C. of A.
(CIV) NO. 5 OF 1985

IN THE
LESOTHO COURT OF APPEAL

In the
matter between –

THE LAW
SOCIETY OF LESOTHO Appellant

and

THE
HONOURABLE THE PRIME

MINISTER
OF LESOTHO 1st Respondent

and

THE
SOLICITOR GENERAL 2nd Respondent

HELD AT
MASERU

CORAM:

Schutz P.

Mahomed J.A.

Aaron J.A.

J U D G M
E N T Schutz, P.

Inasmuch
as this case is concerned with the independence of the judiciary it
is a most important one. An application was brought
before the High
Court by the Law Society of Lesotho against the Honourable the Prime
Minister as first respondent and the Solicitor
General (now to read
Attorney-General) representing the Government as second respondent,

2

claiming
that the appointment of the Honourable Mr Acting Justice Peete was
made in contravention of the respondent's

(sic)
duty to guarantee the independence of the Courts in terms of section
16(6) of the Human Rights Act 24 of 1983

(effective
since 18th July 1984); and claiming further that the respondent (sic)
be called upon forthwith to termi-minate the appointment
of Mr Peete
as an acting judge. Mr Peete was so appointed by G.N. 28 of 1985
dated 28th February 1985 and gazetted on 5th April
1985, with effect
from 4th March 1985, "until further notice". The
appointment was made by "His Majesty The King
... with the
advice of the Prime Minister". On 15th April 1985 Mr Peete took
the oath in the prescribed form which enjoins
him to "administer
justice to all persons alike without fear, favour or preju­dice
and in accordance with the law and
customs of Lesotho". The
application was dismissed with costs by Levy A.J. and now comes
before us by way of appeal.

The main
thrust of the Law Society's case is that the appointment contravenes
the terms of sections 16(6) and 2(1) of the Human
Rights Act
(hereinafter H.R.A.). Section 16(6) reads:

"The State shall have the duty to guarantee the independence of
the Courts and shall allow the establishment and improvement
of
appropriate national institutions entrusted with the promotion and
protection of the rights and freedoms guaranteed by this
Act."

Section
2(1) guarantees:

"the right to a fair and public hearing by

3

independent, impartial and competent national courts in the
determination of the rights, obligations, and criminal offences..."

The
reason why this enactment is invoked is that Mr Peete "has at
all times material to this application been a member of the
staff of
the Director of Public Prosecutions and the Solicitor-General who are
the agents in litigation for the Government of Lesotho".
It is
further averred that, "Because of the fact that the said Peete
was to be appointed on a temporary basis only it was
and is the view
of the applicant (by unanimous resolution of its members), ... that
in a formal sense the said Peete would, despite
his appointment as an
Acting Judge, remain under the autho­rity and control of the
Director of Public Prosecutions and Solicitor-General...".
The
conclusion is then drawn that "the said Peete is not and cannot
be simultaneously in the employment of the Director of
Public
Prosecutions and the Solicitor-General aforesaid, and also be an
inde­pendent Judge of the High Court of Lesotho in
the sense
intended in section 16(6) of the Human Rights Act, 1983."

The
application evoked a strong reaction from the Attorney-General in
these words: "The applicant's apprehension that . . .
Peete
would remain under the authority and con­trol of the Director of
Purlic Prosecutions and the Attorney-General is unjustified,
unsound,
devoid of any truth and constitutes an unwarranted slur not only on
Peete himself but also on the office I have the honour
to hold. The

4

moment he
had been sworn in as an Acting Judge, Peete or indeed any one would
have no further connection with the Law Office or
with me or the
Director of Public Prosecutions and he has to perform the duties
imposed on him by law accor­ding to the terms
of the judicial
oath and the dictates of his conscience... In reality Peete ceased to
be a member of the Law Office with effect
from 15th April 1985, the
date on which he was sworn in as an Acting Judge... To allege that
the said Peete is simultaneously in
the employment of Law Office and
the High Court is a manifest distortion of the truth and probably
stems from a lack of comprehension
of the relevant statutory
provisions relating to the emoluments and service conditions
applicable to judges which are set out in
section 15 of the High
Court Act. The said appoint­ment in no way can be construed to
contravene the Human Rights Act."

This
reaction of the Attorney-General is perhaps not sur­prising. But
I think it is better to approach a matter of such importance
to the
country quite calmly. Whatever the result, the Law Society has
brought forward a case which has caused the members of this
Court
deeply to ponder. It is right that the matter should have been
brought into the open before the proper forum, namely the
ordinary
Courts of the land, and it is a credit to a country and not a
discredit that such matters should be so ventilated. If
the
applica­tion were to be brought it was right that the Law
Society, speaking on behalf of the professions, should bring
it. The
Law Society may indeed be a "national institution entrusted

5

with the
promotion and protection of the rights and free­doms guaranteed
by this Act", as envisaged by s.16(6) of the H.R.A.
I do not
know what quarrels there may be between the various persons
concerned, although I have heard rumours, and I do not want
to know,
and should not know. The rumours I ignore. I approach this matter on
the basis that both the Attorney-General and the
Law Society hold
their opposed views strongly but sincerely. Having said that it
becomes time to turn to the merits of the dispute.

THE
HISTORY

Before
dealing with abstractions (if most important abstractions) such as
"an independent judiciary" I think it wise first
to have
regard to the main relevant laws which over the years have regulated
the constitution, the common law and the law courts
of Lesotho. In
the year 1868 the Annexation Proclamation 14 of 1968 was enacted, in
these words:

"With
a view to the restoration of peace and the future maintenance of
tranquility and good government on the North Eastern
Border of the
Colony of the Cape of Good Hope, Her Majesty, the Queen, having been
graciously pleased to comply with the request
made by Moshesh, the
Paramount Chief, and other Headmen of the Tribes of the Basutos, that
the said tribe may be admitted into
the allegiance of Her Majesty."

6

The
effect of this was that the Basutos (as then known) became British
subjects, and the land became British Territory.

In 1884
and by virtue of section 12 of Proclamation 2B of 1884 the
Roman-Dutch law became the common law of Basutoland, by virtue
of
these words:

"In all suits, actions or proceedings, civil or criminal, the
law to be admini­stered shall, as nearly as the circumstances
of
the country will permit, be the same as the law for the time being in
force in the Colony of the Cape of Good Hope; Provided
. . ."

This
Proclamation as later published appears to be a slightly amended form
of section 12 of the original Proclamation 2B of 1884
issued by the
High Commissioner Sir Hercules Robinson. The Proclamation dealt with
many other matters as well, and more particularly'
the judicial
system, if so it might be called. Notwithstanding that by virtue of
Proclamation 1 of 1884 a Resident Commissioner
had been appointed as
the authority responsible for "peace, order and good
government", he was also empowered by virtue
of s.1 of
Proclamation 2B, "to hold a Court and to exercise jurisdiction
in and adjudicate upon all causes ... civil or criminal
...". An
Assistant Resident Commissioner could also have judicial powers
conferred on him (s.2). Ever, an Inspector of Police

7

would
have "jurisdiction ... in such cases and matters as may be
defined". One miqht, wrongly, have con­cluded that
the
British had not even heard of Montesquieu. This position was
maintained by the Order in Council of 2nd August 1910 which,
recognising that "there is no Supreme Court" in Basutoland,
ordered that the Resident Commissioner, "as judge of
the Court
of the Resident Commissioner in Basutoland, shall be a judge"
for the purposes of the Foreign Tribunals Evidence
Act, 1856, and the
Commission Act, 1859. Perhaps, then, there was truth in the remark of
Willis J in Lee v Bude and Torrington
Railway Company (1871) L.R. 6
C.P.576 at 582 when he said, "It was once said - I think in
Hobart - that if an Act of 'Parliament
were to create a man judge in
his own case, the Court might disregard it. That dictum, however,
stands as a warning rather than
an authority to be followed."

By virtue
of Proclamation 57 of 1938 provision was made for the creation of a
High Court, to be manned by a man of legal training
and experience,
and appointed by the High Commissioner. The Deputy Resident
Commissioner, however, remained vested with a limited
jurisdiction
when the Hiqh Court was not in session (s . 11) .

Proclamation
18 of 1954 repealed the former Proclama­tion but maintained the
High Court and provided for a

8

Chief
Justice and Puisne Judges. Again legal training and experience were
requisites for appointment. But the limited jurisdiction
of the
Deputy Resident Commissioner remained (s.13) .

So far
there were no particular provisions guaranteeing security of tenure.
Then came the Basutoland (Consti­tution) Order in
Council of
1959. The pattern was similar, but there was one important
innovation, con­tained in s.67. A judge could be removed
only for
inability to discharge the functions of his office or for
misbehaviour, and that only on the recommendation of the Judicial

Committee of the Privy Council after suitable enquiry. So far
Montesquieu would have approved. But in s.68 provision was made for

appoint­ment of acting judges whose appointment could be revoked
by the High Commissioner after consultation with the Chief
Justice.

In 1967
there was enacted a new High Court Act 4 of 1967 which repealed the
High Court Proclamation 18 of 1954. Unfortunately the
only copy
immediately avail­able to me is one in which repealed sections
are not shown, namely an edition published in 1970
or later.
Accordingly the possibly interesting s.4 of the original Act is not
printed. In its amended form the Act makes no provision
for the
security of tenure of judges.

9

However
that may be there was at the time in force the Constitution of
Basutoland which is Schedule II to the Basutoland Order 1965.
Chapter
1 of the Constitution is headed "Protection of Fundamental Human
Rights and Freedoms". In this chapter are to
be found many of
the fundamental human rights and freedoms now ex­pressed in the
H.R.A. Of particular interest is section 9(1)
which commences:

"If
any person is charged with a criminal offence, then, unless the
charge is withdrawn, the case shall be afforded a fair
hearing within
a reasonable time by an independent and impartial court established
by law." (My emphasis.)

Section
107(3) provides:

"A person holding the office of a judge of the High Court may be
removed from office only for inability to per­form the
functions
of his office (whether arising from infirmity of body or mind or any
other cause) or for misbehaviour and shall not be
so removed except
in accordance with the provisions of this section."

The
procedures to be followed prior to removal are similar to those in
the 1959 Order in Council.

This
enactment was replaced by the Lesotho Independence Order of 1966, but
the human rights first expressed to be guaranteed in
1965 were
suspended by Orders Nos. 1 and 2 of 1970. Order No 2 is entitled The
Constitution

10

(Suspension) Order 1970 and affirms the suspension of the Lesotho
Independence Order 1966. Save for the H.R.A. the rights guaranteed
in
1965 have remained suspended until the present day insofar as their •
expression in general form is concerned.

In 1978
the High Court Act 1967 was repealed and replaced by the High. Court
Act 5 of 1978. Again provision was made for a legally
qualified bench
consisting of a Chief Justice and one or more puisne judges. Section
2(1)(a) provides that the High Court shall
have:

"(a) unlimited jurisdiction to hear and determine any civil or
criminal pro­ceedings under any law in force in Lesotho."

I mention
this provision because it is in itself an important one because even
independent judges are of little help in protecting
the rights of
citizens if the powers of the judges are so circumscribed that they
are denied the power of upholding the rights
of citizens if they are
impinged upon.

Sections
3, 4 and 14 require quotation in full. They read as follows:

"3.
(1) The Chief Justice and judges shall be appointed by the King
'acting in accor­dance

11

dance
with the advice of the Prime Minister.

(2) A
person shall not be qualified to be appointed as a judge of the High
Court unless .

1. he
   holds or has held office as a judge of a court having unlimited
   jurisdiction in civil and criminal matters in some part of
   the
   Common­wealth or of a court having juris­diction in appeals
   from such a court; or

   
   

2. holds
   the qualifications required for admission and enrolment by the High
   Court as advocate or attorney under the Legal Practitioners
   Act 1967
   and has held the same for a period of not less than five years.

   
   

(3) If
the office of Chief Justice is vacant or the Chief Justice is for any
reason unable to exercise the functions of his office,
then, until a
person has been appointed to and has assumed the functions of that
office or until the person holding that office
has resumed his
functions, as the case may be, they shall be exercised by such one of
the judges or by such other person qualified
to be appointed as a
judge of the High Court as the Prime Minister may appoint.

(4) If
the office of a judge is vacant or if a judge is appointed to act as
Chief Justice or is for any reasonable unable to perform
the
functions of his office or if the Chief Justice advises the Prime
Minister that the state of business so requires the Prime
Minister
may appoint a person who is qualified - to be appointed as a judge of
the High Court to act as judge of that court.

(5) A
person appointed under sub­section (4) to act as judge shall,
subject to section 4(1) and 4(3), continue to act for the
period of
his appointment, or if no such period is specified, until his
appointment is revoked by the Prime Minister.

12.

(6) A
person appointed to act as Chief Justice or as a judge in pursuance
of sub­section (3) or (4) may, notwithstanding the
assumption or
resumption of duties by the Chief Justice in the first case, or the
expiration of the period, or the revo­cation,
of the appointment
in the second case, continue to act as Chief Justice or judge for so
long and to the extent as may be necessary
to enable him to deliver
judgment or to do any other thing in relation to proceedings which
were com­menced before him previously
thereto."

"4. (1) Subject to this section, a person holding the office of
a judge of the High Court shall vacate the office when he
attains the
age of 75 years.

(2) . Notwithstanding that he has attained the age prescribed in
sub­section (1) the person holding the office of judge of
the
High Court may continue in office for so long after retaining the age
as may be necessary to enable him to deliver judgment
or to do any
other thing in relation to pro­ceedings commenced before him
before he attained that age.

(3) A judge of the High Court may be removed from office by the King
acting on the advice of the Prime Minister but only for inability
to
perform the func­tions of his office (whether arising from
infirmity of body or mind or any other cause) or for misbehaviour."

"14. (1) No Chief Justice or Judge shall accept or perform any
other office or place of profit or emoluments not autho­rised
by
law.

(2) Sub-section (1) shall not apply to a judge who may be temporarily
appointed under section 3(4)."

Section 15 also requires mention. It reads:

13

"15. (1) In addition to their salaries under the Statutory
Salaries Order 1972 there shall be paid to judges of the High Court

such gratuities and allowances and there shall be granted to them
such privileges in respect of leave of absence, transpor­tation,

passages and residential quarters as may be prescribed by resolution
of the Assembly to that effect.

(2) Pending a resolution of the Assembly for the purposes of
sub-section (1), the gratuities and allowances payable and the
privileges
granted members of the public service pursuant to the
Public Service Regulations 1969 shall apply."

Pausing
at the year 1978, I think that it is clear that some of the most
important features of what is often labelled the independence
of the
judiciary are to be found in the High Court Act. But the independence
of an acting judge is not so jealously guarded as
that of an ordinary
judge. One impor­tant distinction is that an acting judge need
not be appointed for any specific period
and that his appointment may
be revoked at any time if he has been appointed in that way. It has
been argued on behalf of the applicant
that the Act is not to be read
in that manner, and it is contended that the acting judge also has
some form of security of tenure
by virtue of section 4. But confining
myself to the case of the acting judge appointed for an indefinite
period, I do not think
that that is so. The protection of his tenure
lasts only for so long as his appointment is not revoked. I ignore
cases where it
may be sought to demon­strate

14

strate
that the revocation is made in bad faith. Pro­vided only that a
revocation is made in good faith I do not think that
it is
justiciable. That, in my opinion, leads to the rejection of one
limited point advanced by the applicant, namely that the
appoint­ment
of Mr Peete is bad simply because it is expressed to be revocable
upon notice.

The
second important difference between the acting judge and the ordinary
judge is that the former may hold other offices of profit
whereas the
latter may not. One can readily appreciate on what grounds of
expediency this distinction is made. It may be expecting
too much of
a practitioner who acts as a judge for a short period that he should
divest himself of his other offices or positions.
But that conclusion
does not necessarily lead to the conclusion that the nature of the
office which he may continue to hold is
irrelevant. I shall return to
this important question at a later stage.

I have
not dealt with the Court of Appeal Act 10 of 1978, or the preceding
legislation dealing with appeals from the High Court
because I do not
think that the matter would be particularly further advanced by a
reference to this legislation. The pattern is
not dissimilar to that
1 which I have sketched in relation to the High Court. Nor have I
given

15

consideration
to the position of the various lower courts, concerning which we were
to some extent addressed. Although there are
various clear
indi­cations of a desire for independence I do not think that it
can be contended that the lower courts are ideally
independent, as is
also the position in many other countries that have an independent
supreme court. One of the indications to
which I would point is the
Judicial Service Commission Act 7 of 1983 (in force since 15 February
1984) which Act has application
to magistrates, judicial
commissioners, and now also, by virtue of G.N.7 of 1984 to Presidents
of Central and Local Courts. The
commission consists of the Chief
Justice, the Chairman of the Public Services Commission, and one
other who presently holds or
who in the past has held judicial
office, he being appointed by the King acting on the advice of the
Prime Minister. This latter
appointee is also removable by the King
'acting on the advice of the Prime Minister. The Commission acts by
simple majority. Among
the functions of the Commission are the making
of representations to the Prime Minister as to the appointment,
discipline and removal
from office of those judicial officers to whom
the Act applies. Such judicial officers may be removed by the Prime
Minister acting
in consul­tation with the Judicial Service
Commission. The protection of tenure so accorded to these judicial

16

officers
is far from perfect. But even if that be so it does not affect the
importance of the independence of the judges of the
High Court, not
only because of the original jurisdiction of that court but also
because of its very important appellate and review
jurisdictions.

THE
"COMMON LAW"

During
argument frequent references were made to the "common law"
insofar as it might provide aids towards solving the
problem now
before us. Counsel both for the applicant and for the respondents
were agreed that in this particular case the "common
law"
to which reference is to be made is English and not Roman-Dutch. I
have placed the phrase common law in inverted commas
in much the same
way as I have earlier referred to "the independence of the
judiciary" as an abstraction. I have done
that deliberately
because I think that there is a danger in speaking too airily about
something that is in reality somewhat of
a compound of statute law,
convention and aspiration.

In order
to come to an understanding of the problem before us I think that it
is important to have regard to the history of the
Cape of Good Hope
and of Lesotho against the back­ground of the experience of other
nations. When one brings the history of
the Cape under review in
matters judicial one realises that the early treatment of Basutoland
was not so singular. Thus we read
in van Zyl, "The Batavian and,
the Cape Plakaten" (1908) 25 SALJ 246 at 259 that on 4

17

September
1652 the Commander van Riebeek brought a case for slander against a
soldier, one Joost van der Laeck. The Commander appointed
as judges
four seamen one, the captain of a ship, as President, another the
first lieu­tenant of the same ship and two corporals.
Other
examples are given of the Commander, or later the Governor acting in
the role of Chief Justice.

British
Justice, or so one seems to recall having heard, is held so far
superior to the justice of all other nations that it alone
deserves
the accolade of the capital letter. But what do we read? Van Zyl (op
cit at 259) tells us that after the first British
occupation of 1795
Earl Macartney on 24 July, 1797 appointed a court of appeal
consisting of the Governor as President and the
Lieutenant-Governor
as Vice-President. After the second British occupation of 1806 we
read in Sir John Wessels' History of the
Roman-Dutch Law 363 that in
May, 1807, the Governor constituted himself a court of appeal for
civil cases, with an appeal from
his decision to the Privy Council.
In the following year the Governor and two assessors became the final
court of appeal in criminal
cases. Further I refer to Hahlo and Kahn,
The Union of South Africa: The Deve­lopment of its Laws and
Constitution 205. Gradually
improvements were effected and in 1821
the Deputy Dolo-nial Secretary transmitted a damning report op the
administration of justice,
one of the points being the complete
absence of confidence in the members of

18

the court
other than Truter, who alone was fully acquainted with English and
had some legal education. The court referred to was
the Raad van
Justitie which had been re-established by the British. Other
communications of the time showed that the Governor and
the
Lieutenant-Governor had proved most unsatis­factory and dilatory
judges of appeal. The members of the Raad van Justitie
were mostly
persons elevated from the humbler, unprofessional ranks such as
wharf-master and member of the Commissariat Department.
Denyssen, The
Fiscaal, was "odious". This situation was vitally altered
by the First Charter of Justice of 1827, which
was followed by the
Second Charter in 1832. A Supreme Court along English lines was
created consisting of a Chief Justice (at £2,000
a year) and
two puisnes (at £1,500 a year), members of a United Kingdom or
the Cape Bar. The judges were to hold office quamdiu
se bene
gesserint (during good behaviour) as opposed to durante bene placito
(during the King's pleasure), as the old phrases go.
Hahlo & Kahn
(op cit) continue:

"Not all these recommendations were accepted. But the spirit of
reform was abroad, and within a lustrum the legal institutions
of the
Cape had been transmogrified. The new order was to influence the
legal structure of all future European settlements in southern

Africa."

19

This
latter statement is incorrect only in its seeming limitation to
"European settlement".

As it is
to the English tradition in particular that the Cape of Good Hope and
also Lesotho looks for enlightenment as to the meaning
and content of
the phrase, an independent judiciary, it is of help to have regard to
the expressions of some of the greater exponents
of that tradition in
this century, and in the first place to the address of Sir Alfred
Denning (later Denning MR) entitled "The
Independence and
Impartiality of the Judges" (1954) 71 SALJ 345. He commences:

"What is necessary for a fair trial? There are many principles,
but the first and most important principle is that the judges
should
be absolutely independent of the Government. The English tradi­tion
of an independent judiciary is not the result of
any political
theory. We have learnt it by hard experience and by trial and error.
The constitutions of many other countries have
been influenced by
political theorists. The doctrine of Montesquieu about the separation
of powers played a great part in the con­stitution
of the United
States..."

It would
be right to interpolate that the English constitution, as he
perceived it, had played a great part in the thinking of Montesquieu.

A little lower down Sir Alfred Denning continues:

"The critical test which they must pass

20

if they are to receive the confidence of the people is that they must
be independent of the executive."

In the
next few pages Sir Alfred sketches out the lamen­table English
experience of the seventeenth century when the English
suffered under
mainly servile judges during the times of the Stuart kings.

Again I
interpolate to point out that this condition did not arise because
English lawyers were generally servile. It arose because
the position
of the judges was not secure in a time of despotic kings. Some of the
history may be read in the note by Serjeant
Heywood in the State
Trials Vol 12 p257 et seq. So, for instance, "The removal of Sir
Francis Pemberton has been supposed
to be occasioned, by the
honourable manner in which he had conducted himself, when presi­ding
at the trial of Lord Russel ...
or, as Kennet says, by his not 'being
able to go into all the new measures of the court' ... Sir Thomas
Jones ... The cause of
his removal was,... his positively refusing to
support the dispensing power of the crown... William Montague... This
removal was
occasioned by his refusal to support the dispensing
power... Sir Edward Nevill... was removed... for resisting the claim
to the
dispensing power... Sir Richard Holloway was ... removed ...
for his honest conduct in the trial of the seven bishops...".

21

Among
those judges who were not removed the name of one in particular was
burned into the English folk memory, Jefferies L.C.J.
I take as a
sample an exchange between him and counsel for the defence (not the
worst of his exhibitions by any means) in the trial,
in 1684, of
Braddon and Speke for the misdemeanour of subborning witnesses to
prove that the Earl of Essex was murdered by his
keepers. State
Trials Vol 9 p1177:

"Mr Wallop. I am in the judgment of the court, whether I do any
thing but what becomes an advocate for his client, according
to my
instructions.

L.C.J. Yes, you are so, and shall know that you are under the
correction of the court too.

Mr Wallop. My lord, I know where I am.

Mr Wallop. My lord, I am here of counsel for Mr. Braddon, and I only
ask questions as they" are in my breviate.

L.C.J. But, Sir, if you have any thing in your breviate that reflects
upon the government, you ought not to vent it, nor shan't
be
permitted to vent it as long as I sit here... No, let us hear the
truth, but not in the face of a court -permit men to asperse
the
government as they please by asking such questions...

L.C.J. And it is for the honour of all courts of justice not to
suffer reflec­tions upon the government, let them be whom they

will. And in gentlemen of the bar it is worse than others.

22

Just. Withins. Truly, I do not see where there is any countenance for
asking such a question.

L.C.J. No, but some people are so wonderful zealous

Mr Wallop. My lord, zeal for the truth is a good zeal.

It was
out of such incidents, rather than in the minds of philosophers that
the concept of the inde­pendence of the judiciary
took clearer
shape. I return to Sir Alfred Denning's outline.

In 1688
there occurred the "glorious revolution" when the last of
the Stuart kings, James II was forced to flee the land.
The Bill of
Rights of 1689 was confirmed in the Act of Settlement of 1701, and as
Sir Alfred says • (at 348), "we have
never since had any
trouble about it". Sir Alfred then quotes (at 349-350) Sir
Winston Churchill, who understood the English
language and the
English constitution so well. The occasion was a seemingly mundane
one when the House of Commons was debating
the judge's1 salaries. Sir
Winston said:

"The
principle of the complete independence of the Judiciary from the
executive is the foundation of many things in our island
life. It has
been widely imitated in varying degrees throughout the free world. It
is perhaps one of the deepest gulfs between
us and all forms of
totalitarian rule. The only sub­ordination which a judge knows in
his judicial capacity is that which he
owns to the existing body of
-legal doctrine enunciated in years

23

past by
brethren on the bench, past and present, and upon the laws passed by
Parliament which have received the Royal assent. The
judge has not
only to do justice between man and man. He also -and this is one of
his most important func­tions considered
incomprehensible in some
large parts of the world - has to do jus­tice between the
citizens and the State... The British Judiciary,
with its traditions
and record, is one of the greatest living assets of our race and
people and the independence of the Judiciary
is a part of our message
to the ever-growing world which is rising so swiftly around us."

What
constitutes or defines the independence of the Judiciary? Definitions
vary, but not as to certain basic essentials. A useful,
if not
complete dis­cussion is put forward by B R Bamford in "Aspects
of Judicial Independence" (1956) 73 SALJ 380.
The topics he
discusses are permanence of tenure, removal, remuneration, immunity,
protection from improper criticism, incapacity
to be a member of the
Executive or legislature, and natural justice. By the latter phrase
the author intends that no-one should
be judge in his own cause.
There are two distinct aspects of this rule. The first is that a
judge should not adjudicate an issue
in which he has a personal or
proprietary interest at stake. The second, and distinct one, is that
a judge should not. adjudicate
an issue where there is a "mere
possibility of a suspicion of bias, even when none actually"
influences his decision.

In an
article by Sir Guy Green, Chief Justice of

24

the
State of Tasmania, "The Rationale and Some Aspects of Judicial
Independence", The Australian Law Journal Vol 59 {1985)
p135,
which was handed in by Mr Slomowitz who appeared for the applicant,
certain further aspects of the concept are raised, which
need not
detain me now. It is interesting to see that Sir Guy Green says (at
136):

"It follows that courts are under a particular duty to ensure
that there - is no possibility that they may appear to be subject
to
interference or influence by the executive arm of Government because
in that event the courts might appear to lack impartiality
not only
in particular cases but in whole classes of cases."

It
appears then that the independence of the judiciary is not a precise
and immutable concept that has been handed down to us in
a book with
a black cover. But its essential qualities are easily perceived, as
also its fundamental importance. It is perhaps
the most important
human right of all in that without it other human rights may be
largely writ in water. Useful reference may
also be made to the words
of Schreiner, J A (later President of this court) in Minister of the
Interior and Another v Harris &
Ors 1952(4) SA 769(A) at 789.
Again the approach is pragmatic.

How then
did the law of Lesotho stand before the enactment of the Human Rights
Act? The aspiration is clearly to be seen in the
series of

25

enactments
to which I have already referred. But the matter does not end there.
To a very substantial extent aspiration had become
law.

And now
the Human Rights Act on which this application is largely based. The
main words, and I repeat them, are to be found in section
16(6)
reading:

"The State shall have the duty to guarantee the independence of
the courts..."

See also
section 2(1).

JUSTICIABILITY
OF THE HUMAN RIGHTS ACT

The first
question raised by the Crown is the justiciabi-lity of the H.R.A. In
the words of the heads of argument signed by Mr Tampi
(who did not
appear in the appeal, as Mr Muguluma did), the question is whether
the H.R.A. is justiciable or whether it is, "a
declaration of
high principles which the State should try to abide within the
existing or future legal, political and financial
constraints".
He calls in aid the case of Gupta v Union of India reported at
enormous length in 1981 S.C. Suppl. I do not
consider that the
particular legislation in issue in that case is comparable with that
in this case. In argument Mr Mugulumu conceded,
on the other hand,
that the H.R.A. is at least "not meaningless".

To my
mind the question of justiciability is readily

26

answered,
in favour of the applicant. The first pro­vision that is relevant
is a general one and is contained in section 15
of the Interpretation
Act 19 of 1977, which reads:

"Every enactment shall be deemed remedial, and shall be given
such fair, large and liberal construction and interpretation
as best
ensures the attainment of its objects."

But even
more to the point are the words of sub-sections 2(k) and (1) of the
H.R.A. itself, which read:

"Every individual shall be entitled to the enjoyment of the
rights and freedoms recog­nised and guaranteed in this Act

without distinction of any kind such as race, ethnic group, colour,
sex, language, religion, political or other opinion, national
and
social origin, property, birth and other status. These shall comprise
of

1. the
   fight to life...

   
   

2. the
   right to liberty... (k) the right to an effective remedy by the
   competent national courts for acts violating the fundamental
   rights
   granted by this Act; (1) the right to a fair and public hearing by
   independent, impartial and competent national courts
   in the
   determination of the rights, obligations, and criminal offences;

   
   

Also
relevant are the widely cast words of the preamble to the Act, which
read:

27

"To guarantee and safeguard the rights of individuals and to
ensure that conduct of persons administering the laws of the
country
conform with the provisions of this Act and for connected purposes."

Nothing
could be clearer than these provisions. The courts are plainly
enjoined to protect human rights conferred by the Act, and
not
otherwise taken away. It has been pointed out in argument that if the
legislature had intended to confine itself to a pious
expression of
good intent it could merely have made a non-binding declaration to
that effect. But it chose to do other­wise.
It made the Human
Rights Act part of the law of Lesotho. It is our duty to give effect
to that law. That being my conclusion I
find it unnecessary to deal
with the somewhat more vague notion generally graced with a Latin
tag, namely ubi jus ibi remedium.

SECTION 3
OF THE HUMAN RIGHTS ACT

In the
next place the Crown relies upon section 3 of the H.R.A., which
reads:

"Rights shall be subject to conditions pre­viously laid down
by law and shall only be encroached upon on such grounds
and in
accor­dance with such procedures as are established by law."

To my
mind the meaning of these words is clear enough. They mean, as I read
them, that where human rights have previously been taken
away by
legislation which stands

unrepealed,

28

unrepealed,
the H.R.A. does not re-establish those rights. The words also mean,
according to my view, that human rights that are
conferred by the
H.R.A. may be taken away by subsequent legislation. To this extent
human rights conferred by the H.R.A. are not
entrenched in the sense
that they cannot be taken away other than by some very special
procedures such as are largely found in
the Constitution of the
United States

of
America. As the H.R.A. is something new and an important instrument
that will require much interpretation in the future I wish
my words
to be understood to be confined to that which is now under
consideration. I do not address myself to whether, in general,
human
rights taken away either before or after the H.R.A. can only be taken
away expressly.

I also
think that it is important to emphasise that the possi­bility of
later amendment of the H.R.A. by the legislature is
not even before
this court. We are not concerned with any later amendment, because
there has been none in any relevant respect.
What we are concerned
with in this case is the act of the Execu­tive, and whatever the
H.R.A. means, taken in the matrix of
the laws, that meaning binds the
Executive.

Support
for the view that I have expressed concerning section 3 is to my mind
to be found in the decision in S v Marwane 1982 (3)
SA 717(A). In
that case the Appellate Division of the Republic of South Africa was
concerned, at a stage at which it could still
be concerned, with the
Bill of Rights contained in the Constitution Act of Bophuthatswana.
The section particularly under consideration
was section 93(1)

29

which
read:

"93(1)
Subject to the provisions of this Constitution

1. all
   laws which immediately prior to the commencement of this
   Constitution were in operation in any district of Bophuthatswana,

   and

   
   

2. all
   laws which, upon the addition of land to Bophuthatswana, apply on or
   in respect of such land,

   
   

shall
continue in operation and continue to apply except insofar as such
laws are super­seded by any applicable law of Bophuthatswana
or
are amended or repealed by Parliament in terms of the
Constitution..."

What the
majority of the Court particularly held (at 749-750) was that on this
form of wording earlier-laws yielded to the Constitution
and not the
other way around. Giving the majority judgment Miller, J A, said (at
750D) :

"The makers of the Constitution could, of course, had they so
elected to do, have made provision for the continued operation
of all
existing laws, whether or not they were in direct conflict with the
provisions of the Constitution. This was the course
followed in the
Constitution of Trinidad and Tobago, which also contained provi-sions
for 'The Recognition and Protection of Human
Rights and Fundamental
Freedoms'. After setting out such 'rights and free­doms', which
no law was to 'abrogate, abridge or
infringe', the Constitution went
on expressly to provide that the sections in which the rights were
defined 'shall not apply in
relation to any law that is in force in
Trinidad and Tobago at the commencement of this Constitution And the
declaration of constitutional
rights and freedoms was itself quali-

30

fied as
being 'subject to' the provisions of the later section which I have
just quoted. These facts are gleaned from the report
of the Privy
Council, delivered by Lord Diplock in Michael de Freitas v George
Ramoutar Benny & Ors 1976 AC 239 (PC) at 243-4,
to which Mr
Mahomed referred us.) ..."

To my
mind it is clear that Lesotho has chosen a course similar to that
chosen in Trinidad and Tobago and not similar to that which

Bophuthatswana chose. See further Smith v Attorney-General
Bophuthatswana 1984(1) 196(B) esp at 199H-200C, con­cerning which

it is not necessary for me to comment.

INTERPRETATION
AND APPLICATION OF H.R.A.

How is
one then to interpret a statute such as the H.R.A., so unfamiliar to
one with a Roman-Dutch or an English training but with
concepts so
familiar? I think that it would be wrong to try and provide any
definitive answer. But I think some things at least
are clear. The
first I have already stated, namely that the H.R.A. does have the
effect of law. The second (or perhaps this is
more than just a
second) is best stated in the words of Lord Wilberforce in the
unanimous decision of the Privy Council in Minister
of Home Affairs &
Ano v Collins MacDonald Fisher & Ano (1980) AC 319 (PC). This
appeal was concerned with a section in
the Constitution of Bermuda.
Lord Wilberforce said (at 328-329) :

"It can be seen that this instrument has certain special
characteristics. 1. It is particularly in Chapter I drafted in a

broad and ample style which lays down principles of width and
generality. 2. Chapter I is headed 'Protection of Fundamental Rights

and Freedom of the Individual. It is known that this

31

chapter,
as similar portions of other consti­tutional instruments drafted
in the post-Colonial period, starting with the Constitution
of
Nigeria, and including the Constitution of most Caribbean
territories, was greatly influenced by the European Convention for

the Protection of Human Rights and Fundamental Freedom (1953) (Cmd.
8969). That Convention was signed and ratified by the United
Kingdom
and applied to dependent territories including Bermuda. It was in
turn influenced by the United Nation's Universal Declaration
of Human
Rights of 1948. These antecedents, and the form of Chapter I itself,
call for a generous interpretation avoiding what
has been called 'the
austerity of tabulated legalism', suitable to give to individuals the
full measure of the fundamental rights
and freedom referred to....
When therefore it becomes necessary to interpret 'the sub­sequent
provisions of' Chapter I - in
this case section 11 - the question
must inevi­tably be asked whether the appellants' premise,
fundamental to their argument,
that these provisions are to be
construed in the manner and according to the rules which apply to
Acts of Parliament, is sound.
In their Lordship's view there are two
possible answers to this. The first would be to say that, recognising
the status of the
Constitution as, in effect, an Act of Parliament,
there is room for interpreting it with less rigidity, and greater
generosity,
than other Acts, such as those which are concerned with
property, or succession, or citizenship... The second would be more
radical:
it would be to treat a constitutional instrument such as
this as sui generis, calling for principles of interpretation of its
own,
suitable to its character as already described, without
necessary acceptance of all the presumptions that are relevant to
legislation
of private law.

It is
possible that, as regards the ques­tion now for decision, either
method would, lead to the same result. But their Lord­ships

prefer the second. This is in no way to say that there are no rules
of law which should apply to the interpretation of the Constitution,

A constitution is a legal instrument giving rise, among other things,
to individual rights capable of

32

enforcement
In a court of law. Respect must be paid to the language which has
been used and to the traditions and usages which have
given meaning
to that language. It is quite consistent with this, and with the
recognition that rules of interpretation may apply,
to take as a
point of departure for the process of interpretation a recognition of
the character and origin of the instrument,
and to be guided by the
principle of giving full recognition and ' effect to the fundamental
rights and freedoms with a statement
of which the Constitution
commences..."

The
essential parts of this passage were quoted' with approval by the
majority of the court in Marwane's case (above) at 748-749.
See also
the unreported decision of the Botswana Court of Appeal on 4 July
1984 in the matter of S v Clover Petrus and Mokganedi
Salaolo
(Criminal Appeal No 34 of 1983) where Fisher's case (above) is
referred to with approval at p31 of the judgment of Maisels,
P.

Further
guidance may be obtained from the by now quite numerous decisions of
the Judicial Committee of the Privy Council dealing
with legislation
having a similar source and inspiration. Several of the cases have
been concerned with the nature of courts, and
in the course of the
advices . of the Privy Council frequent references are to be found to
the doctrine of separation of powers:
see Attorney-General for
Australia and the Queen and the Boilermakers.' Society of Australia
(1957) AC 288 (PC); Liyanage v The
Queen (1967) AC 259 (PC):(1966) 1
All ER 650 (on appeal from Ceylon); Hinds and others v The Queen and
others (1977) AC 195 (PC):(1976)
1 All EH 353 (on appeal from
Jamaica) ; Maharaj v Attorney-General of. Trinidad and Tobaco

33

(No 2)
(1979) AC 385 (PC):(1978) 2 All ER 670; and Stone v The Queen (1980)
3 All ER 148 (PC) (on appeal from Jamaica). Among cases
dealing with
other or related rights are Olivier v Buttigieg (1967) AC 115 (PC):
(1966) 2 All ER 459 (on appeal from Malta); Chokolingo
v
Attorney-General of Trinidad and Tobago (1981) 1 All ER 244 (PC);
Riley and others v Attorney-General of Jamaica (1982) 3 All
ER 469
(PC); Attorney-General of Trinidad and Tobago and another v McLeod
(1984) 1 All ER 694 (PC); Societe United Docks and others
v
Government of Mauritius : Marine Workers Union and others v Mauritius
Marine Authority and others (1985) 1 All ER 864 (PC); and
Bell v
Director of Public Prosecutions of Jamaica and others (1985) 2 All ER
585 (PC):(1985) 3 W.L.R. 73. No point would be served
by discussing
these cases further. I confine myself to remarking that although a
Bill of Rights or like enactment is not always
easy to work, it can
be made to work and often to good effect.

It might
be contended that the H.R.A. is something differ rent from some of,
the other instruments considered by the Privy Council
and the
Appellate Division, because it is not in terms a constitutional
instrument. As I have already indicated I think that that
fact may,
particularly because of the wording of section 3, have a bearing upon
the amenability to amendment of the H.R.A. and
the signi­ficance
of earlier legislation. But I do not think that it affects the manner
in which the H.R.A. is to be inter­preted,
and I consider it to
be an instrument similar, in relevant respects, to that described by
Lord Wilberforce.

34

The
H.R.A. must now be applied to the facts of this case. I have earlier
referred to the independence of the judi­ciary being
somewhat of
a rag-bag expression. But what is very important about the H.R.A. is
that in section 2(1) there is express reference
to independent and
impartial courts, the reference to independence being repeated in
section 16(6), Whereas before I have reasoned
from the particular to
the general, it now becomes necessary to reason from the general to
the particular. The enquiry is no longer
whether a bevy of phenoma
leads to a conclu­sion of independence. The enquiry is now what
is meant by the phrase itself "the
independence of the courts"?
The primary meaning of independent, according to the Shorter Oxford
English Dictionary is, "not
depending upon the authority of
another; not in position of subordination; not subject to external
control or rule; self-governing,
free". We have to give a
meaning to the words "the inde­pendence of the courts",
and there is no reason to give
them a meaning other than their
ordinary meaning. In addition there is a technical legal meaning that
in no way narrows the ordinary
meaning, but rather renders it more
specific. From what I have said earlier in this judg­ment it must
be plain that although
the exact edges of the legal definition might
be imprecise the more important content is perfectly clear.

What are
the facts of this case? The applicant complains that Mr Peete was a
civil servant, is

35

still a
civil servant, and will probably continue to be one. The applicant
contends, and this at least is not contested, that Mr
Peete's
connection with the Crown has not been permanently severed. So that
the complaint is not that Mr Peete was once a member
of the
prosecution. Accordingly those cases in the past where magistrates or
prosecutors have been raised to the judiciary perma­nently
are no
guide. The Crown on the other hand contends that there is no
substance at all in all this, that Mr Peete has pro tern severed
all
connection with the Crown Office, that he is now a judge and not a
prosecutor, that no commands can or will be given to him,
nor will he
be influenced at all, and that all is perfectly proper.

FURTHER
STATUTES GOVERNING CONDITION OF JUDGES AND PUBLIC SERVANTS

We have
attempted, largly in vain, to determine the exact factual nature of
Mr Peete's present condition. I shall come back to that.
I think it
safer to start with the law. Whilst he was still in the Crown Office,
Mr Peete's position was governed by the Public
Service Order 21 of
1970. Sections 7 and 8 contain general provisions to the effect that
a civil servant may not, in general, although
there be exceptions,
take other employment or devote his working time to an employer other
than the Crown. Then follows section
9 which reads:

"9.
(1) No fee, reward or remuneration of any kind whatsoever, beyond his

36

emoluments,
shall be received and kept for his own use by a public officer for
the performance of any public service unless specially
authorised by
law or by the terms of his appointment or the Minister.

(2) A
public officer who is required in the course of his duty to perform a
service that is rendered otherwise than in the public
service for
which a charge would lawfully be payable shall report the fact to the
Minister who shall, with the concurrence of the
Minister respon-sible
for finance, decide what amount should be charged for that service,
and that amount shall be paid to the
Consoli-dated Fund or to such
other fund as may have been duly established by or under a law."

By virtue
of section 2(1) "public office" means any office of
emolument in the public service, "public officer"
means a
person holding or acting in any public office, and "the public
service" means, subject to the provisions of this
section,
service in respect of the Government of Lesotho. Section 2(3)
provides:

"In this Order, unless the context otherwise requires,
references to an office in public service shall be con­strued as

including references to the office of a member of any court other
than a superior court or a court martial (being an office and

emoluments attaching to which, or any part of the emoluments
attaching to which, are paid directly out of public moneys) but shall

not be construed as including references to the office of assessor in
any court."

Section
2(4) provides :

37

"In
this Order the references to a public office shall, subject to the
provisions of any law for the time being in force and
relating to
pensions and the protection of pension rights, not be construed as
including any of the following offices but nothing
in this
sub-section derogates from the public nature of any of those offices
or the powers, duties and responsibility of the holder
of such an
office.

1. ...

   
   

2. ...

   
   

3. the
   office of judge of a superior court..."

   
   

On the
basis of these provisions I think that Mr Slomowitz is correct in his
contention that as a matter of law Mr Peete would have
to report his
judge's salary to the Minister who would have certain powers
thereanent, assuming that the order is still applicable
to him. Mr
Slomowitz also points to section 12(6) which deals with the
retire­ment of public officers in cases of abolition
of office or
redundancy.

Also very
much in point are sections 15 and 15A as inserted by Act 29 of 1984.
In terms of section 15(1) the office of the Attorney-General
is
stated to be, an office in the public service. Section 15(2) provides
that he is to be the principal legal adviser to the Government.

Section 15(3) provides that he shall repre­sent Lesotho in all
legal proceedings and that he shall on behalf of the State exercise

or perform any of the . rights, prerogatives, privileges or functions
of the State

38

any
before any court or tribunal, except in certain cases. By virtue of
section 15A(1) there is established the office of Director
of Public
Prosecutions in the public service. Section 15A(4) provides:

"In the exercise of functions vested in him by section 5 of the
Criminal Proce­dure Evidence Act, 1981, the Director of
Public
Prosecutions shall be subject to the direction and control of the
Attorney-General."

There are
further statutory provisions relating to the office of a judge. The
Statutory Salaries Order 8 of 1972 is, as I have already
set out,
referred to in section 15(1) of the High Court Act. That Order
provides that there shall be paid to the holders of certain
offices
such as the Chairman of the Public Service Commission, the
Auditor-General, the Chief Justice, a puisne Judge, and the

Attorney-General, amounts set out in a schedule which is amended from
time to time. Section 4 provides:

"The salary prescribed in respect of the holder of any office
shown in the Schedule and his other terms of service (other
than
allowances that are not taken into account in computing, under' any
law in that behalf, any pension payable in respect of
the service of
that office) shall not be altered to his disadvantage after his
appointment."

Here is
to be found another important provision of a kind intended to make
for the independence of a

39

judge,
although in times of high inflation it is not of great worth.

I have
found no statute dealing separately with the pensions of judges. The
general provision for pensions which would apply to
a public officer
and presumably applies also to a judge is the Basutoland Pensions
Proclamation 4 of 1964. Section 14 of the Regulations
under that
Proclamation reads:

"14. (1) Subject to the provisions of these regulations,
qualifying service shall be the inclusive period between the date
on
which an officer begins to draw salary in respect of public service
and the date of his leaving the public service without deduction
of
any period ' during which he has been absent on leave.

(2) No period which is not quali­fying service by virtue of
paragraph (1) of this regulation shall be taken into account as

pensionable service.

(3) No period during which the officer was not in public service
shall be taken into account as qualifying service or as pensionable

service."

Section
15 reads in part;

"15. (1) Except as otherwise provided in these regulations, only
continuous public service shall be taken into account as
qualifying
service or as pensionable service:

Provided that any break in service caused by temporary suspension of

40

employment
in the public service not arising from misconduct or voluntary
resignation shall be disregarded for the purposes of this

paragraph:..."

Section
16 reads:

"No period during which an officer has been absent from duty on
leave without salary shall be taken into account as pensionable

service unless such leave has been granted on grounds of public
policy with the approval of the Resi­dent Commissioner."

It is to
be noticed that I have quoted the regulations in their original form.

Reverting
back to the Basutoland Pensions Proclamation itself, section 5(1)
provides:

"No officer shall have an absolute right to compensation for
past services or to pension, gratuity or other allowances; nor
shall
anything in this Proclamation affect the right of the Crown to
dismiss any officer at any time and without com­pensation
."

FURTHER
APPLICATION OF THE LAW TO THE FACTS

I have
referred earlier to our difficulty during the hearing in trying to
determine the facts relating to Mr Peete's appointment
as an acting
judge and to his relationship or lack of relationship with the
Executive. We have been told by Mr Mugulumu that while
he has been
acting Mr Peete has been paid as a judge and not as a prosecutor.
That may be eminent good sense, but if he is still
a civil

41

servant,
it does not appear to be the law. The constant refrain of the
argument for the Crown is that his relation­ship with
the Crown
Office has been "severed". What that means is not clear.
The applicant's allegation is that at • all material
times Mr
Peete has been a member of the staff of the Director of Public
Prosecutions and the Attorney-General. When Mr Mugulumu
was squarely
asked he said that he thought that Mr Peete had not resigned as a
civil servant. The pensionability of his period
spent as an acting
judge is also wrapped in obscurity. It is also said, and it is no
doubt correct, that Mr Peete has been given
leave of absence from the
Crown Office. We were told in argument that the former Chief Justice,
Mapetla, C J, was a civil servant
until the time of his death.
Further, we were told that in 1982 two present judges severed their
connec­tion with the civil
service. All this is very uncertain to
us because of the form in which the case has been pre­sented.
What at least does appear
to be probable is that in due course Mr
Peete will return to the Crown Office, if he has not already done so.
There he will be
subordinate to his superiors and dependant upon them
to an extent as to his promotion, his place and conditions of work,
and .
his pension. On the whole it seems to me better to have regard
to the law rather than to the particular facts in this case, whatever

exactly they may be.

JUSTICE
MUST BE SEEN TO BE DONE AND THE H.R.A.

Earlier I
have drawn attention to the fact that in terms

42

of
section 14(2) of the High Court Act an acting judge is not prohibited
from holding some other office of profit. I left open the
question
whether it mattered what the nature of that office was. It seems to
me that it is a most important question. The major
thrust of the
applicant's case is not that Mr Peete has come from the Crown Office,
but that he has not severed his connection
with it, and will in all
like­lihood return to it. A useful way of testing that complaint
is to postulate what ought to happen
if an accused person or a
litigant against the Government were to ask Peete, A J, to recuse
himself in a parti­cular case.
The law in such a case is
perfectly clear. It would be as well to repeat the oft-quoted passage
in the judgment of Lord Hewart,
C J, in The King v Sussex Justices
(1924) 1KB 256 at 259, to wit:

"But while that is so, a long line of cases shows that it is not
merely of some importance but is of fundamental importance
that
justice should not only be done, but should manifestly and
un­doubtedly be seen to be done... The answer to that question

depends not upon what actually was done but upon what might appear to
be done. Nothing is to be done which creates even a sus­picion

that there has been an improper interference with the course of
justice."

As is
usual there is an antidote to that passage. It is contained in the
judgment of Slade, J, in R v Camborne Justices & Ano
(1955) 1QB
41 at 52, where, in delivering the judgment of the Full Court he
said:

43

"Whilst endorsing and fully maintaining the integrity of the
principle reasserted by Lord Hewart, this court feels that the

continued citation of it in cases to which it is not applicable may
lead to the erro­neous impression that it is more important
that
justice should appear to be done than that it should in fact be
done."

Be that
as it may Lord Hewart's dictum remains the lighthouse.

Postulate
now that a recusation application such as I have described be brought
by an uneducated and unrepresented accused. Suppose
he were to say
that he had no confidence in his judge's impartiality and that it was
just not good enough that he should te tried
on a criminal charge by
a judge temporarily seconded from the prosecution. Would his
apprehen­sions not be reasonable, however
unfounded they might be
in fact? But the matter does not end there. This application is
brought by the Law Society after unani­mous
resolution of its
members, who are men and women educated and experienced in the
practice of the law. I do not for one moment suggest
that their view
determines the matter. It is for the court to determine the matter.
But it is, nonetheless, surely a matter of
significance that the
representative of the professions has expressed

44

itself in
the manner that it has. The question is whether the Law Society is
being quite unreasonable. On its behalf it has been
pointed out
before us that Peete A.J.'s official duty as a judge may compel him
to give decisions most unpopular to his one-time
and future
superiors, or even to castigate them or their sub­ordinates for
the manner in which cases have been conducted. And
then he is to
return to work under his superiors!

To return
to the case of the uneducated and unre­presented accused, it is
my opinion that, faced by such a situation, Mr Peete
should recuse
himself. If that be so there then opens up a prospect of a string of
recusation applications. That would be a very
unfortunate situation
because the Crown is one of the most frequent litigants (in the wider
sense) before the High Court. Then
one might have the situation, as
my brother Mahomed put it in argu­ment, that the acting judge
would be confined to dealing
with cases about the ownership of
donkeys and the like. He would not be able to deal with questions
involving the lives and liberties
of men.

It is
important at this point, perhaps I should have said it earlier, to
emphasise that the attack of the applicant is in no wise
a personal
attack on Mr Peete as a man or as a practitioner, or upon

45

his
impartiality. To quote the words of the Law Society, Mr Peete, "is
regarded by his colleagues and members of the Bench
as an outstanding
member of our profession and a practitioner of the greatest integrity
and dedi­cation." Nor should anything
said in this judgment
be read as a criticism of Mr Peete himself. But I am concerned at
present not with the question of subjec­tive
impartiality, but
with independence and the appearances thereof.

To return
to the earlier mentioned prospect of a string of recusation
applications a wider question arises and it is this. If such
a thing
could happen would it mean that the executive had failed in its duty
to guarantee the independence of the courts in the
sense envisaged by
the H.R.A.? To put the matter another way, is the matter of
appearance of independence merely, itself an ingredient
of the
concept of an independent judiciary? Before attempting to answer this
question I suggest that it would be strange to say
that the judiciary
is independent in a state where the execu­tive for a time acts
quite scrupulously in treating the judiciary
as independent, yet the
laws give no security or independence to the judges.

In trying
to answer the questions which I have pro­posed it is important to
draw a distinction between a recusation application
in a particular
case and the

46

independence of the judges in a more general sense. Is it legitimate
to have regard to the principles applicable to a recusation

application in the issue before us? To my mind it is. The passages
that I have quoted above indicate that the public's right to
feel
confidence in the independence of judges is in itself part of the
concept of independence.

I have
given the most careful consideration to this conclusion because I am
alive to the possible criticism that the result (public
confidence in
the judiciary because it is seen to be independent) might be said to
be confused with the cause of that independence
which is not the
public confidence, but the presence of the various matters, factual
and legal, which make for independence. But
I do not think that that
is a valid criticism, because actions by the Executive which may
properly be seen to make it seem that
justice may not be done are not
actions which guarantee the independence of the courts, because they
may tend to bring the courts
into disregard or even contempt, and
that the courts should be legitimately protected against contempt is
one of the undoubted,
if less frequently stressed, elements of their
independence.

INDEPENDENCE
IN FACT

I have
chosen to base my finding on the above broad ground

47

which may
readily be understood, and not on the narrower, and I think more
contentious, ground that the statutes, and the undisputed
facts
placed before us show that Mr Peete is not in fact independent,
however much he and the authorities involved may have acted
in good
faith. However, I- think that factual basis, also, has been
established. Independence is not a state of being left alone
for a
day or three months. It is something more secure and more permanent
than that.

INTERACTION
OF HIGH COURT AND HUMAN RIGHTS ACTS

That
being so and if the H.R.A. stood alone I think that the question
posed by this case must be answered in favour of the applicant.
The
only remaining question, then, is whether section 3 of that Act, with
the potential that the High Court Act may over­ride
the H.R.A.
affects the position. That leads to the question whether there is any
conflict to be found between the High Court Act
and the H.R.A. in any
rele­vant respect. Mr Mugulumu has argued in effect, but what is
so different about a prosecutor? Why,
he says, treat him any
differently from an advocate or attorney temporarily appointed as a
judge and who will have to return to
his practice and to the
influences to which he is there subject? The answer to that, in my
view, is that there is a very real difference.
The history of the
concept of an independent judiciary has largely been concerned

48

with the
perception of men that it is necessary for their protection that,
independent judges should stand between them and the
executive when
conflicts arise between the two last-mentioned.

The High
Court Act envisages that an acting judge may hold another office of
profit. It does not in express terms state that such
an office may be
one in the Crown Office. On the interpretation that I consider should
be placed on the H.R.A. I think that such
an office of profit should
not include one in the Crown Office. There can only be a conflict,
express provision being lacking,
if it is to be implied into the High
Court Act that such a state of affairs is permitted., I do not think
that any basis has been
shown for such an implication. The High Court
Act does not even pur-' port to deal with the problem. It merely lays
down the requirements
of the qualification and experience for a
judge. And it does that in a negative way - see the words "shall
not be qualified
... unless". Nowhere does the Act say what
other qualities are required of a candidate for judicial preferment.
Accordingly,
in principle I consider that the application should
succeed on the main ground advanced.

WHO MAY
APPOINT ACTING JUDGES

A further
ground has also been advanced to the effect

49

that the
appointment should have been made by the Prime Minister and not by
the King, as it was in fact made, and that it is accordingly
invalid
in terms of section 3 of the High Court Act already quoted, which
draws a distinction in this regard between the appointment
of
permanent and acting judges. The purpose of the dis­tinction I
have already alluded to and it is obvious enough. Purposes
of
convenience may dictate that short-term appointments which sometimes
have to be' made urgently should not be made with all the
forma­lity
which surrounds the appointment of a permanent judge. In answer to
the contention advanced on behalf of the applicant
the Crown has
relied, inter alia, upon the King's prerogative. I find it
unnecessary to burden an already long judgment with a
discussion of
that subject. I think that the answer is to be found in the terms of
the High Court Act. Section 3(1), which deals
with the appointment of
the Chief Justice and the Judges uses the imperative word "shall"
when it says that the appointment
is to be made by the King. Sections
3(3) and (4) which deal with the appoint­ment of an acting Chief
Justice and the appointment
of an acting puisne judge by contrast use
the word "may". The Crown contends that the powers
conferred on the Prime Minister
by sub-sections 3(3) and (4) are to
be construed as being permissive and empowering and not as
imperative. I think that the contention
is well-founded. I also think
that the Crown is correct

50

when it
calls in aid in this connection section 15 of the Interpretation Act,
which I have already quoted in a 'different connection.
Accordingly I
consider that this question of law should be answered against the
applicant. The point is in any event one of technica­lity
because
the terms of the appointment show that when the King made the
appointment he was acting on the advice of the Prime Minister.

THE COURT
A QUO

So far I
have not referred to the judgment of the court a quo. Levy, A J, took
the same view as I have on the point just discussed,
but dismissed
the appli-'cation, if I may put it broadly, on the basis that there
was no reason to doubt Mr Peete's independence
and impartiality. I
have set out my reasons for judgment and find it unnecessary to
debate the detailed reasons of the judge a
quo.

COSTS

There
remains the question of costs. During the appeal I suggested to
counsel for both parties that in a case of this unusual kind
neither
of them should be asking for costs. But both sides still want their
pound of flesh. I feel considerable sympathy for the
Crown in regard
to the matter of costs but

51

as
against that I read the concluding words of the Crown's own heads of
argument to the effect that "the award of costs by
the court a
quo is appropriate and there is no conceivable reason to deprive the
successful party of their costs". In my opinion
no sufficient
reason has been advanced for departing from the ordinary rule that
the successful party is entitled to his costs.
This is clearly a case
entitling the parties to have employed senior counsel.

CONCLUSION

I come to
the form of order that should be made in this case. The applicant
sought what is called a declaratory order. The first
"declarator"
was to the effect that the appointment of Mr Peete had been made in
contravention of the H.R.A. That, I
think, the applicant is entitled
to. A problem is created by who is to have, the order made against
him. That is why I drew attention,
early in this judgment, to the
applicant's very loose and inaccurate use of the apostrophe. The King
made Mr Peete an acting judge,
but the applicant has not contended
that only the King can unmake him such. Presumably either the King or
the Prime Minister can
revoke Mr Peete's appointment, although I
express no opinion on this. Accordingly the order which I propose
does not make reference
to a particular respondent at all.

52

The
second "declarator" is to the effect that, "the
respondent (sic) be called upon to forthwith termi­nate the

appointment of the said Honourable Mr Acting Justice Peete". I
do not propose making an order in this form for two reasons.
The
first, and main one, is that the Crown is expected to obey the laws,
as enacted by the Legislature and declared by this Court.
The second,
and subsidiary, reason is that by the time that this judgment is
delivered Mr Peete may well no longer be an acting
judge.

The order
which I propose is the following:

The
appeal succeeds and the order made by the court a quo is set aside
and is to be substituted by the following:

1. It is declared that the appointment of the Honourable Mr Acting
Justice Peete as an acting judge was made in contraven­tion
of
the State's duty to guarantee the independence of the courts in terms
of section 16(6) of the Human Rights Act 24 of 1983.

2. The respondents are ordered to pay the appli-

53

cant's
costs in the court below, as also the costs of appeal, such costs in
both instances to include the costs incurred pursuant
to the
employment of two counsel.

W P SCHUTZ

PRESIDENT

I agree:

I MAHOMED

JUDGE OF APPEAL

I agree:

S AARON

JUDGE OF APPEAL

DELIVERED
at MASERU this 3rd day of Sept 1985.

For the
appellant: H Z SLOMOWITZ S.C. and S C M MAQUTU

For the
respondents: MR E D MUGULUMU