lesotho.

(22] r-or thest reasons we conclude that the u;31 judge was correct (0

conclude that jurisdiction existed to try the appeUant in Lesotho on the bribery counts.

WAS THE APPELlANT A STATE OFFICIAL AT ALL MATERIAL TIMES! d (23 ) The common 13\\' crime of bribery can only be committed by or in

respect of Slate officials. According to the definition In Milton 50ulh Ajiican Criminal lAW and Proccdu" Vol 11 (Common Law Crimes) (revised 2nd edn. 1982) (reprint 1992) p 227:

'Bribery (.., a bribee) i5 committed by a state official who unlawfully 8 and intentionally 3grtC$ to take any consider.lltion in return for action Or inaction by him in an oA"idal capacity.'

(24) In term, of s 154(1) of the ConSlitution of Lesotho 1993 'public office" means any office of emolument in the public ~rvice and 'public officcr' means a person holding or acting in all)' public office. 'Public strvice' is the f service of the King in rtspect of the Government of Lcsotho. The term 'st:ue official" is not confined to public OfficeN (R v 5o(/cs 1943 AD 413 at 423). While . 11 public OfficeN qualify.., ,t.te offiCials. the com-er><: is nOt true. The conccpt of a state official is of wider impon ~\Od extends beyond the confines of the public service to someone who dcrives his authOrity from the public seCtor :md performs his duties or functions in the public interest (R Y lVhitaktr 9 (1914) 3 K8 1283 (CA) at 1286. Sta/( v M:I:II990 (I) SACR 503 (N).t 506-507 and Sra/( v Muk,w: ... 1993 ( I) SACR 694 (ZS) at 697). Wh<ther a person occupying a ccnain ofl'icc is :I state offici:al in th:lt sense is often difficult to decide and may ultimately depend upon the foelS of a p.niculor case.

[25] As previously mentioned. the appellant w.., a member of the public h scrvice before his secondment to the LHOA in Novcmber ) 986 and returned to the public service after his suspension as chief execuci\'c of the LHOA in October 1994. That much is common cau$C. \Vhat is in iS$Ue is whether he remained a member of the public strvice. and hence a public offic~r. during the period of hi' secondment when the alleged bribery offences were committed. In this regard the trial judge concluded:

.. .. he w.., in f.ct a public officer holding the post of chief e.ecut;'-e of the LHDA . He was. however, first :md foremost. ;1. public oA1cer. and so

8

Sole v R (Smalberger JAJ 513

remained until he e\"Cnrually resigned from public service \\.'hh effect from 22 December 1998. He was then at .11 relevant times a state official. for the purposes of the common law offence of bribery.'

\Vhile: it was not strictly neceSS2ry for him to do so, the trial judge wem on to b consider whether the appellant. in his capacity as chief executive of the

LHDA. was also a state official for such purposes. He held that he was. Both these findings are challenged on appeal.

(26) The appellant's counsel COntended th>t in terms of the indictment the Crown only set OUt to prove that the appellant was a state offidal on the narrow basi> that he remained a public officer during the period of his

e secondment to the LHDA. The tria.! judge w.., therefore not enntled to hold that he was a stale official by vinue of his capacity as chief executive of the LHDA. We disagree. On a proper reading of the preamble to the indictment the Crown clearly set Out to establish nOt only that the appellant was 3 st>te official because he remained a public officer while seconded to the LHDA. but

d also because considerations go' -eming the est.blishment of the LHDA. and the exercise: of iLS authOrity and functioru. rendered its chief executh-c :. st:ue offidal. In any eVent, the qucstion whether the appellant in his capacity as chief executh-e of the LHOA was a state official is ultimately a m:mer of bw which the trial judge was not precluded from determining on the indisputable and common caUst facts pen3ining thereto. It w;u therefore open to the trial

8 judge to find that the appellant w.., a state official on either basis Or. as he chose to do. 011 both.

(27) The argument of the appeUant"s counsel that the appellant ceased to be a public officer on his stcondment to the lHOA wu premised on such secondment sevcring his connection to the public service. That is 3 false premise for it disregards the true mcaning and import of secondment as well

f as the express terms of .he appellant'S secondment. In this respect the Con<is< Oxford Dictionary (9th edn) defines the verb 'second' as 'transfer (offiCial) temporariJ)' to other employment or to another poSition' and in Natiorwl Unh=iry of usctho v M()(kcrsi (1995) 1995- 1996 LLR.LB 100 (CA) at 102- 103 it was said (per KOtu JA):

9

h

'The word secondment means transfertnce of a person from One post of employment to another Or to rtndcr :lvailable the services of ~ person from one deparunent to ,Ulother. Implicit in a COntf'3ct of S('condmem is that when it terminates the COntract of employment bct\"'C'en the seconder and the person seconded resumes:

\Ve agree with the tri31 judgc that the use of the word 'resumcs' indi~tes that the COUrt was of the view that during the period of secondment the main contf'3ct of employment was in a St<lte of suspension. The terminology used is not compatible with the notiOn of severance.

(28) This conclusion is reinforced by the terms of the letter addressed by the acting Principal Secretary in the Ministry of the Public Service '0 .he appellant informing him of his secondment. to which we were referred by the Crown counsel without challenge. It provides, inter alia:

tKJ ....J


'Your secondment appointment may be terminated by the Government 8 at any time afur informing Lesotho Highlands without any reason being assigned and, in the (\"eOt of such termination. you will reven (0 your substantive or similarly graded post and enjoy the sabry and seniori!), you would have held had you not been seconded, Ple;J.5C note that your period of secondment. [will ) not (constitute) a break in your pensionable b str\riu. for purposes of computing your terminal [sic) benefits:

(29) Mrs Makoko. the Director of Employee Relations in the Ministry of Public Service. confirmed in her evidence that the appellant's salary rights wert: pn:..scr\'cd during his secondment so that on his return he bc:ame cntitled to the:: incremental increa$t$ he would have obtained but for his c secondment. While she further testified that his pension rights did not accumulate during stcondment it is very likely that she was mi$l'aken in th:u regard as her e\.;dence is not only contrary to the second quoted paragraph in the appellant's Iwer of secondment but. as pointed out by the trial judge. is also at variance with reg 15(1) of the Pensions RegulatiOns 1964. which reads:

'Except as otherwise provided in tht5e regulatiOns. on.ly cominuou$ public service shall be taken into account as qualifying service or as ptnsionable service: Provided that any break in service caused by temporary susptnsion of employment in the: public ~rvice nOt :arising from mis<onduct or voluntary r~signa tion shall be disregarded (or the purpose of this paragraph:

Neither the terms of the letter of secondment nor the provisions of rtg 15(1) wert drawn to Mrs Makoko's attention when she 82vc: c:vidence.

d

e

(30) Despite misgivings about Mrs Makoko's cvidence in this latter respect. the trial judge: proceeded on the assumption that her evidence was correct. At the \'ery leaSt. even if they did nOt .ccumulate. the appellant'S pension rights f wert pre~rved during his secondment and resumed on his rtturn to the public service. \1" hich is in keeping with suspe:nsion rather than sc""trance.

(31) In the result. the tria.1 judge's finding that the appellant's 'sub"anti\" POSt was that of public officer (at a grade of no less than Senior Engintcr). whilSt he «mporarily held the post of chief exeruth" of the LHDA: leading to the: conclusion-quoted in para [2S J. :above- that he was at :all material 9 time5 a public officer-cannot in our view be faulted .

[32J Although not strictly required we proceed to consider whether the appellant. in his capacity as chief ex«uti\". e\"n \vithout ties to the public service. Still qualified .s a State offici.1. The trial judge, with commendable diligence. did a det3i1ed and thorough analysiS of .11 relevant authorities. h legislative :and 3dminU:trath·t provisions and rd;ued conside:r.uions bearing on the question. No purposc would be: ~ryed in traversing the: S2mt ground in the S2me detail. \Ve sh:aU confine ourselves to what we consider to be the more salient features.

(H ) The .ppellant's appointment as chief exeruti\'e of the LHDA. and his tem" and conditions of service. were go\"med by the Lcsotho Highlands Authority Order 1986 ('the Order) The enactment of the Order w.s • direct consequence of the treaty between the Governments of Lcsotho and South


8 Africa. the purpose of which was to provide for the establishment. implementation, ope:ntion and maintenance of the LH\VP to the mutual benefi t of both countries, but. more part;rularly. Lesotho, The treaty itself made provision for the appointment of a chief executh't and the delineation of his functions, The project was ultimately to be controlled by the

b G",,,rnment of Lcsotho through the rtlcvant minister- the Minister responsible for Water, Energy and Mining, In terms o( s 38(I Xa) of the Order the exercise by the LHDA of any of its functions was 'deemed to be (or public purposes within the meaning of the land Act 1979', The Order as a whole dearly indicated that the lHWP wos to be for the public benefit. The minisler's authori ty ranged (rom the appointment md dismissal of members

c of the board of Ihe LHDA. ha\oing his own Principal Secretary as chairman of the board. to the power to appoint and dismiss the chief excrulh'e, Funhermore. the: minister exe:rcise.d overriding supervisory administrative and financial control over the LHDA, It is a!so true to say. as found by the tri.1 judge:. that the source: of the: chief executive's emoluments was at least in part public funds,

d (34) Consequently. the trial judge went on to hold that the LHDA-

'in the consthurion of its board. in the o\'erall control of the minister. was drecti\'Cly a government body controlled by go"'Crnment. It ""';1$ also partly funded by go\"rnment. The accused was 3ppointed by no less th.n the: minister .. :

e He concluded:

f

9

h

'In brier. it is difficult to imagine a POSt of :a grtater public character than that of the: chief executive. Clearly the accused W:35, in effect. employ~d by go\"rnment and dcrived his .uthority from the public seCtor. On a considerat'ion of :1I1 the: above authoritie$ I conside:r th:u his employment would meet the: test set in any of those: cases. I wish to tmphasise.. th:tt t\'cn wert it not the cast th:u the accuse:d was also a seconded public officer. I am satisfi~d that. in any event. for the purposes of the common law offence of bribe'),. he was a stOIc offici.1 at the relevant time.'

(H) It has nOt been shown that in his o\'erall assessment of the relevant authorities and m::uerial considerations in relation to this aspect the trial judge misdirtcted himsdf in any rtspect or that he: came to 2 wrong conclusion in law, In our view ht correctly held that the appellant. while chief executive of the lHDA. was a state official and thus capable of being bribed,

SECTIONS 2<' TO 2<8 OF TilE COOE (36) l"e next Issue relates to the .ppllcability and cOI"ti tulionality of

ss 245- 248 of the Code. as amended by the Criminal Procedure and Evidence (Amendment) Act 2001 which came into operation on 8 March 2001. On 7 Dccember 1999 the appellant and 18 other acrused Wert .rraigned in the High Court on an indictment all<ging some 19 counts, including 16 of bribery. In terms of s 119 of the: Code. 3S soon as the indictment in 3ny criminal case has been lodged with the Registrar of the High Court. such case C>a

C><1


shall be deemed to be pending in that court . At the latest. the cose against the 8 appellant was pending as from 7 December 1999. After a number of interlocutory applications the appellant was ulrimately left as the sole .ceused under a f~sh indictment charging him. in the main. with the same offences charged under the original indictment. He pleaded to the fresh indictment on 11 June 2001 and his trial proper commenced on that date . It is. moot point whether the proceedings against the appellant only commenced when the b fresh indictment was lodged. which probably occurred after the amended ss 245 to 248 came into operation. However. the Crown has consist<ntiy adopted the attitude that the proceedings against the appellant commenced when the first indictment was lodged. and were pending when the amended sections became operative. The trial judge .pproached the matter on that c basis. and we shall do likewise.

(37) Two main submissions we~ advanced on behalf of the appellant. The first was that the amended provisions could not be applied ~trospecti" ely to criminal proceedings which had already commenced. The second was that they we~ unconstitutional to the extent that they denied the appellant a fair hearing in b~ach of s 12( \) of the Constitution. d

[38) The first submission is without any merit. In law a distinction is drawn between substantive law. which defines rights. duties and oblig3lions. and rults of procedure which govern or regulate the general conduct of litigation. As a guiding prindple . every a.lteration in procedu~ applies to every case subsequently tried. no matter when such cose began .. .' (Cllrtis v Joha""CJburg e MUllicipality 1906 TS 308 at 311 ) provided it does nOt impact upon existing substantive rights and obligations (Minister of Public Wo,*, v Haffeju NO 1996 (3) SA 745 (A) at 753). It was correctly conceded by the appellant 's counsel that ss 245 to 248 in their original form were pu~ly procedural in nature. 'me changes brought about by the amendments to ss 245 to 248 did not affect or alter their intrinsic procedural nature or impact upon any eXisting substantive ( rights or obligations. An accused has no vested rights in purely procedural provisions. In keeping wi th the general principle enunciated abo"e the amended provisions applied to the appellant's trial from the date of their enactment.

[39) With ~gard to the second submission . the appellant 's counsel contended that the amended provisions. as he put it. 'had changed the rules of 9 the game' thereby denying the appellant a fair hearing. As pointed out by the trial judge in another of his commendably thorough judgments. the amendments bring the Code. as far as the matters dealt with are concerned. in line with similar legislati"e provisions in other countries. including South Africa. where they have been in operation for many years. 'mey were clean)' h designed to better regulate the conduct of criminal proceedings by fadlitating proof in rel3tion to matters of a relatively forma1, non-contentious nature. We do not propose to embark upon a comparison of SS 245 to 248 in their original and amended forms. 'mis was done b)' the trial judge. 1\ review of their relath"c pro\'isiolls show that the amendments have nOt impose:d ne\,' obligations on an accused or interfe~d with substantive rights. They facilitate the discharge of the burden of proof resting on the Crown but their ___ 1:_. : ..... .. ..a ......... ... ,. . _ .... 1. ; ............. : .. Ai,. ... It n , )" ... 1 ... &101 fi"'n<-"\ nr 1"'::II({ tn!lln unfair


8 trial.s the legitimate rights of an .ccused person to challenge disputed matters are appropria tely cotered for and protected.

[40) To the extent that the .mended provisions incorporate presumptions which favour the Crown by giving entries in the accounting records. and related documentation. of banks both in Lesotho and countries outside the

b status of prima facie proof. courts recognise ' the pressing sod.1 need for the effective prosecution of crime. and that in some coses the prosecution may require reasonable presumptions to assist it in its task' (Stalt v Zuma (1995) I LRC 145 at 166). Here the prima facie proof provisions relate to matters which would generally be conside red of 3 formal . non·contentions nature. proof of which would normally nOt be considered to operate unfairly against

c an .ccused person. Nor can the mere fact that the evidence is tendered in the form of an affidavit render the trial proceedings unfair (cf Stalt v Van D<r Sandt 1997 (2) SACR 116 (W) at 132). An accused is not denied the right to challenge the evidence constituting prima fade proof. He may request that oral evidence be heard. The fa ct that it lies within the discretion of the presiding judicial officer whether Or nOt to grant such request does nOt lead to

d unfairness: One assumes the proper exercise of such discretion . [41) In our view the trial judge correctly concluded that the amending

provisions did not impinge upon the fairness of the trial. were nOt unconstitutional and were applicable to the conduct of the trial.

e APPlICAnON TO REOPEN [42) Ikfore proceeding to deal with the appeal against the merits. there

remains to be conside~d the appeal against the trial judgt's refusal to allow the reopening of the defence case.

[43 ) The Crown closed its case on 8 November 2001. The appellant 'S counsel immediately indicated that he was closing the defence case. The tri.1

( judge observed that he had nOt yet ruled on whether there was a case to meet (which strictly speaking he was not required to do in the absence of an applicotion for discharge). He then proceeded to rule that there wos a case to answer whereupon the defence case was formally dosed. Dates were set for the delivery of the Crown's and the defence's heads of argument . being 16 and 26 November respectively. with argu ment to be heard on 29 and

9 30 No,·ember. On 16 November the Crown's heads were duly delivered: and on 21 November the application to reopen the defence cose was med on the .ppellant·s behalf.

[44) The appellant annexed to his founding affidavit some 37 letters and communications that had passed between the chief executive of the U lOA

h and various erstwhile contractorl consultant accused during the latter half of 1999. The correspondence comprised. in general . requests for explanations regarding alleged payments to the appellant and repliu of an exculpatory nature from such erstwhile accused. What the appella nt sought was an order to subpoena 3 witness to produce: such documents in evidence: 3S well as to subpoena certain consultants / contractors to give evidence before the court or on commission. The application was based on the alleged non·disclosure of the relevant documentation by the Crown and. consequently. the appellant's ~lIl'o,,"" I,,. ,, ,..r ...... ,.. ... 1 .. .,,1 ..... 1'0.( .... _ •• 1 _ _ • _ _ • __ _ _ -,,_ 1 ,_ .t. .. .. ,.. • ..

IX? -Sl


and rdevant to his defence. In a comprehensive judgment. which traversed all 8

relevant material. the trial judge concluded that the apptication had nOt been brought in good faith and accordingly dismi=d it.

(45) A court has a general discretion to .lIow a p.rty who has closed his case to lead evidence at any time up to judgment (Hoffman and Zeffert The South "'/riean lAw of Evidenu (4th edn. 1988) p 476). In exercising such b discretion the coun will have regard. inter ~lia. to the reasons :tdvancc:d for the f.ilure to call such evidence; the m>teriality thereof; whether due diligence was exercised; and the question of prejudice (c f Oc.uhuiun v Stan/e), 1938 AD)22 at 333 and H/adh/a ,. President /l\Suranu Co ud 1965 (I) SA 614 (A) at 622). A further consideration is the timing of the explanation. In the present inst.nce this occurred some d.ys after the appe.llant had received the c Crown's he.ds of argument. That raises the spe.ctre of the spe.cial danger that 'there is .Iw.ys the possibility. such .s hum.n frailty. that an .ccused. having seen where the shoe pinches. might tend to sh.pe. evidence to meet the difficulty' (Stat< v Dejager 1965 (2) SA 612 (A) at 613) or. for that matter. might seek to avoid or dd.)' its consequences (see .Iso in this regard the references to lVigmorc in H/adh/a 1965 (I) SA 614 at 621 ). d

(46) In response to the .ppe.llant·s .pplication the Crown called Deputy Commissioner Matsoso as a witness, He testified that. some months prior to the commencement of the trial prope.r in June 2001 he had furnished the .ppe.llant with • bundle of documents. a copy of which he identified in evidence. It transpired that the bundle contained copies of all but four of the e copied documents attached to the appe.llant·s founding affidavit. The trial judge .ccepted Deputy Commissioner M.tsoso·s evidence after subjecting it co (-artful scrutiny and evaluation in the light of other rtIC\'3nl documentation. He further concluded that the ap~lIam must ha\'c ::acquired access to the: remaining four documents during the course of his trial through his connections with the LHDA. The trial judge therefore rejected an)' f suggestion that the appellant only became aware of the documentation in qutstion after his case had been closed. The appe.lIant·s counsel was unable to point to any misdirection by the trial judge in his evaluation of the e,'idence and the conclusion he reoched in that regard.

(47) Arising from such finding it was ine\'itoble that the trial judge would hold. as he did. that on the pape.rs before him the appe.Uant had for some time g been aware of the probable general defence of his erstwhile co·accused. implicit in which W3S a denial of their complicit), in. or knowledge of. any alleged bribery of the appe.llant. Their previous association as co·accused. the interaction of their legal representoti\'es (which included. joint meeting of counsel repre~nting them held on 2 May 2000) and disclosures made by or h on behalf of certain of the former co·accused at preliminary court hearings wouJd all ha\'e contributed to such 3wareness. Prospecti\'e defence wimessts were notion.lI)' a\,.il.ble. identifiable and contactable before the appe.llant's c.se " '3S dosed. In this respect the trial judge obse,,'Cd:

'From the moment of their notional avail3bility, 1 cannOt but imagine that the accused. duly advised. considered whether or nOt he should call


8 particular individuals as witnesses, ;and \\'hether, in view of imptnding trials. and the privilege against self·incrimination. the individuals might wi5h to gh"t ~idence . '

(48) Although the circumstances in which the appe.lJant ultimately came to close his case allowed occasion for reflection. he at no time sought to call any

b witnesses. nOt did he seek an)' opportunity. by way of postponement or otherwise, to do so. No :acceptable reason Or explanation exists for hjs failure to do so. The appe.llant has ne\'Cr suggested that his case wos closed contrary to his instrunions.

(49) In the circumstances there was every justifiC>tion for the trial judge exercising his discretion againSt the appe.Uant and refusing the application to

C lead further evidence. The exercise of a discretion by a judici.1 officer in the pe.rform.nce of his judicial funCtions can on I)' be interfered with on certain well·known limited grounds (Ex p Nuthling 1951 (4) SA 331 (A) at 335). No ground th.t would justify interference has been shown to exlst. In respe.ct of this ground of appe.al. too. the appe.llant muSt fail .

d mE MERITS

(50) The process of awarding COntracts for the LHWP frequently commenced with what " '3S called the ·pre·qualillcation· procedure- a request to potential contraCtors Or consultants to submit tenders for 3 particular

e aspe.Ct of the project . MoSt funding agencies usually insiSted on a pre·qualification list and the chief executi,'C also had the right to require it . I\n eV2lu~u ion commiuee, some of whose members were appointed by the chief executive. usually assisted by outside consultants. then considered the tenders and nominated :1 preferred tendercr to the chief exec\Uh·e. He, if satisfied with the preferred te"dercr, recommended the contractor or consultant to the

f JPTC and thereafter to the LHDA board which made the final decision. In an appropriate cose the chief executh'C apparently had the right to request the evaluation committee to reconsider its nomination. After the LHOA's appro\'al of a tenderer. a negotiating committee (usually consisting of the S3mc ptrsons as the evaluation committee). entered into negotiations with the contractor or consuhant in order to rtsolve any uncertainties or

9 qualifications contained in the tender. If these were disposed of satisfactOrily. an agreement. known as a memorandum of understanding ('MOU') was concluded between the LHDA and the tenderer. A letter of acceptance or a contraCt would signify formal approval.

(51 ) By October 1986. at the time of the appe.llant·s appointment to the h LHDA. the design work on the project was under way. One of the Ilrst

consuhants to become iO\'oh'cd in the project was AcrC's International Lld ( Acres). a Canadian compan),. From the beginning of 1987 I\cressupplied key pe.rsonnel to the technical division of the LHDA. initially pursuant to contract 19 and. on the expiry thereof. under COntract 65. which was Signed in February 1991. The POSts occupied b), Acres s emplo)'ees on the LIIDA included the technical m:lIlager. chief engineers and chief design engineers. They \,,'cre concerned with running the technical ;md engineering side of the LHDA. the supe.rvision of the work of other consultants. the provision of

...... 0 Q

520 Lesotho [2004) 3 LRC

assistance in tht preparation of t~nder documents and the (:\'3Iu3tioo of 8 ttnders. The con'",cu between Acres and the LHDA were dearly luc",.ive and a"hough no precise figures are available, .he LHDA paid Acres at leas. M 1 S million and 22 million Canadian dollars ('CAD') be.ween Sep.ember

1991 and June 1999, according.o the trial judge's rough es.imate. [S2) When con.",c. 19 came '0 an end only Acres was invi.ed '0 submit a

proposal for a sub~qutnl contract. It was in this W3)' that contract 65. u:rmed b ;1 sole.sourced contr3C(. came into operation. It continued in forct until 31 OCtober 1999. During the currency of this contract .here was conside",ble dissatisfaction .mong Leso.ho engineers within the LHDA. This arose Out of the follOWing circumstances. It was due to a shortage of suitably qualified and skilled engineers in u-sotho that }\ erts obtained the contracts in the first c place. It was obliged to train local .echnicians to en.ble them .0 occupy important positions wi.hin the LHDA. This. according to the complainu. they failed to do. The appellan. conceded as much at a meeting called by the local engineers during February 1994. More importantly. the engineers objected.o the fact .hat the appellant had promo.ed Acress personnel wi.hou. jus.iflc3tion. while o\·erlooking the d.ims of local engineers for d advancement. These complaints wert confirmed by Mr PulSOane. an engineer. in his evidence. but despi.e the absence of a denial by the defence, .he evidence falls short of establishing beyond reasonable doubt that the appellant had indeed favoured Acres, although it may be noted that the remunemion due '0 Acres depended, inter alia. on the number of their 8

employees engaged by .he LHDA. [53) In )988 certain cOntractOrs were invited to tender for the construction

f

of the northern access ro.d to Katse Dam (con.",Ct 1(4). Sixteen tenderers prequalified. Dumez was not one of them but the appellant, on the advice of Acres, recommended the inclusion of Dumc:z. The recommendation \\'as accepted and Dumez W3S included. After the receipt of tenders, Dumez was recommended and appointed as the preferred tendertr for the contract at a contract price of MS4 million. The MOU was signed and work commenced early in 1989. Dumez made substantial claims for exu''"J paymentS 3$ the work progressed and a dispute arose concerning the amount to which it was en.itled. In June 1991 the appellant, a Mr Schutte (the consulting engineer) and DumC'z's rtpresentath'es met in Paris. (The fact that the appellant was in 9 Paris at .11. while in Europe for the ostensible purpose of attending a conference in Vienna, was the subject of one of .he froud counts). Dumez alleged th ••• he appellant had settled i.s claims a •• he Paris meeting. This was denied by the LHDA. The dispu.e proceeded to arbitt2tion. Dumez again raised the issue of the Paris agreement. Even.ually, and during 1994. the h arbi.ration was se.tled b)' a payment of M90 million to Dumez. On behalf of the respondent it w.s submitted th.t these f.cts established that the appell.n. had benefited Dumez by agreeing .0 a subs.an.ial se.t1ement of Dumez's disputed claims when he had no authority from the LHDA to do so. This, it was argued. was funher proof of the appellant's ill\-oh'ement in a corrupt scheme with Dumez. The short answer to this submis..qon is that thert was no evidence of an agrtelllent lxt ween DUlllez and the :.1ppellant at the Paris meeting. It is .rue that the .ppell.nt ga\'C no expl.nation for his unauthorised


8 visit to Paris. But Dumez did no. give evidence about .he alleged settlemen. and .he appellant made no admission in that regard. I. follows that there is no merit in the Crown's submissions on .his aspect. It also follows that the .rial judge erred in holding that .he appellant had acted in an unauthorised ma.nner in relatlon to contract 104.

b (54) A French firm known as Spie B •• ignoIlO$ ('Spie') was .Iso invo"'Cd in .he LH WP. I. was awarded .he contract for the cons.ruction of .he Katse village in AuguSt 1989. I. was also .he successful tenderer for corrying out civil works and the erection of buildings for power supplies, sub·stations and border crOssing fadli.ies. All of these con'",cts were commenced during March 1990. Spie, more()\'Cr, was the leading partner (or a substan.ial

c participant) in two pannerships or joint "en tu res. known as LHPC and MHPC respectively. Bo.h partnerships consis.ed of .he same firms, save .hat a firm known as LTA. while nOt :I Illeml)(r of lHPC. was a participant in MHPC. In 1990 LHPC was designated as .he preferred tenderer for building .he t",nsfer tunnel from Kal$e '0 Mud. (a. a COntroCl price of M822 million) and deli \'ery tunnel from Muel. '0 Sou.h Africa (a. a COnt",CI price of M422

d million). MHPC was awarded very substan.ial contraCtS for .he Muda Power Sta.ion civil works, steel lining and ga.es (COntr3ct 1291\) in December 1994 and for the Muda Dam infrastruCture .nd operations building (COnt"'ct 129B) e.r1ier during that ye3r.

[SS} Ques.ions concerning alleged irregulari ties in respect of con'",ctS 129A e and 1298 were raised in the court :I quo and in this court. These COni nets.

rel •• ing to hydropower aspects. did no' invo"'C the JPTC .t that .ime. When the tenders we~ read out for COIHr3ct 129A. the lowest tendercr W:lS :\ firm known as Skansk .. . MHPC's tender contained a modification which was not read Out when tenders were: opened. The efTeCl of the modjfiation was to reduce .he .ender price of MHPC. The upshot w.s .h.t while the con'",Ct

f was t\·en.ually .warded to MHPC, the funding agency, .he Africon De\'elopmen. Bank, withdrew i.s sponsorship for the contr.ct .nd .he LHD,\ was obliged to resort to commercial loans to rinance it. \Vith reg'ud to COntract 129B, .lthough MHPC was design.ted as the preferred .enderer, • serious dispute W2S encountcrtd when the negotiating commiuee met with the firm in accord~nce with Ihe normal practice. MHPC required the

g eSC3lation dause to be 'pplied before, ins.ead of after, .he deduCtion of :ldv3nce p:l),ments. the tlfeet of which would be to incre35c the contract price. The nego.iating committee refused '0 accede to this. One of .he Significant reasons for the committee's decision was that. if agrted to, it would unfairly prtjudice the unsuccessful tenderers who had tendered on the

h basis .hat escala.ion would be applied only after .he ad\'ance pa),ments were deducted. MHPC indicated th.t it would ·bypass' .he nego.i3ling committee. This is precisely wha. happened. The MOU was signed by a Mr Ramollo and .he letter of acceptance by the appell.nt. Bo.h contained .he requirement of .he tenderer. The appellant dearly knew of the disputed issue and ob\'iousl), had decided '0 benefl. the tenderer. As a result of his decision, the funding agency, .he European Commission, refused ' 0 provide sponsorship to .he extent '0 which the contract price had been increased and .he LlIDA (or the go\'ernment) was obliged to find funding elsewhere.

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Documents

LAW REPORTS OF THE COMMONWE ALTHLAW REPORTS OF THE COMMONWE ALTH 2004 Volume I GENERAL EDITORS Emeritus Professor J.mcs S Rc.d, LLB of Cray's Inn, Barrister Peter E Slinn, MA, PhD