Rex V Lekitla (CRI/T/0115/2023) [2024] LSHC 190 (15 October 2024)

 

 

 

 

IN THE HIGH COURT OF LESOTHO

 

HELD AT MASERU                                 CRI/T/0115/2023

 

In the matter between

REX                                                                 CROWN          

AND

LEKITLA                                                         ACCUSED

 

Neutral Citation: Rex v Thabiso Lekitla CRI 190 (15 October 2024)

 

CORAM           :       HLAELE J.

HEARD            :       17 SEPTEMBER 2024                     

DELIVERED    :       15 OCTOBER, 2024

 

 

SUMMARY: This is an application for the recusal of a judge. The accused failed the double-reasonable test. As such, the application for recusal is dismissed.

 

 

 

ANNOTATIONS:

CITED CASES:

1. Rex v Kamoli (CRI/T/0001/2018) [2022] LSHC 17 (11 May 2022).
2. R v Saule 2009 (1) SACR 196
3. Sole v Cullinan NO and Others, LAC (2000-2004) 572 at 586E – 587A.
4. Mafongosi v Regional Magistrate, Mdantsane & another 2008 (1) SACR 366 (Ck).
5. Daniel v PRASA (01663/14) [2019] ZAGPJHC 139 (9 May 2019).
6. Letuka v Minister of Justice and Human Rights and Others (Constitutional Case 10 of 2010) [2014] LSHC 45 (19 May 2014).
7. Manyokole v The Prime Minister (CIV/APN 463 of 2020) [2021] LSHC 3 (18 February 2021).
8. Fako V Director of Public Prosecutions (C of A (CRI) 3 of 20) [2020] LSCA 49 (30 October 2020).
9. Rex v Kamoli (CRI/T/0001/2018) [2022] LSHC 17 (11 May 2022).
10. Kamoli v Director of Public Prosecutions (CRI/T/0002/2018) [2022] LSHC 29 (4 April 2022).
11. President of the Republic of South Africa and others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC) at 177B-E.
12. South African Commercial Catering and Allied Workers Union and Others v Irvin and Johnson Ltd (Seafoods division Fish Processing) 2000 (3) SA 705 (CC) at 713.
13. Helow v Secretary of State for the Home Department and Another [2008] UKHL 62.
14. Rex v Tumelo Moseme and others (no1) (CRI/T/02/20120) [2020] LHSC 6 (30 November 2020).  
15. Majali v S (41210/2010) [2011] ZAGPJHC 74 (19 July 2011).
16. Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General) [2015] 2 SCR 282.
17. Essa v Judicial Commission of Inquiry into State Capture and Another (2022/009834) [2023] ZAGPJHC 883 (4 August 2023).
18. Mofolo v Director of Public Prosecution (CRI/T 10 of 2018) [2021] LSHC 65 (23 April 2021).
19. Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC),
20. Paweni & Another v Acting Attorney – General 1985 (3)720.
21. D’Anos v Heylon Court (Pty) Ltd (CC 46 of 2018).
22. R v Abdroikor [2007] 1 WLR 2679 at para 15.
23. Belize Bank Ltd v AG of Belize
24. Prince Jefri Bolkiah v State of Brunei Darussalam [2007] UKPC 62, para 16.
25. Re JRL: Ex parte CJL (1986) 161 CLR 342 [HCA].

26.     Psychological Society of South Africa v Qwelane and Others   (CCT226/16) [2016] ZACC 48; 2017 (8) BCLR 1039 (CC) (14 December

 

27. Stonewell Searches (Private) Limited v Stone Holdings (Private) Limited and 2 Others SC 22/212016)

 

 

 

STATUES

1. 1. 1. 1. Criminal and Procedure Evidence Act,1981
         2. Lesotho Appeal Cases 2005-2006

 

ARTICLES

1.       Okpaluba M. C and Maloka T. C 2020. “The Fundamental Principles of Recusal of A Judge at Common Law: Recent Developments.” OBITER P 88-112

 

 

 

 

 

 

 

 

 

JUDGMENT ON RECUSAL APPLICATION

 

 

HLAELE J

 

[1] FACTS OF THE CASE

1.1 A synopsis of the facts that are relevant for the determination of the case can be articulated as thus:

1.2 The Applicant in the recusal application stands charged with murder. It is common cause that he was charged in the Subordinate Court in Maseru on the 5^th December 2020.[1] On the first week of February 2024 he was informed and he confirmed that he would secure a legal representative. The matter, after pre-trial processes was set down for hearing on the 2^nd September 2024. I should be quick to mention that the date was at the instance of his legal representative who had intimated that he will be available on this date, and not on the 5^th August as it was initially set down.

1.3 On the 2^nd September 2024 when the matter was intended to proceed Advocate Molapo attended to my chambers indicating that he was withdrawing from the matter due to non-payment of fees. There and then I quizzed him about the Superior Courts Practice Direction (Withdrawal by legal practitioners Appearing for litigants) No.4 of 2021. I then directed that we appear in open court where he could ventilate his application.

1.4 In open court the proceedings were recorded and “annexure L1” is a reflection of the proceedings. In his opening remarks Advocate Molapo indicated that he was appearing out of courtesy to the court. He contended that the defence team constituting of him and Adv Teele K.C was not “fully instructed”.[2] He continued to submit that as a result of this failure of being fully instructed, Accused’s Section 12 Rights envisaged in the Constitution will be affected. Asked to unpack what he meant by fully instructed, Advocate Molapo indicated that it meant “we have not been remunerated according to the fees that we required….”[3]He then proceeded to inform the court that they had not consulted the accused at all. As a result, he requested a postponement.

1.5 The court then sought to determine the grounds upon which Advocate Molapo was postponing the matter. Ultimately from the engagements that the court had with Advocate Molapo, the postponement was sought on the grounds of non-payment of fees. I will refer to these engagements later on in the judgement, save to note at this stage that the engagements led to the conclusion that the postponement was solely sought on the grounds of non-payment of fees.

1.6 The Crown opposed the postponement on the grounds that they were ready to proceed. They also disclosed the difficulty in securing witnesses in criminal trials. Further that it has financial implications on the purse of the crown. It was therefore their contention that, where witnesses have been secured, the trial should proceed. The crown also lamented the rights of the victims, stating that it is in the best interest of the accused that a case is heard to finality without interruptions.  They pointed at the time that had lapsed since the commission of the crime and the date of hearing. In a nutshell, the crown was of the view that the matter should proceed and the grounds raised for postponement did not tilt the scales in favor of a postponement. The court adjourned to allow me to consider the application and make a ruling.

1.7 After a short adjournment, I made a ruling that the matter should proceed, effectively dismissing the postponement application. More will be said about the ruling in the body of this application and the rationale for the ruling. It is important to mention that in the ruling, I had directed the Registrar to assist the accused by appointing for him legal representation pro deo. This was premised on the fact that Advocate Molapo had made it clear that the reason for postponement was non-payment of fees.

1.8 On the 3^rd September, the accused appeared unrepresented and explained to the court on his own accord that he seeks a two days postponement wherein he would have settled his fees with his legal representatives. The Crown did not oppose this postponement. The postponement was granted. On the 6^th September, the date to which the matter was postponed to, the Accused was represented by Advocate Teele K.C and Advocate Molapo. They appeared in chambers and informed the court that their instructions were to apply for the recusal of the judge. The recusal application, which was to be made formally was set down for hearing on the 17^th September 2024.

1.9 I now turn to speak to the application and the grounds thereof.

 

[2] APPLICANT’S CASE- RECUSAL APPLICATION

2.1 The grounds for recusal appear in the Notice of Motion.  The grounds are given clarity and meaning by the evidence and rational in the affidavits filed on behalf of the Applicant. They are amplified and given reasoning through the heads of argument filed of record and the submission of counsel during the hearing. I will rely on all these to state the case of the Applicant.

2.2 As submitted by the Applicant, the record of proceedings forms the crucial basis for the application for recusal and I agree with this. Thus, whatever that it is that the Accused alleges in the affidavit regarding what took place in court should emanate from the record.[4] Thus, reliance on what is alleged in the affidavits will be pitted against the record.

2.3 The grounds upon which the Applicant seeks the recusal of the judge appear in the affidavit and he states:

10.3 The unfairness that came through in the debate is that Her Ladyship did not take the trouble to find out how long the postponement sought was intended to be.  It was only to be sort postponement (sic) in the same week. However, as it later turned out in the subsequent hearing, the fact that it was a short postponement sought did not matter to the Learned Judge. She wanted the matter to proceed immediately.[5]

2.4 The specific words that allude to the Applicant’s discomfort are captured through the use of adjectives. He specifically states “the unfairness” and then goes to state what he deems to be unfair.

2.5 He then continues to state:

11.3 “It was very unfair for Her Ladyship to have arrived at an adverse finding against me even without asking me why I could not pay the fees in the first place and how long I needed to correct the situation.  Her Ladyship was too quick to make a finding against me and yet my life in the criminal trial depended upon her approaching every stage of my trial in a fair and just manner.  This raised a fear in my mind that my lawyer was not been given a fair opportunity to persuade Her Ladyship in the proceedings.”[6]

From this paragraph, what seems to have roused the apprehension of the accused is expressed by these words, “it was very unfair for Her ladyship….” This is coupled with the expression “…was too quick to make an adverse finding against me yet…” In essence he was of the view that I rushed his case notwithstanding the fact that he was facing a serious crime which has dire consequences to him. Hence, he felt, “this raised fear in my mind that my lawyer was not given a fair opportunity to persuade her Ladyship in these proceedings.”

2.6 His apprehension is also conveyed as follows:

13.2 What was unfair about the order of Her Ladyship was that she was expelling my legal representative in circumstances where I had the means to pay him, but only required some time to do so. She was prepared to get rid of my Lawyer even before she could ask me whether I am unable to pay fees.  This is not an even-handed approach to my rights to prepare for trial and to be represented by a Lawyer of my choice.  This can only be explained by the prejudice view that the Learned Judge took against me that I was imply (sic) engaged in delaying tactics, which I was not doing[7].

2.7 The key words that bring out his apprehension are “what is unfair about the order of Her Ladyship was that she was expelling my legal representative in the circumstances where I had the means but only required some time.”

2.8 At paragraph 13.4 he clearly uses the word “scared” to show that he was fearful. This fear is caused by the fact that I indicated that where an accused is represented, I only allow lawyers representing him to address me. His view that his lawyer had been “expelled” by the judge is reinforced in paragraph 15.1 where he states that “…my legal representative of choice had been expelled and prohibited to represent me.” The accused then states that once he was cross-examined, he asked for a postponement. It is also his contention that due to the nature of his engagement with the judge, the judge somewhat forced him to contradict himself. The result of this forced contradiction leads him to conclude that in the eventuality that I procced with the main trial, I will not protect him. As I indicated, it is his view that the judge was cross examining him. [8]

2.9 The accused continues to communicate his apprehension as follows:

15.9 “Her Ladyship then embarked on a trajectory of showing that I was gainfully employed and that I earned substantially more money than an ordinary Mosotho. She then charged that it would not be equitable for a man who is gainfully employed to inconvenience the wheels of justice. This was most unfair, and oppressive. My sin before her Ladyship was only that I had asked for a 48 hours postponement. I had distinct impression that her Ladyship was now out to embarrass me.  This being said in open court, and also streamed online for the public to view created an impression that I was using my political office to prevent justice from being done.  It would also definitely create an impression that I am using delaying tactics because I knew I was guilty”.[9]

2.10 The most telling words from the said paragraph are “This was most unfair and oppressive. My sin before her Ladyship was only that I had asked for a 48-hour postponement.” At paragraph 15.10 he continues to state “this was the most unfair impression of a Judge presiding over a capital crime to create.” The words “unnecessary and oppressive” continue to express his view of the engagement he had with me. Even where in his own words he agrees with the judge, he is quick to show that:

15.14 “Then the Learned Judge only asked the relevant question. It was whether I would be ready to proceed on Thursday. I said yes. She then said she was trying to hold the constitution and also to protect my interests in the entire proceedings that morning. I respectfully do not agree. She would not have been that unfair and oppressive toward me”.[10]

2.11 He then indicates that court days were imposed on him and his lawyers by the court.[11]

2.12 During addresses, Advocate Teele K.C emphasised that, the impression that was created in the mind of the accused during the two-day court appearances radiates the notion that he was wasting the court’s time. That the court was impatient with him. The court did not give him or rather his lawyer Advocate Molapo, (on the first day) an opportunity to explain himself. This he says, is demonstrated by the court’s failure to ask Advocate Molapo a simple question such as to which date he sought the postponement. This, advocate Teele K.C states, demonstrates the mind of a judge who is impartial or who a reasonable man can perceive to be impartial, not just to the accused but also to a reasonable observer.  He pressed the point that when the court was not ready to countenance the issue of non-payment as a ground for postponement, a reasonable man would read bias on the part of the judge.  This was evident, he submitted, both on the 2^nd of September and continued to the 3^rd September when the accused was not represented. Advocate Teele submitted that the court was of the view that the accused was playing delaying tactics. He thus submitted that, this observation is the observation of the accused and that of a reasonable, well-informed man /observer. He relied on the case of R v Saule[12] to make this case. The case states:

When a trial court fails to exercise its discretion judicially, (which is to say capriciously or in accordance with wrong principles or not on material grounds), then a court of appeal will interfere with the decision. In this regard prejudice to an accused, flowing from the refusal of a postponement, is sometimes virtually presumed where the effect of the refusal of an application is to deprive him of legal representation. Section 168 of the Criminal Procedure Act does not preclude a finding in an individual case that an accused person has not been afforded his right to a fair trial because, in consequence of a refusal to postpone, he was wrongly deprived of his right to be represented by a legal practitioner or the practitioner of his choice.

2.13 It was the view of Advocate Teele KC that the court wasted a lot of time inquiring about the status of the accused’s finances to a point where the court went beyond what a reasonable person could perceive as normal. He relied on the celebrated case of Sole v Cullinan and others[13] where Cullinan AJ outlined the test for bias. He submitted that the facts of this case fall squarely on the test as such the application should be upheld. Advocate Teele also relied on the case of DPP v Kamoli[14] to make the point that the court should not be quick to remove the legal representation of an accused person.

2.14 Advocate Teele submitted that the accused had a right to choose his own representation, and the court should ordinarily give him the opportunity to raise funds for the lawyer and prepare his case with his lawyer. Where he seeks a postponement on these grounds, if it is related to the issue of representation, the court should not be reluctant to grant a postponement. He relied on the case of Mafongosi v Regional Magistrate, Mdantsane & another 2008 (1) SACR 366 (Ck)[15]. In this case the accused’s conviction and sentence were set aside on the basis that the accused’s trial had been unfair, which resulted in a failure of justice. The magistrate decided and submitted in open court that the accused’s right to legal representation had expired, and that the accused would not be granted a further remand to secure legal representation. This declaration was made after many attorneys had previously either withdrawn or been unable to continue with the case. The accused agreed to take responsibility for her own representation and the magistrate accepted this. However, on automatic review, Ndzondo AJ (Petse J concurring) found this to be ‘grossly irregular’: ‘The fact that the accused had confirmed in open court that she would conduct her own defence could not assist the State as her confirmation had to be considered in the light of what the magistrate had decided earlier and repeated in open court, namely that there would be no further opportunity to obtain another legal representative’ (para [25]).

2.15 It was their contention that on the 3^{rd September}, when the accused was not represented, the court raised the issue of his employment and the fact that the court disclosed that he is a politician which was unnecessary under the circumstances. This raises a suspicion that the court is impartial. In fact, in the affidavit as earlier stated, the accused’s view is that the court’s intention was to embarrass him in full view of the televised proceedings. Counsel concluded his submissions by stating that a reasonable well-informed person would be of the view that the court would not be impartial on the grounds he has raised.

 

[3] RESPONDENT’S CASE

3.1 Advocate Motinyane submitted that in recusal applications, the onus lies with an applicant to demonstrate that the sitting judge is, in the eyes of a reasonable well- informed observer impartial. That such an applicant has to supply the court with cogent and convincing evidence and facts so as to convince the court that he has met the standard to prove impartiality. It was her considered view that the applicant had failed to meet the standard required.

3.2 Merging the facts of the case to the law Advocate Motinyane submitted that the matter commenced on the 5^th December 2020 when the deceased met his death and the Applicant / accused was given a charge. Two (2) years later an indictment was drawn. In 2023 the Applicant/ accused was summoned by the registrar for an interview wherein he indicated as far back then that he is represented by Advocate Molapo. The PTPS was held before the court and Advocate Molapo was indeed representing him. A week before the commencement of the trial both parties submitted opening statements and still advocate Molapo was on record. Even the opening statements indicate that Advocate Molapo was still on record. This demonstrated to the ordinary man or reasonable observer that Advocate Molapo had a journey with the case and that he was familiar with it. These facts, she submitted that there was still a lawyer client relationship as at the 28^th August, a few days before the seeking of the postpone the matter on the grounds of non-payment of fees. This to the crown seemed like somersault and seeking a postponement on suspicious grounds.

3.3 On the issue of non-payment of fees, the crown submitted that Advocate Molapo bore the duty to inform the court timeously and not on the day of hearing that he is seeking a postponement.

3.4 Quizzed whether the judge ought to have inquired specifically about the time sought for the postponement, Advocate Motinyane responded that it is the duty of a lawyer seeking a postponement to make full disclosure and not from the court to extract it. That is, since that information was not provided, the omission cannot be visited upon the court.

3.5 On the issue of the engagements that took place on the 2^nd September between the judge and Advocate Molapo, Advocate Motinyane stated that the engagements were robust and vigorous with the court asking pertinent questions. That there was nothing peculiar or particular about the engagements. In the answering affidavit the crown captured this submission penning it in this way:             

“Noted, Save to say that we do not understand the reason why the Accused watched the events unfold in “awe” as there was nothing that called for the accused to be in awe as everything that transpired in court was normal. Furthermore, it is misguided to say there was any heated exchange of words in court”.[16]

           

3.6 To push the point home, she relied on the case of DPP v Kamoli[17]  citing also the case of S v Basson[18] to make a point that judges are not silent empires in a case. She cited the case of S v Basson where the Constitutional Court of South Africa said;

“…… Judges are not silent umpires and may and should participate in the trial proceedings by asking questions, ensuring that litigants conduct themselves properly and making rulings on the admissibility of evidence and other matters as the trial progress.  Inevitably litigants will be from time to time aggrieved about both the content of rulings made by the Judge and manner in which the Judge may ask questions or intervene”.

 

“In line with the above alluded to decision of Court of Appeal in Kennedy Tlali Kamoli where the extract from Basson case was quoted with approval, the learned Judge when she was engaging in a question and answer with Adv Molapo and the accused she only wanted clarity as to how best the conundrum of not proceeding with the case could be remedied, much as the reasons that were raised by Adv. Molapo for postponement were not valid for the purpose of such.

 

I hasten to add that how each judge engages is a matter of the character of the judge.  

3.7 The Crown submitted that the overall tenor of the engagements of the two days were that the judge was ensuring the applicant’s fair hearing constitutional right by protecting the right that his matter is heard within a reasonable time. She relied on the fact that the case was called during the criminal roll session. During this time, criminal matters are heard, where possible, within a specified time and are disposed of expeditiously to ensure speedy resolution. For this reason, when a postponement is sought, the court has to thoroughly inquire about the reasons for the postponement. A lot of inquiring and probing has or may take place. 3.8 It is the view of the crown that this is what took place on the 2^nd September   when the judge was quizzing advocate Molapo. 

3.9 It was also the submission by advocate Motinyane that when the matter was called on the 3^rd September, the court engaged with the accused, and from the reason he stated a postponement was given. In fact, the case was postponed to the day proposed by the applicant himself.

3.10 She concluded her submissions by saying that the findings of the court on the postponement were fair and the court’s main concern was that the Applicant should be represented at all cost.

 

[4] THE LAW ON RECUSAL

4.1 The law on the recusal of a judge has developed and there is within our jurisdiction, settled law on the principles that guide the courts on matters relating to a judge’s recusal[19]. I agree with Advocate Teele KC that Sole v Cullinan and others[20] forms the bedrock of our jurisprudence in this regard. Also, that these principles are trite is evidenced by the fact that both parties in these proceedings cited and relied to some extent, on the same cases. What differed is their application of the principles to the facts of the case before me.

4.2 As has been indicated earlier, both parties are in agreement that the determining factor to establish the apprehension of bias, is the now so called the double- reasonable test. The test was best articulated a year after the locus classicus, namely President of the Republic of South Africa and Others v South African Rugby Football Union and Others [21] in the case of South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing)[22] where Cameron AJ stated:

[14] The Court in Sarfu further alluded to the apparently double requirement of reasonableness that the application of the test imports.  Not only must the person apprehending bias be a reasonable person, but the apprehension itself must in the circumstances be reasonable.  This two-fold aspect finds reflection also in S v Roberts, decided shortly after Sarfu, where the Supreme Court of Appeal required both that the apprehension be that of the reasonable person in the position of the litigant and that it be based on reasonable grounds.

[15] It is no doubt possible to compact the “double” aspect of reasonableness inasmuch as the reasonable person should not be supposed to entertain unreasonable or ill-informed apprehensions. But the two-fold emphasis does serve to underscore the weight of the burden resting on a person alleging judicial bias or its appearance.

                             (my emphasis)

4.3 An apprehension of bias can only arise if it is founded ‘on the correct facts’.  In other words, if the factual foundation is wanting then a fortiori the apprehension is misplaced and that will end the enquiry. In The President of the Republic of South Africa and others v the South African Rugby Football Union and others at para 48, the court said:

“The question is whether a reasonable, objective and informed person 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”

                                   (my Emphasis)

 

4.4 The case of Helow v Secretary of State for the Home Department and Another[23] brought to the fore the aspect of the fair-minded and informed observer.

 He was defined as thus:

        “1. The fair-minded and informed observer is a relative newcomer among the select group of personalities who inhabit our legal village and are available to be called upon when a problem arises that needs to be solved objectively. Like the reasonable man whose attributes have been explored so often in the context of the law of negligence, the fair-minded observer is a creature of fiction. Gender-neutral (as this is a case where the complainer and the person complained about are both women, I shall avoid using the word “he”), she has attributes which many of us might struggle to attain to.

2. The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not be confused with that of the person who has brought the complaint. The “real possibility” test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially. 

3. Then there is the attribute that the observer is “informed”. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.”

                        (own emphasis)

4.5 Hungwe J, In the case of Kamoli v Director of Public Prosecutions[24] profiled the double- reasonable test as follows:

A reading of the Canadian cases up to R v S (R.D) traces the journey travelled by the test for bias culminating in the current double reasonableness test espoused firstly by the Canadian Supreme Court, presently recognized by the English courts and adopted by both the Australian and South African courts. Applicant clearly misconceived the test for bias. He relied on an approach that excludes the double reasonableness approach. Put in another way, the test for bias is a double reasonableness test. It is so called because it involves a two-stage requirement of reasonableness. The first stage is that there must be an apprehension that is reasonably entertained. In the second stage, the reasonable apprehension must be held by a reasonable person, by which is meant a person who has no interest in the outcome of the matter in court other than the general interest by the public in the fair administration of justice. The fulfilment of this general interest is mainly a preoccupation with a fair administration of justice. In order to satisfy the requirement that an apprehension of bias must be reasonable in the circumstances, the reasonable, objective, informed and fair-minded person enters the fray.  [31] The test for reasonable apprehension therefore requires the court to consider whether a reasonable person with the knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that judges swear to uphold, would apprehend that there was bias. Put in another way, the test can be paraphrased as requiring that “a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge’s conduct gives rise to a reasonable apprehension of bias.” (per Basterache and Arbour JJ in Miglin v Miglin 2003 SCC 24; 2003 1 SCR @ p303.

                        (own emphasis)

4.6 What guides a judge who adjudicates upon their recusal was best summed up by Okpaluba[25] in his article as thus, and I agree with him:

“It is submitted that the conclusion that emerges from this study is that the recusal of a judge in adjudication is, in practical terms, the application of that aspect of the common-law principle of natural justice that prohibits a person from being a judge in his or her own cause. It is indeed clear from the reading of the cases that the courts, in adjudicating recusal applications, bear in mind the old adage that justice must not only be done but must manifestly and undoubtedly be seen to be done. These are the underlying reasons for the principle of judicial impartiality in constitutional parlance. From the foregoing discussion, it is clear that the determination whether a judge should recuse, or be requested to recuse, him- or herself from sitting and hearing a case is based on the plaintiff’s ability to rebut successfully the presumption of impartiality that operates in favour of the judge’s duty to sit in a case duly and lawfully assigned to him or her. The requirement of impartiality on the part of a judge or anyone under a duty to decide anything is not only a common-law principle but also a constitutional obligation. Accordingly, removing a judge from adjudication cannot be an easy task. It is therefore an important principle that if recusal of a judge must take place, the first hurdle to scale is rebuttal of the presumption of impartiality, which in turn requires concrete facts, not flimsy allegations or mere suspicion, but cogent evidence that suggests that something the judge has done or said gives rise to a reasonable apprehension of bias. The totality of the circumstances must be considered. The second hurdle is made up of two objective formulations rolled into one test: the requirement of a double-reasonableness test that asks how a reasonable person not necessarily involved in the case but whose perspective may differ from that of an affected litigant who is fully apprised of the facts would view the role of the judge in the particular case; and, viewed from the spectacle of this reasonable observer, whether the judge could be seen as one who has a vested interest in the outcome of the case. If so, would that reasonable observer be acting reasonably by viewing the proceeding in that court in that light? These are the questions to ask – whether the complainant is alleging actual bias on the part of the judge, or merely a reasonable apprehension of bias. In either case, the double-reasonableness test applies and the thresholds in both circumstances are high”.

                   (own emphasis)

4.7 Having established the law of recusal and the requirements thereof, I now turn to the proceedings before me on both the 2^nd and the 3^rd of September 2024 and I will deal with them sequentially but holistically because the proceedings are intertwined in relation to the test for recusal.

4.8 On the 2^nd September, Advocate Molapo attended to my chambers together with the crown representatives to inform me that the matter cannot proceed as he was not fully instructed. I then asked him what he meant but not fully instructed. His response was that he was not paid his fees. I asked him whether he was familiar with what the court directives said on withdrawals based on non-payment of fees. I interjected his response by saying that we should go to open court for this that he was desirous of bringing to the attention of the court. These being criminal proceedings, it is paramount that all proceedings should be in the presence of the accused, also the proceedings have to be recorded.

4.9 In open court Advocate Molapo proceeded with the application. Two statements inform the application before me. The first was the submission where Advocate Molapo said:

“We have not been remunerated according to the fees that we required and what has now happened my Lady is that when in the process of securing the remuneration that we required and therefore we should apply for a postponement in this matter to enable him to effectively instruct and then we can effectively consult with him and again we confirm My Lady that under the circumstances that we are not prepared already to defend him in this matter”.[26]

4.10 The second submission stated:

“Yes, my lady we are not ready we haven’t talked to him at all, we indicated then that he should inform the court whether he insists that he wants to be represented by us otherwise then my Lady that would mean that the whole option is left to him, it is for him to terminate our services. I think that is the position that the accused holds so we humbly request for a postponement, in the event it is not granted and I think he should plead for himself to be allowed to get a new representation. as the court pleases.”[27]

4.11 From these statements and those that followed thereon, it was clear to me that;

1. Advocate was seeking a postponement
2. The basis on the postponement was non-payment of fees.

4.15 In order to establish the gist and nature of the application that Advocate Molapo was making, and to remove all doubt, I put questions before him, the purpose being;

1. To establish the grounds for the postponement
2. The bona fides for the application.

4.16 This resulted in a lengthy and robust engagement where I put questions to Advocate Molapo. The assignment of the court was to ascertain the grounds for the postponement. To ensure that the application was not sought merely as a delay of the proceedings. From the engagement, it boiled down to the fact that Advocate Molapo’s contention or reason for postponement was the issue of fees. His ill-preparedness, I gathered from the totality of facts before me, was not a major factor, as he had filed, 4 days before the date of hearing, opening statements on behalf of the accused. He seemed to have somewhat abandoned this issue of ill-preparedness after our engagements he did not insist on it anymore.  This is common cause and appears ex facie the record.

4.16.1 It was Advocate Teele KC’s contention that this engagement between the judge(myself) and Advocate Molapo caused the applicant anxiety and he was apprehensive that the court views him and or his lawyer as litigants who were playing delay tactics. As a result of the attitude of the court the court failed in its duty to make a simple inquiry asking to which date Advocate Molapo requested a postponement. The failure to ask this question showed, according to Advocate Teele KC, that the court was not ready to hear the applicant and thus the court was biased. He captured the essence of his argument in his heads of argument as thus,

“The reasonably well-informed observer would be aware that finances always demand that an accused person should be given an opportunity to find fees to instruct his legal representative”[28].

4.17 It is prudent perhaps at this juncture to discuss the law relating to postponements so as to contextualize the application Advocate Molapo was making before court. The discussion of the law will elucidate the concerns I had, hence the questions put to Advocate Molapo. In turn, this will foster the engagement relating to the apprehensive observer, who according to the law, should be well- informed and reasonable. 

4.18 The starting point in any application for a postponement is that such an application is not there for the taking. The applicant must favour the court with good and cogent reasons for such an application. Any application for a postponement should and must be scrutinized by the court so as not to halt the wheels of justice. A postponement is an indulgence purely within the discretion of the Court.  This discretion must be exercised judicially.

4.19 The Chief Justice and the President of the Court of Appeal co-signed a Practice Note Published in the LAC (2006-2009) 325 wherein the directives guiding courts on issues of postponements were outlined. From the reading of the Practice Directive, the preamble clearly shows that the courts, as far back as 2005 were piqued by postponements. The preamble to the Directive reads:

 

[1] The delay in the operation of the law and consequent erosion of respect for the processes of the law have many causes. One of these is the abuse of the privilege to be able to apply for and obtain a postponement of legal proceedings.

 

[2] there is overwhelming evidence that postponements are being sought and granted without proper and persuasive reasons being furnished. It must be borne in mind that in a criminal trial, postponements often cause serious prejudice both to the Crown and the accused. Witnesses who may have travelled vast distances are inconvenienced, the delay means that their memories may no longer be clear by the time they are called upon to testify, and if a case is postponed on more than one occasion, witnesses lose interest and become unwilling to perform the public duty as good citizens would do.

 

4.20 Although in this instance he was breathing life to the provisions of the Speedy Trials Act 2002 in the case of Rex v Tumelo Moseme and others[29] Sakoane CJ had this to say about postponements:

Applications for postponements must be determined on the basis of negative impact on the continuation of the trial and the ensuing miscarriage of justice: the complexity of the case or existence of novel questions of fact or law which warrant adequate preparation and the denial of counsel or the prosecutor reasonable time necessary for effective preparation taking into account the exercise of due diligence.

                                (My emphasis)

4.21 Similarly, In Majali v S[30] the request and granting of a postponement was captured as follows:

A court is afforded greater inquisitorial powers in such an inquiry to ensure that all material factors are investigated and established. The granting of a postponement necessarily requires a court to establish the content and reliability of the circumstances predicating the application for a postponement and to evaluate these against constitutional imperatives and traditional basic bail objectives. The form such an inquiry and evaluation should take is not prescribed section 60(3), but a court reasonably informed of its constitutional imperatives should be aware of the essential form such a judicial inquiry should take.

4.22 In Erasmus, Superior Court Practice, Vol 2, pp D1-552A, the following is said about postponements :

“The legal principles applicable to an application for the grant of a postponement by the court are as follows:

(a)    The court has a discretion as to whether an application for a postponement should be granted or refused. Thus, the court has a discretion to refuse a postponement even when wasted costs are tendered or even when the parties have agreed to postpone the matter.

(b)    That discretion must be exercised in a judicial manner. It should not be exercised capriciously or upon any wrong principle, but for substantial reasons. If it appears that a court has not exercised its discretion judicially, or that it has been influenced by wrong principles or a misdirection on the facts, or that it has reached a decision which could not reasonably have been made by a court properly directing itself to all the relevant facts and principles, its decision granting or refusing a postponement may be set aside on appeal.

(c)    An Applicant for a postponement seeks an indulgence. The Applicant must show good and strong reasons, i.e the Applicant must furnish a full and satisfactory explanation of the circumstances that give rise to the application. A court should be slow to refuse a postponement where the true reason for a party’s non-preparedness has been fully explained, where his unreadiness to proceed is not due to delaying tactics, and where justice demands that he should have further time for the purpose of presenting his case.

(d)   An application for a postponement must be made timeously, as soon as the circumstances which might justify such an application become known to the Applicant. If, however, fundamental fairness and justice justify a postponement, the court may in an appropriate case allow such an application for postponement even if the application was not so timeously made.

(e)    An application for postponement must always be bona fide and not used simply as a tactical manoeuvre for the purpose of obtaining an advantage to which the applicant is not legitimately entitled.

(f)    Considerations of prejudice will ordinarily constitute the dominant component of the total structure in terms of which the discretion of the court will be exercised; the court has to consider whether any prejudice caused by a postponement can fairly be compensated by an appropriate order of costs or any other ancillary mechanism.

(g)    The balance of convenience or inconvenience to both parties should be considered: the court should weigh the prejudice which will be caused to the respondent in such an application if the postponement is granted against the prejudice which will be caused to the applicant if it is not

4.23 The general tone of the body of law is that courts should be slow to grant postponements, where doing so would result in the miscourage of justice. Unreasonable postponements of criminal matters erode the fairness required in criminal trials. An accused’s constitutional rights are violated by unnecessary postponements. A postponement that is sought literally at the doorstep of the trial Court on the day of its trial calls for scrutiny and thorough investigation, even if it is at the instance of the accused himself.

4.23.1 It is for this reason, and in the protection of right to a fair trial of the accused before me, that I engaged and quizzed advocate Molapo about the nature of the postponement. Since it centered solely on the issue of non-payment of fees, the questions that I put to him were intended to seek clarity on when and why the fees stood unpaid.[31] The fact that he is gainfully employed had to factor in where the issue of fees was the reason for postponement.

4.24 I also put the questions to Advocate Molapo so that he could afford the court reasons that would render the postponement in alignment with Lehohla J’s Directive on Postponements.[32] they allude to the fact that due to Postponements, courts are clogged and burdened resulting in backlog. It is in this context that the engagements between Advocate Molapo and I played themselves out.

4.25 It was Advocate Teele KC’s contention that the interactions that took place between Advocate Molapo and I smacked of a denial of fair trial in that the court seemed more preoccupied with interrogating the issues in relation to non-payment of fees instead of asking about the date to which Advocate Molapo requested the postponement to. Three issues emanate from this submission. The first is, what constitutes a fair trial? The second is, was the denial of the postponement a violation of this right? The third and most relevant in the case is, is a court’s refusal to grant a postponement indicative of a biased court?

4.26 The reading of the case of Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General) [33]illustrates proceedings which can lead a reasonable observer to be apprehensive that a presiding judge is biased. I find it prudent to cite a summary of the facts of this case due to some similarities between the it the one at hand. The facts reveal the following:

4.27 The judge’s conduct during trial reveals that several incidents occurred which, when viewed in the circumstances of the entire trial, lead inexorably to this conclusion. First is the trial judge’s conduct when counsel for the Yukon attempted to cross-examine a witness based on confidential information contained in files belonging to students. After hearing some argument on the confidentiality issue, the trial judge told counsel he would entertain additional arguments on the matter the following day. However, he started the next day’s proceedings with a ruling that was unfavorable to the Yukon and without giving the parties an opportunity to present further argument. While this by itself is unwise, the trial judge’s refusal to hear the Yukon’s argument after his ruling, and his reaction to counsel, are more disturbing. He both characterized the Yukon’s behaviour as reprehensible and accused the Yukon’s counsel of playing games. An overall assessment of the entire record reveals the trial judge’s conduct as troubling and problematic. Further improper treatment meted out on the Yukon’s by the trial judge was evident when they requested permission to submit affidavit evidence from a witness who had suffered a stroke. In response, the trial judge accused counsel of the Yukon of trying to delay the trial, criticised him for waiting half-way through the trial to make the application, suggested that the incident amounted to bad   warned counsel for the Yukon that he could be ordered to pay costs personally, if he brought the application. There was no basis for the accusations and criticism leveled at counsel and viewed in the context of the rest of the trial, this incident provides further support for a finding of reasonable apprehension of bias. A final illustration of the trial judge’s conduct is his refusal to allow the Yukon to file a reply on costs, which is even more difficult to comprehend. After the release of his reasons on the merits, the trial judge required each party to file their costs submissions on the same day. To the Yukon’s surprise, the Board sought not only solicitor- client costs, but also punitive damages as well as solicitor-client costs retrospective to 2002. The trial judge’s refusal to allow the Yukon to file a reply factum is questionable, particularly in light of the fact that the Yukon could not have known the quantum of costs sought by the Board at the time it filed its factum. The Supreme Court held that all these incidents taken together and viewed in their context would lead a reasonable and informed person to see the trial judge’s conduct as giving rise to a reasonable apprehension of bias.

4.28 I compare this to the facts that occurred in the case of Essa v Judicial Commission of Inquiry into State Capture and Another[34] where the court summarised the events that took place in court as thus:

[11] During the debate, and before Mr Seleka stated that the court appears to be unwilling, or perhaps even unable to see the inconsistencies between the affidavits filed on behalf of Mr Essa. At that stage, Mr Seleka briefly spoke to his junior and the proceeded to ask for my recusal.

[12] The Court adjourned to consider how this application should be dealt with procedurally. On my return to Court, I asked Mr Seleka to proceed with his application for my recusal.  He stated that through my engagement during argument, I created the perception of bias against his client, he argued that I gave evidence from the bench in assistance of the case for postponement on behalf of Mr Essa. This relates to my statement that arbitrations are not set down for one day and may proceed for longer. This statement indicates, as it is argued, that the Court has made a pre-determination on the postponement application. This impression, so the argument went, is intricately bound to the unavailability of counsel issue.

[13] It was argued that the court was unable, perhaps even unwilling to see the inconsistencies in the unavailability of counsel issue, indicating pre-judgment. Further, it was argued that my statement that “I wondered” how the matter found its way to my opposed roll created the impression, or implied, suspicion of underhandedness in the setting of the matter down. It was also argued that the Court’s demeanour or tone during engagement with Mr Seleka were indicators of pre-judgement.

[14] Finally, it was argued that as I showed a willingness to hear the postponement application, and I acted against the authority of a case referred to as Imperial Logistics Advance, an SCA decision. Mr Seleka did not elaborate on the facts or findings of this case.

4.29 As a result, after analysis on the law and what had occurred in court, the judge concluded:

[24] In my view, what I said, would not have been conceived by a reasonable person as a pre-determination of the matter, but rather, active participation by a presiding Judge with counsel. I have expressed views but have not pre-determined the application. My prima facie views expressed are still subject to persuasion and could not have created a perception of bias.

4.30 With this background in mind, I turn to the present case. I however find it convenient to also deliberate on the law relating to what constitutes a fair trial. This is in the light of the argument proffered by Advocate Teele K.C that the events that took place on the 2nd and 3rd trampled on the applicant’s right to a fair trial.

 

[5] FAIR TRIAL

5.1 In  Mofolo v Director of Public Prosecution[35] Hungwe JA aptly captured what fair trial constitutes. He referred to the case of National Director of Public Prosecutions v King 2010 (2) SARC 146 where the court said:

“It is well to remind oneself at the outset of a number of basic principles in approaching the matter. Constitutions call for a generous interpretation in order to give full effect to the fundamental rights and freedoms that they create. The right to a fair trial is, by virtue of the introductory words to section 35 (3) of the Bill of Rights, broader than those right specifically conferred by the fair trial guarantee therein and embraces a concept of substantive fairness that is not to be equated with what might have passed muster in the past.2 This does not mean that all existing principles of law have to be jettisoned nor does it mean that one can attach to the concept of a ‘fair trial’ any meaning whatever one wishes it to mean.3 The question remains whether the right asserted is a right that is reasonably required for a fair trial. A generous approach is called for. This is a question for the trial judge and there is in general not an a priori answer to the question whether a trial will be fair or not. Potential prejudice may be rectified during the course of the trial and the court may make preliminary rulings depending on how the case unfolds and may revoke or amend them. Irregularities do not lead necessarily to a failure of justice. ……. Fairness is not a one-way street conferring an unlimited right on an accused to demand the most favourable treatment but also requires fairness to the public as represented by the state. This does not mean that the accused’s right should be subordinated to the public’s interest in the protection and suppression of crime; 1 S v Zuma 1995 (2) SA 642 (CC) @ para 14 2 S v Zuma (supa) @ para 16 3 Key v Attorney-General, Cape Provincial Division & Another 1996(4) SA 187 (CC) @ para 13 19 however, the purpose of a fair trial provision is not to make it impractical to conduct a prosecution. The fair trial right does not mean a predilection for technical niceties and ingenious legal stratagems, or to encourage preliminary litigation -a pervasive feature of white-collar crimes cases in this country. To the contrary: courts should, within the confines of fairness, actively discourage preliminary litigation. Courts should further be aware that persons facing serious charges – and especially minimum sentences have little inclination to co-operation in a process that may lead to their conviction and any new procedure can offer opportunities capable of exploitation to obstruct and delay. One can add the tendency of such accused, instead of confronting the charge, of attacking the prosecution.”

5.2 I understand the dictum to mean that fair trial is a balancing act. Whilst the paramount and primary recipient of a fair trial is an accused person, this does not translate to a disregard of other players in the trial. Whilst these competing rights are subservient to those of the accused, the court should not give the accused carte-blanche to a point where all other rights are sacrificed unfairly in favour of his. The dictum also clearly stipulates that preliminary unfavorable findings neither constitute unfair trial nor or indicative of bias. I subscribe to the dictates of the dictum.

5.3 The suggestion by Advocate Teele KC that the refusal to grant a postponement is a trampling of his right to a fair trial, also that it points to bias should be juxtaposed against these rulings and also to the following set of facts. That a fair trial entails that criminal matters should proceed without interruption, unless concrete reasons exist. That postponements are not there for the taking without merit. That courts are not passive observers where applications for postponements are made. That courts have a right to inquire and interrogate without walking on egg shells but being fair and assertive, the reasons the postponement is sought. In Psychological Society of South Africa v Qwelane and Others[36], the South African Constitutional Court reaffirming its observations on postponements, stated that:

Postponements are not merely for the taking. They have to be properly motivated and substantiated. And when considering an application for a postponement a court has to exercise its discretion whether to grant the application. It is a discretion in the true or narrow sense – meaning that, so long as it is judicially exercised, another court cannot substitute its decision simply  See: Transport & Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others because it disagrees. The decision to postpone is primarily one for the first instance court to make. [31] In exercising its discretion, a court will consider whether the application has been timeously made, whether the explanation for the postponement is full and satisfactory, whether there is prejudice to any of the parties and whether the application is opposed. All these factors will be weighed to determine whether it is in the interests of justice to grant the postponement. And, importantly, this Court has added to the mix. It has said that what is in the interests of justice is determined not only by what is in the interests of the immediate parties, but also by what is in the broader public interest.

 

It is in this context that the events of day one, being the 2^nd September occurred.

5.4 The ruling that the court made, which Advocate Teele KC submits was unfair, does not point towards bias. In law, an unfavorable ruling does not constitute bias. From the set of facts presented before me, I made the ruling based on the fact that the only issue that the postponement was sought was the issue of fees or rather non-payment thereof. It was on this that the court sought the intervention of the registrar to assist the accused with a government sponsored pro deo legal representative.

 5.5 The ruling is also based on the notion that expeditious conclusion of criminal proceedings is central to a fair trial. In Sanderson v Attorney-General, Eastern Cape[37], the Constitutional Court (CC) set out the principles establishing when delay may warrant permanent stay of prosecution.

5.6 In the said case, Kriegler J stressed that the right to a trial within a reasonable time is designed to protect the accused (who bears the burden of repeated postponements and adjournments) from delayed-prejudice. That need not relate only to the trial itself, it extends to the fact that, while the charges are undetermined, the presumption of innocence may be threadbare protection against the fact that the accused’s name and reputation are sullied by the very fact of the charges. The same argument was espoused in the case of Rex v Tumelo Moseme referred to above. The right to a trial within a reasonable time, seeks to mitigate ‘the tension between the presumption of innocence and the publicity of trial’ by acknowledging that the accused – although presumed innocent – is nevertheless ‘punished’ – and, when remanded in prison, that punishment is severe.[38]

5.8 What is ‘a reasonable time’? This is a value judgment by the court. It considers the kind of prejudice suffered, the nature and complexity of the case and the lack of state resources that might have hampered the investigation or prosecution.[39]

5.9 This is the foundation and the rational upon which the court was driven to have the matter proceed, hence its ruling. A fair minded, reasonable, well-informed man would readily observe this. This was the basis of opposition by the Respondent (Crown). It was the submission of the crown that the accused had interacted with the case from the date he was remanded to the date the matter was set down. It was Advocate Motanyane’s contention therefore that he had had adequate time to prepare even financially. The postponement to her would constitute a violation of his right to fair trial. Also inconvenience the Crown.

5.10 What occurred on the second day of the hearing, being the 3^rd September, totally eradicates the argument postulated by advocate Teele KC and deposed to by the accused, that the court was ready to force the proceedings despite the accused’s lack of preparedness. The record of proceedings reveals that the accused himself requested a two-day postponement on his own accord and this was granted.

5.11 It is imperative that I shed meaning and context to the interaction between the Applicant (accused) and I on day two. After the accused requested a postponement, I asked him questions relating to his affordability of the legal fees. This was in the context of Section 12 of the Constitution, hence my direct reference to it during this discussion. It was important that the court engages the Applicant on the provisions relating to legal representation, the choice of legal representation and availability of counsel on the date of trial in line of the provisions of the section. The warning that the new counsel so appointed should come ready to proceed was premised on the following remarks by Hungwe AJ in Mofolo, he said 

A court may give directions regarding representation in an appropriate case. In the present matter, I am aware that the accused remain committed to their counsel of choice Mr Mda as their preferred legal practitioner for this matter. However, where the preferred or chosen counsel remains unable to so represent the accused, the right to representation cannot be a bar to other rights such as speedy trial, the administration of justice as well as the interests of justice. The choice of a legal practitioner who cannot observe basic ethical practice of making appropriate arrangements cannot be subordinated to the other rights such as trial within a reasonable time.

 

5.13 The interactions or rather the questions were to drive the Applicant towards the direction where the court would advise him that whomsoever he wanted to appoint as his legal representative, should be mindful that the right to have a trial to proceed within a reasonable time was of paramount concern to the court. The court had this in mind and was communicating the right of fair trial vis-a-vis legal representation as demonstrated In Paweni & Another v Acting Attorney – General[40] ,  where the Supreme Court held that:

“The inalienable right to a legal representative of his own choice afforded to an accused by Section 18 (3) (d) of the Constitution of Zimbabwe does not mean that if for one reason or another it is inconvenient for the person chosen to conduct the case on the date set for hearing, the court has no option but to order that the proceedings be held in abeyance pending his availability. What is protected is the right of an accused to resist a legal practitioner being foisted upon him even where such service will be rendered without charge. He is entitled to choose whom he wished to represent him, but if his prime choice is unavailable, then he is obliged to look further afield and engage someone else. In other words, the right of choice is always subject to the practitioner’s availability on trial date.”

5.14 Hungwe J in the Mofolo case cited these authorities which I am in agreement with. In D’Anos v Heylon Court (Pty) Ltd[41],  a Court would be highly reluctant to grant a postponement of an appeal when the sole reason is that an Applicant and/or the Aapplicant’s instructing legal practitioners prefer a particular legal representative, and that particular counsel is not available. In Stonewell Searches (Private) Limited v Stone Holdings (Private) Limited and 2 Others[42] the court said: Over and above that, the mere fact that a party’s counsel of choice is unavailable is not a good ground upon which to grant a postponement.

5.15 The court through its questions sought to engage and also bring it to his attention (the unrepresented Applicant) these provisions and their implications. The Applicant through his responses demonstrated that he is aware of the expectations that his legal representative had to meet. Neither was he adverse to the questioning. Either through his spoken language nor his demeanor or even body language. He readily confirmed being aware of the provisions of Section 12. Although I am aware that his knowledge cannot match that of a person trained as a lawyer, there is a level of expectation that a parliamentarian would at least be knowledgeable of the constitution of the country. It is the one document he swore to uphold in his office. In fact, he demonstrated knowledge thereof. Nothing of the interactions seemed to faze him. this talks to the Crown’s submission in the affidavit that “there was nothing that called for the accused to be in awe as everything that transpired in the court was normal. Furthermore, it is misguided to say there was any heated exchange of words in court”.

5.16 Having said this, I now turn to a reasonable well-informed observer once again to now contextualize him and see him through the lens of the proceedings at hand.  In a trial where a postponement is sought on the grounds of finances, I ask, would a reasonable well-informed observer find anything untoward in a court that questions a legal practitioner about the financial relationship between him and his client where this was the basis of him seeking a postponement? Further, would it be eye-brow raising for a court to refer to the employment status of an Applicant in the context of him being able to afford a lawyer of his choice, in the context where a postponement was based on this fact? Would a reasonable well-informed person have cause to be apprehensive where the court engages his legal representative about a postponement where the questions talk to the reasonableness of the application? Would a well-informed person not read the court’s duty to have the matter disposed of for the benefit of the accused?

5.17 In order to answer these questions, I find it appropriate to revisit the definition of a well-informed reasonable person. I rely on the below mentioned outlined cases:

Lord Bingham of Cornhill, in R v Abdroikor[43], noted that:

“The characteristics of the fair minded and informed observer are now well-understood: he must adopt a balanced approach and will be taken to be a reasonable member of the public, neither unduly complacent or naïve nor unduly cynical or suspicious”.

5.18 In Belize Bank Ltd v AG of Belize[44] the Privy Council endorsed the court a quo’s assertion that the fair-minded objective observer is not overly suspicious or finicky; he should be given some credit for his intelligence not to be swayed by any or every fancy of bias.

5.19 In Prince Jefri Bolkiah v State of Brunei Darussalam[45], Lord Bingham added:

“The requirement that the observer be informed means that he does not come to the matter as a stranger or complete outsider; he must be taken to have a reasonable working grasp of how things are usually done.”

5.20 I find that the Applicant is overly suspicious, lacks objectivity, misconstrues obvious facts, and is finicky. This is displayed in his deliberate misinterpretation of the court’s inquiry into his employment. His contention that

I had distinct impression that Her Ladyship was now out to embarrass me. This being said in an open court, and also streamed online for public to view, created an impression that I am using my political office to prevent justice from being done. It would also definitely create an impression that I am using delaying tactics because I knew I was guilty.

5.20.1 I start where I wanted to confirm that indeed it was common course to establish that he was a Parliamentarian. I turned to the Crown for confirmation that indeed this was common cause and that it was not disputed by them. The main and only context within which the deliberations were taking place were centered solely around payment of legal fees. In an overly suspicious manner, devoid of a fair, reasonable mind, he attributes this to the court creating an impression that he was using his political office. That the court was embarrassing him in the public spectrum. The cumulative effect of this in his view is that the court was being biased.

5.20.2 He continues in this same fashion by attributing a question relating to parliamentary procedure of question time where parliamentarians often inquire about lengthy trials which are not disposed of. His interpretation of this hypothetical parliamentary question time (which he agreed oft-times takes place) is construed by him as follows;

This was the most unfair impression for a judge presiding over a capital crime to create. Lesotho is a politically polarized society. I belong to a political party which is not popular to everybody. Creating an impression that I use political office to prevent justice from being done is the worst unfairness that could be meted to me by Her Ladyship. I again repeat, I had only asked for postponement for 48 hours.

5.22 Two statements were uttered in relation to him being a parliamentarian. The first being that he is gainfully employed. The second being he knows that parliament can be concerned about delays in prosecutions of trails. A fair minded well informed reasonable person would know that this was the gist of what took place. I reiterate that the applicant is overly sensitive, overly suspicions and finicky.   

 

[6] CONCLUSION

6.1 In the case of Re JRL: Ex parte CJL[46] the court said:

“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearances of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

 

 

 

 

I therefore come to the following conclusion:

I conclude that a reasonable well-informed person would not entertain a reasonable apprehension of bias flowing from the proceedings of the 2^nd and 3^rd September in this case.

I made the following order.

 

[7] ORDER

1.The application for recusal is dismissed

2.The court will proceed with the case and I will preside over the proceedings on the dates to be set down immediately after the delivery of the recusal ruling.

 

 

------------------------------

M. G. HLAELE

JUDGE

 

 

For Crown:  Adv. Motinyane, Adv. Joala and Adv. Phooko 

Defence: Adv. Teele K.C and Adv Molapo