The Director of Public Prosecutions (Adv. Hlalefang Motinyane) V The Prime Minister & 4 Others (CC/0008/2024) [2024] LSHC 246 (4 December 2024)

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IN THE HIGH COURT OF LESOTHO
(Sitting in its constitutional jurisdiction)
HELD AT MASERU CC/0008/2024
In the matter between:
THE DIRECTOR OF PUBLIC APPLICANT
PROSECUTIONS
(ADV. HLALEFANG MOTINYANE)
and
THE PRIME MINISTER 1st RESPONDENT
THE MINISTER OF LAW AND JUSTICE 2nd RESPONDENT
ATTORNEY GENERAL 3rd RESPONDENT
HIS MAJESTY THE KING 4th RESPONDENT
THE CHIEF JUSTICE 5th RESPONDENT
Neutral citation : The Director of Public Prosecutions (Adv., Hlalefang Motinyane) v The Prime Minister and 4 Others [2024] LSHC 246 Const. (04 December 2024)
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CORAM : KHABO J.,
KOPO J.,
MOKOKO J.,
HEARD : 22 OCTOBER 2024
DELIVERED : 04 DECEMBER 2024
SUMMARY
Constitutional Law - Practice and procedure - Counsel from both sides taking preliminary points - firstly by Applicant’s Counsel challenging the propriety of the appointment by the Chief Justice or the Judge delegated by him of three Judges to preside over this matter – on the basis that the practice is not provided for under the newly promulgated High Court Civil Litigation Rules, 2024 (the Rules); Secondly, that in terms of Section 12 of the High Court Act, 1978 The Chief Justice has no power to distribute cases to Judges, but to merely regulate such process.
1st to 4th Respondents’ Counsel, on the other hand, raising objections relating to Applicant’s purported failure to comply with Rule 175 (1) contending that the review application is not properly before court for the following reasons: (i) for having been filed out of the thirty (30) days prescribed by the Rule; (ii) for not being accompanied by a record
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of proceedings as required by the said Rule; and (iii) that the Rule only anticipates reviews of decisions of a Subordinate Court, court martial, tribunal or any statutory body of which the 1st to 4th Respondents are not - Court finds Rule 175 (1) to be confined only to reviews of actions of entities mentioned thereunder.
ANNOTATIONS
Statutes and subsidiary legislation
Constitution of Lesotho, 1993
Constitutional Litigation Rules, 2000
High Court (Amendment) Act, 1984
High Court Act, 1978
High Court Civil Litigation Rules, 2024
Cases cited
Lesotho
Abdul Rauf Abubaker v Ellerines Furnishers (Lesotho) Pty Ltd and Another CIV/APN/288/89
All Basotho Convention and 2 Others v Speaker of the National Assembly and Another Constitutional Case No. 406 of 2016
All Basotho Convention and 5 Others v Habofanoe Lehana and 2 Others consolidated with All Basotho Convention and 5 Others v Motseki Lefera and 2 Others C of A (CIV) No. 32 and 33/ 2019
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Andrew v Lesotho Telecommunications Corporation (C of A (CIV) 4 of 1993) [1994] LSCA 118 (22 July 1994)
Chief Justice and 5 Others v Law Society C of A (CIV) No. 59/2011
Lesotho Police Staff Association (LEPOSA) and 2 Others v The Commissioner of Police and 2 Others Constitutional Case No. 14/2020
Mputsoe v P.S Ministry of Development & Planning (CIV/APN/ 338 of 17) [2018] LSHC 22 (29 August 2018)
Tau Makhalemele v Board of Enquiry of the National Security Services and 4 Others C of A (CIV) 38/2022
Other jurisdictions
Eswatini
Chief Justice of the Kingdom of Eswatini NO JSC v the Clerk of Parliament Constitutional Case No. 906 0f 2021
South Africa
Trans - African Insurance Co., Ltd v Maluleka 1956 (2) SA 273 (A)
Books, Articles
Concise Oxford English Dictionary, Oxford, 10th ed., 2001
G.E. Devenish - Interpretation of Statutes, 1996, Juta & Company 1996
R. Cross, J. Bell and G. Engle in Cross - Statutory Interpretation, 2nd ed., Butterworths, London, 1987
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JUDGMENT
KHABO J.,
Introduction
[1] The Applicant is the Director of Public Prosecutions (DPP). She has launched a review application in which she seeks to have 1st Respondent’s proposed move to advise His Majesty, the King, pursuant to Section 141 (6) of the Constitution of Lesotho, 1993 to set up a tribunal to investigate allegations levelled against her set aside and declared unconstitutional. At the outset of proceedings, both the Applicant’s as well as 1st to 4th Respondents’ Counsel raised objections to the proceedings.
[2] Firstly, Applicant’s Counsel challenged the appointment by the Chief Justice of a panel of three Judges to hear and determine this matter on the basis that the exercise is not sanctioned by the newly promulgated High Court Civil
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Litigation Rules, 20241 (the Rules). Secondly, Counsel contended that it is the Chief Justice through Justice Mahase who allocated this matter to the said Judges in violation of Section 12 of the High Court Act, 19782 which he says does not give him power to distribute cases to Judges, but to merely regulate such process.
[3] The 1st to 4th Respondents’ Counsel, on the other hand, raised a three pronged objection to Applicant’s review application, based on Rule 175 (1), namely, that it was filed out of the thirty (30) days prescribed by the said Rule; that it was not accompanied by a record of proceedings as envisaged by the Rule and further that the Applicant has wrongfully sued the 1st to 4th Respondents because they are not covered by the Rule in that they do not fall under the categories stipulated thereunder.
1 Legal Notice No. 65 of 2024
2 Act 5 of 1978
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The factual matrix
[4] This dispute appears to have been instigated by Applicant’s receipt of a “show cause” letter dated 14th May 20243 in which she was required by the Prime Minister, 1st Respondent herein, to make representations on why a tribunal may not be set up to investigate allegations of unbecoming conduct and/or incapacity to perform levelled against her. The Applicant reacted thereto by annexure ‘HM 4’ to her founding papers in which she sought further particulars on the said allegations.
[5] Amidst this, she decided to launch a constitutional attack on Respondent’s proposed move and is seeking several declarators couched in the following terms:
(a)
that the instruction to her to withdraw the criminal charges against the former Deputy Prime Minister, Hon. Mothejoa Metsing MP., and the Minister of Health, Hon. Selibe
3 Annexure ‘HM 3’ to the Notice of Motion
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Mochoboroane MP
., in CRI/0001/2018 is unconstitutional, and null and void;
(b)
that the creation of the position of Special Advisor to the Attorney General with the purpose of redeploying her to that office is unconstitutional, and null and void;
(c)
that the decision of the 1st Respondent to advise and/or represent to His Majesty, the King, to appoint an Impeachment Tribunal is unconstitutional, and null and void;
(d)
that the decision of the 1st Respondent to request His Majesty, the King, to engage the Public Service Commission to advise him to suspend the Applicant pending the finalisation of the proceedings of the Impeachment Tribunal is unconstitutional, and null and void;
(e)
Setting aside the 1st Respondent’s letter to the Applicant, dated 14th May 2024 as unlawful and invalid;
(f)
Setting aside the 1st Respondent’s letter to the Applicant, dated 17th June 2024 as unlawful and invalid;
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(g)
Interdicting and restraining the Respondents from taking any further process, steps and/or decision regarding the impeachment process until the Honourable Court has finally determined the matter;
(h)
Costs of the application against the Respondents, including the costs consequent upon the employment of two counsel; and
(i)
Further and/or alternative relief this Honourable Court deems fit.
The application is opposed, and as afore - stated both Counsel raised points in limine to the proceedings. The court shall determine these preliminary objections seriatim.
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The preliminary objections
The composition of a panel of three Judges to hear and determine this matter
[6] It is common cause that Justice Mahase, delegated by the Chief Justice, appointed a panel of three Judges to hear and determine this matter. Applicant’s Counsel contends that this composition of a panel of three Judges is irregular because it is not provided for in the new Rules.
[7] As things stand, the distribution of the work of Judges, which primarily comprises the hearing and determination of cases brought before them, is regulated by Section 12 of the High Court Act, 1978 which provides that:
The Chief Justice shall regulate the distribution of business in the court, and all actions and proceedings before the Court shall be heard and determined by a single Judge, unless the Chief Justice otherwise directs (emphasis added).
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[8] The import of this Section is that a case brought before the High Court shall be heard by a single Judge, but it does not stop there, and continues to provide a rider to the effect that ‘unless the Chief Justice otherwise directs.’
[9] What does this mean? It is a basic principle of interpretation of statutes that words be given their ordinary, grammatical or natural meaning (the literal or ordinary meaning rule).4 This principle has been applied in several judgments of this court including the apex court such as Andrew v Lesotho Telecommunications Corporation5 where the court stated that “the court is bound to give words in a statute their ordinary meaning.”
[10] Put succinctly by R. Cross, J. Bell and G. Engle in Cross - Statutory Interpretation6 “words should generally be given the meaning which the normal speaker of the English language
4 G.E. Devenish - Interpretation of Statutes, Juta & Company 1996 at p. 26
5 (C of A (CIV) 4 of 1993) [1994] LSCA 118 (22 July 1994) at p. 5
6 2nd ed., Butterworths, London, 1987 at p.1
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would understand.” Speaking English now, Section 12 of the High Court Act, 1978 simply provides that a matter brought before the High Court shall be heard and determined by a single Judge, unless the Chief Justice decides to appoint more than a single Judge to a matter. The word ‘unless’ used in the Section, means ‘except’7 which is a word used before a statement that forms an exception to the one just made. It, therefore, follows that the Chief Justice is empowered to make an exception to the basic rule in the Section of the designation of a single Judge to a matter and to assign more than one.
[11] In the language used in the Section, the Chief Justice has ‘otherwise directed’ in casu and designated a panel of three Judges, a practice that is consistent with the Section. It is our considered view that the collective wisdom, the different professional backgrounds and the experiences of the three Judges will lead to a better dispensation of justice in the matter which is of public interest.
7 Concise Oxford English Dictionary, Oxford, 10th ed., 2001
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[12] The position of DPP is very critical in the administration of criminal justice and, therefore, of national significance. The court in inspired in this view by, inter alia, the remark by our brother Makara J., in All Basotho Convention and 2 Others v Speaker of the National Assembly and Another8 that the significance of the case warranted a hearing before a panel of three Judges.
[13] Faced with a similar issue on the composition of the court in determining a constitutional question in Chief Justice of the Kingdom of Eswatini NO JSC v the Clerk of Parliament,9 a matter that concerned an application for the interdiction of a Parliament Select Committee constituted by the House of Assembly to investigate reported gross maladministration, abuse of power and embezzlement of estate monies in the office of the Master of the High Court, the court held that the national importance of the matter, the public interest therein, the various constitutional provisions to be considered or interpreted warranted that the matter be heard and decided
8 Constitutional Case No. 406 of 2016 at para. 7 p. 6
9 Constitutional Case No. 906 0f 2021
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by a full bench of the court. It emerged that there was no law in Eswatini then regulating the composition of the court in a constitutional matter, but a practice had developed to have the full bench sit in it.
[14] The court is herein confronted with a constitutional case, namely, a constitutional attack on 1st Respondent’s conduct. Lesotho does not have a Constitutional Court. Any matter involving a constitutional question is heard and determined by the High Court exercising a constitutional jurisdiction. There is no provision in either the new Rules nor the repealed Constitutional Litigation Rules, 200010 on the number of Judges who may determine a constitutional case or any case for that matter. Hence, Applicant’s Counsel’s assertion that the repeal of these Rules spelt the cessation of a three Judge bench is inappropriate.
[15] Even if one were to argue without conceding that the new Rules do not provide for a bench of three Judges, Counsel is
10 Legal Notice No. 194 of 2000
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relying on Rules as opposed to the Act. Rules and Regulations flow from statutes. They are secondary or subsidiary to the parent Act. Theirs is just to make the latter work effectively.
[16] A trend or practice has developed over the years that where the High Court exercises its constitutional jurisdiction, the matter is heard by a bench comprising three Judges. The appointment of three Judges by the Chief Justice in the current matter is, therefore, an exercise of a discretion by virtue of powers vested in him by Section 12 of the High Court Act, 1978. He has powers to appoint any number of Judges he deems appropriate in the circumstances of each case. This is a justifiable practice in that the gravity or complexity of cases filed before court differs.
[17] It follows from the wording of Section 12 above, that a matter may be heard by a single Judge or more, not necessarily three. To this end, the apex court stated in Tau Makhalemele v
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Board of Enquiry of the National Security Services and 4 Others11 that:
Where the High Court exercises its constitutional jurisdiction … the matter is heard, if possible, by a bench comprising three Judges (emphasis added).
[18] The expression ‘if possible’ connotes something that “that may be so, but which is not certain or probable,”12 that may or may not happen. In the context of this case, it says a single or a panel of more Judges may be appointed. The case confirms that a panel of three is not mandatory or cast in stone in every case. It is worth noting that the Section applies to all matters that are heard and determined by the High Court, not necessarily constitutional matters. The Chief Justice may appoint more than one Judge even in an ordinary High Court matter depending on its complexity or if it is of national interest.
11 C of A (CIV) 38/2022 at para.16 p. 6
12 Concise Oxford English Dictionary note 7 above
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[19] It is not in every Constitutional case that a panel of three Judges is appointed. For instance, in Lesotho Police Staff Association (LEPOSA) and 2 Others v The Commissioner of Police and 2 Others13 the court was constituted by two Judges, Sakoane J., (as he then was) and Banyane J. Granted, a panel of three Judges is often opted for, perhaps to maintain consistency.
[20] Applicant’s Counsel relied for his argument in this respect on the decision of the Chief Justice and 5 Others v Law Society.14 As far as we are concerned, this decision merely acknowledged, at pp. 5-6 para 4, a practice that has grown of the use of a panel of three Judges whenever a constitutional question is determined, and did not condemn it. The discretion exercised by the Chief Justice in appointing one or more Judges in terms of Section 12 of the High Court Act, 1978 is a judicial one. There was no proof by Applicant’s Counsel that the discretion was exercised wrongfully. The objection to
13 Constitutional Case No. 14/2020
14 C of A (CIV) No. 59/2011
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the appointment of a panel of three Judges in this matter is, therefore, unsustainable.
Prejudice
[21] 1st to 4th Respondents’ Counsel argued further that no prejudice is suffered by any party in the sitting of a three - panel bench. She contended that Applicant’s Counsel does not show how the Applicant will be prejudiced by the appointment of a three-panel bench. Applicant’s Counsel has not shown any prejudice that his client would suffer if the matter is heard by a panel of three Judges. The court stated in Trans - African Insurance Co., Ltd v Maluleka15 that:
technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits.
15 1956 (2) SA 273 (A)
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This case was cited with approval in Mputsoe v P.S Ministry of Development & Planning.16
The purported violation of Section 12 of the High Court Act, 1978 by the Chief Justice in the appointment of the panel of Judges in this matter
[22] This argument emanates from the words used in Section 12 of the High Court Act, 1978 that the Chief Justice shall ‘regulate the distribution of the business of the court.’ Applicant’s Counsel relying on Abdul Rauf Abubaker v Ellerines Furnishers (Lesotho) Pty Ltd and Another17 contends that the Chief Justice has no power to distribute cases to Judges. He says the Chief Justice’s power is confined to regulating the distribution not to distribute the cases himself. He contends he has to direct someone else, perhaps the Registrar, to allocate cases to Judges, not his office.
16 (CIV/APN/ 338 of 17) [2018] LSHC 22 (29 August 2018) at para. 5 p. 3
17 CIV/APN/288/89 at pp. 5-6
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[23] The Court held in Abubaker (supra) that the expression “regulate the distribution” in Section 12 does not mean that the Chief Justice distributes the business of the court but that he regulates such distribution to be done by someone else, namely, the Registrar.
[24] This decision was confirmed by the Court of Appeal in All Basotho Convention and 5 Others v Habofanoe Lehana and 2 Others consolidated with All Basotho Convention and 5 Others v Motseki Lefera and 2 Others18 that distributing does not entail that the Chief Justice (then Mahase J., acting) had herself to allocate cases to Judges. That the allocation can be done by anyone else mandated to do so.
[25] 1st to 4th Respondents’ Counsel’s reaction to this legal point, is that there being no evidence or facts on record that provides insight into the manner in which this panel of Judges was appointed, they assume it was done properly. The court is
18 C of A (CIV) No. 32 and 33/ 2019 at para 28 p. 21
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seized with how the appointment process occurred as reflected in the file.
[26] The Chief Justice is ipso facto the head of the judiciary including the High Court. As such he holds both overall judicial and managerial powers of the judiciary as an institution. Supervision is an intrinsic part of management. Allocation of matters to Judges is one of the primary administrative tasks in the administration of justice. He, therefore, has supervisory powers over the allocation of cases, particularly constitutional cases because of their sensitivity and importance. This entails providing guidance to the office of the Registrar on the allocation of such cases. It was in exercise of this supervisory role that Mahase J., provided stewardship to the Assistant Registrar, Ms T. Kholoane to distribute this case to the three of us. The file bears the latter’s signature and is dated 09th September, 2024.
[27] The interpretation given by this court in Abubaker (supra) was in the context of a case in which court papers were sent
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straight from the Registry to the Chief Justice’s Secretary to be placed before him for allocation. The court found the procedure irregular. Indeed, this was a usurpation of the Registrar’s powers. Every case must be addressed to the Registrar of this court.
1st to 4th Respondents’ Counsel’s point in limine - Applicant’s failure to comply with Rule 175
[28] As aforesaid, 1st to 4th Respondents’ Counsel raised a three -pronged objection to Applicant’s claim relating to non - compliance with Rule 175 as illustrated above. He submits that the Applicant received the ‘show cause’ letter on 14th May 2024, served on 1st to 4th Respondents on 02nd July 2024 with no application for condonation. Counsel contends that the prescribed thirty days expired on 18th June 2024.
[29] In reaction, Applicant’s Counsel submitted that he has not approached this court in terms of Rule 175 but on various provisions of the law, namely, the constitutionality of the executive or administrative act or conduct envisaged by Rule
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86 (5), under Part 10 which deals with constitutional matters, hence, no obligation to attach a record. According to him, this eliminates all 1st to 4th Respondents’ Counsel’s arguments around Rule 175 (1). He submitted that Rule 175 (1) is irrelevant to the nature of the review application that his client has launched.
Evaluation
[30] Both Counsel were called upon to address the court on whether “any statutory body” includes Respondents herein. Adv., Roux argued that the word “any” denotes a wide application of the Rule as it regulates the process of setting aside administrative or executive decisions. He further argued that a purposeful interpretation of the rule would avoid prejudice as it lays down time - frames that would assist in timely finalisation of matters.
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[31] The court finds Rule 175 (1) is irrelevant to these proceedings because 1st to 4th Respondents are not entities listed under thereunder. It provides that:
Notice of a review of the decision of a Subordinate Court, court martial, tribunal or any statutory body shall, unless otherwise provided in an applicable law, be delivered within thirty days after the date of such decision, but where the reasons for the decision are given on a later date, the notice may be delivered within thirty days of the giving of the reasons.
[32] The type of review anticipated by this Rule is of a decision of a ‘Subordinate Court, court martial, tribunal or any statutory body’ and the 1st to the 4th Respondents do not fall within these categories. This would hold true regardless of whether the matter is considered to be a review of an executive or an administrative decision or conduct.
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[33] The power to institute civil or criminal matters before the High Court flows from Section 2 (1) (a) of the High Court (Amendment) Act 198419 which provides that:
The High Court shall continue to exist and shall, as to heretofore, be a superior court of record, and shall have unlimited jurisdiction to hear and determine any civil or criminal proceedings under any law in force in Lesotho.
[34] This power derives from the Constitution, the supreme law of the land, which provides in Section 119 that:
There shall be a High Court which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings and the power to review the decisions or proceedings of any subordinate or inferior court, court-martial, tribunal, board or officer exercising judicial, quasi-judicial or public administrative functions under any law and such jurisdiction and powers as may be conferred on it by this Constitution or by or under any other law.
19 Act No. 34 of 1984
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The 1st to 4th Respondents exercise a public administrative function.
Conclusion
[35] Having disposed of the preliminary objections, the court is in a position to determine the merits of this matter. Both parties not having been successful on the preliminary objections to the proceedings, the court shall not order any costs.
ORDER
[36] In the result, the following order is made:
(a)
All the preliminary objections are dismissed;
(b)
That parties set the matter down for the hearing and determination on the merits;
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(c)
The matter shall proceed with the current panel of Judges; and
(d)
There is no order as to costs.
_____________
F.M. KHABO
JUDGE
____________
M.S. KOPO
JUDGE
_______________
T.J. MOKOKO
JUDGE
For the Applicant : Adv., S.T. Maqakachane
For the Respondents : Adv., J. Roux SC
Adv., L. Fourie