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,

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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

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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

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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

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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."

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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

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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

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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.

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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

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(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

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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:

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"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

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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

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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

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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

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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

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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."

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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

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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...".

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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.

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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

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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

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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

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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

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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:

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"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 :

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"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

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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

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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

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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.

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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