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C. of
A.(CIV) No.27/94

IN THE
LESOTHO COURT OF APPEAL

In the
matter between:

LESOTHO
HUMAN RIGHTS ALERT GROUP Appellant

vs

THE
MINISTER OF JUSTICE & HUMAN RIGHTS 1st Respondent

AND THE
DIRECTOR OF PRISONS 2nd Respondent

AND THE
ATTORNEY GENERAL 3rd Respondent

HELD AT:
MASERU

CORAM

TEBBUTT,
A,J.A.

STEYN,
A.P.

KOTZE,
J.A.

JUDGMENT

TEBBUTT.
A.J.A.

The
factual background to this appeal is common cause. It is this.

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In the
early part of this year, there was considerable unrest in Lesotho. In
January and again in April warring factions within
the army clashed
violently. The unrest caused by these clashes which apparently had
their origin in demands for pay increases,
spread to the police and
the prison services. On 10th May, 1994 the police went on strike
demanding a 60% pay increase and on 11th
May, 196 4 the prison
warders also declared that they were on strike, demanding a pay
increase as well. What occurred on that day
appears from an affidavit
riled by the Superintendent of Prisons and the officer commanding the
Maseru Central Prison, one Moloko

Leqele,
in the proceedings in the Court a_ quo. On

that day
the Deputy Director of Prisons went to the Central Prison to attempt
to negotiate a settlement of the prison warders' grievances.
After
lengthy discussions during which he told them that their strike was
illegal - police, prison officials and public servants
not being
permitted to strike if they have grievances - the prison warders told
the Deputy Director that they would carry out their
normal duties
except that :

1. they
   would not allow visitors to enter the prison premises,

   
   

2. they
   would not escort prisoners to the courts of law, and

   
   

3. they
   would not allow prisoners to go out for labour.

   
   

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At about
15.00 hrs on 11th May, 1994 a riot broke out among the awaiting trial
prisoners. Shots had to be fired to restore order
and certain of the
prisoners sustained injuries for which 24 of them had to receive
hospital treatment.

On 11th
May,1964 Mr. Phoofolo, who appeared for the appellant in this Court
and who is the president of the appellant, went to court
to defend
one of his clients and found that the latter had not been brought to
court. The courts were, in any event, closed, the
striking police
having seized the keys. On 12th May, 1994, Mr. Phoofolo went to the
Central Prison to consult with certain of his
clients where he was
confronted by a sign which read :

"No services are being offered from 11th May, 1994".

He was
denied access to the prisoners and could find out no information as
to their welfare. No prisoners were brought to court
from 11th May to
20th May, 1964. Relatives and other visitors were also not allowed to
visit prisoners in the Central Prison. The
same situation prevailed
in the prisons throughout the country.

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On 23rd
May, 1994 following a meeting on 20th May, 1994 of the executive of
the appellant, an application was brought as a matter
of urgency by
the appellant for the issue of a rule nisi calling on the respondents
to show cause why an order should not be granted
:

1. declaring
   the further detention of awaiting trial prisoners in Lesotho's ten
   gaols who ought to have appeared for further remand
   from 11th May,
   1994, illegal and that they be released forthwith;

   
   

2. (b)declaring
   the failure and/or refusal of the prison officers to bring prisoners
   to court for their trials illegal as being a
   violation of their
   rights to a fair hearing within a reasonable time;

   
   

3. declaring
   as illegal the refusal of the prison officers to permit awaiting
   trial prisoners their normal visits by civilian from
   outside.

   
   

Mr.
Phoofolo testified to the founding affidavit in support of the
application as president of the appellant. He said he was concerned

that "prisoners and victims of crime were being denied justice
and the prisoners' constitutional rights were being violated".

He also annexed two affidavits by the wife, one Limakatso Chaka, of
an awaiting trial prisoner and by the mother, one 'Mamotuba

Lerotholi, of another awaiting trial prisoner to say that they were
being denied access to their relatives by the prison

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officers
and that they were concerned about the prisoners' welfare.

The
matter came before Maqutu J. in the High Court on 30th May, 1994 who
mero motu added the last mentioned two deponents as parties
to the
proceedings as second and third applicants respectively. The learned
judge on the same day dismissed the application of
the Lesotho Human
Rights Alert Group, whom he had designated as first applicant, with
costs. He reserved judgment on the application
of the second and
third applicants i.e. the two relatives whom he had mero motu found
as applicants to 14th June, 1994 stating
that he would also then give
his reasons for dismissing the first applicant's application. He also
dismissed with costs an application
by respondents that the first
applicant provides security for costs.

The first
applicant now comes on appeal to this court against the dismissal of
its application. There is no cross appeal in regard
to the security
for costs application and I need say no more about it.

As to the
so-called applications by second and third applicants, the learned
judge made the following finding:

"Events have since moved quickly towards the resolution of the
strikes. "The police

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strike ended on the 1st June, 1994. The prison warders' strike ended
two days later. There is, therefore, no need to pursue the
matter
further .... The declaratory order which is impliedly sought by
second and third respondent (sic, the learned judge obviously
meaning
second and third applicants) is refused because it is no more
necessary. There is no order as to costs in respect of this
portion
of the application."

I have
grave misgivings about the joinder of the two relatives as applicants
mero motu by the learned judge. There was no application
by them to
be joined, nor does it appear anywhere on the record that they were
consulted about being joined. It also does not appear
that they
acquiesced in being joined. The learned judge's' reasoning for
joining them reads as follows:

"The second and third applicants as close relatives had in my
view a title to sue and a specific interest of their own in
what was
happening to the prisoners and because of their right to have access
to the detainees, therefore they were joined mero
motu by the Court
as respondents (The learned judge obviously meant "as
applicants"). There was no point in dismissing
this application
because it had been brought by the wrong person only to have it
brought, within hours by second and third respondents
(again, the
learned judge obviously meant "applicants")

It may
well be necessary to join parties as defendants where the court's
orders may affect them or their rights but the position
is different
in regard to plaintiffs and applicants. The joining of a party
carries far-reaching consequences for such party. It
may involve him
in the protraction of the proceedings

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due to
his having been joined, with consequent costs, it may involve his
having to bring further affidavits in motion proceedings
or further
evidence in a trial and, always, it involves him in the risk of
having to face an order as to costs. In the circumstances,
unless the
party applies to be joined or, with full appreciation for the
consequences he may face, agrees to be joined, a court
should be
hesitant mero motu join any party to such proceedings.

I turn
then to this appeal. The learned judge delivered a long (39 typed
page), wide ranging judgment in which he philosophised
on a variety
of issues which had, in the main, only peripheral relevance to the
issues before him. The reason for his dismissal
of the first
applicant's application is, however, the short and simple one of a
lack of locus standi on the part of the applicant
(as I shall for
convenience herein refer to the Lesotho Human Rights Alert Group) to
bring the application it did. This is also
the sole ground of appeal,
which reads as follows:

"The learned judge a quo misdirected himself by deciding that
the appellant has no locus standi in judicio to institute the

proceedings on behalf of the prisoners, particularly in view of the
fact that they had no access to relatives or lawyers for assistance."

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In my
view, the learned judge was quite correct. My reasons for so
concluding are these

The
applicant in the court a quo was established as a "neutral
non-partisan body" with objectives which may be summarised
as
the monitoring, promoting, preserving and protecting of human rights
standards in Lesotho. One of the powers of its Executive
Board as set
out in its constitution was to institute, on behalf of and/or defend
legal proceedings against the Group and its members,
or any other
individual whose human rights have been violated. It was in terms of
this latter power that it sought to bring its
application on behalf
of the prisoners. It is common cause that none of the prisoners was a
member of the applicant.

It is
well-recognised that the Roman Law "actio popularis" became
obsolete in Holland more than four centuries ago, having
not been
recognised since 1578 as part of the Roman-Dutch Law, which is the
common law of Lesotho as it is in South Africa. In
South Africa from
as far back as 1910 it has been held that the right of a private
person, or association of persons, is limited
to prosecuting actions
in his or its own interest and he or it has no title to institute
them in the interest of the public. (see
Dalrymple v. Colonial
Treasurer 1910 T.S. 372; Wood

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and
Others v. Ondangwa Tribal Authority and Another 1975(2) S.A. 294 at
305F - 306G; Ahmadiyya Anjuman Ishaati-Islam Lahore (South
Africa)
and Another v. Muslim Judicial Council (Cape) and Others 1983(4) S.A.
850(C). In an application de libero homine exhibendo.
however, which
is part of the Roman-Dutch Law, the South African courts have held
that, where the liberty of a person is at stake,
the locus standi of
a person who brings an application or action on behalf of a detained
person should not be narrowly construed
but, on the contrary, should
be widely construed because the illegal deprivation of liberty is a
threat to the very foundation
of a society based on law and order
(see Wood's case supra at 310F - G). Persons other than the detainee
could thus bring an action
for his release on the detainee's behalf.

The
applicant would be allowed to act on behalf of the detained person
where he could satisfy the court that the detained person
was not in
a position to make Che application himself. The Court would also have
to be satisfied that the detained person would
have made the
application himself if it had been in his power to do so. In the
present case I will accept, without so deciding
that those
requirements have been met. It is, however, only the exceptional case
where the liberty of an individual is involved,
that the general rule
is relaxed to allow an action to be

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brought
by one person who has no direct and substantial interest in the
litigation on behalf of another (see Wood's case supra;
AAIL v.
Muslim Judicial Council supra at 864 F). In the present case the
prisoners were not being unlawfully detained nor is this
an instance
where the liberty of the individuals were involved save in the sense
that they were not being timeously brought to
the courts for their
trials to be heard. I am, however, prepared to accept that their
rights to a timeous trial, to see visitors
and to be allowed to work
were being violated and that the question of the locus standi of
those who might seek on their behalf,
to protect those rights should
not be narrowly construed. It is, however, necessary in my view that
such applicants must have a
link or relationship with the person
concerned, which may be that of a relative or personal friend or
arise by reason of what was
described by Rumpff C.J in Wood's case at
312H, as "an agreement express or implied, relating to a matter
of common interest.
I am thinking here of a partnership, or a
society, or a church, or a political party. Any member of such a
society or body would,
in my view, have an interest in the personal
liberty of a co-member" .

The
present applicant's objectives are without doubt praiseworthy and,
having regard to the

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exigencies
of modern-day society, it fulfils a very necessary function within
chat society. Its desire to act on behalf of the prisoners
was also
undoubtedly laudable. To extend to a body such as the applicant, the
right to bring actions on behalf of persons unconnected
with it and
who have no link direct or indirect with it would, however, in my
view, in law be extending the exceptional relaxation
of the general
rule to the liberty of an individual beyond what was intended in
regard to such matters in Wood's case. If would
be akin to a revival
of the "actio popularis" which,as I have said, has been no
part of our law for over four centuries.
I, therefore, agree with
Magutu J. that the applicant did not have the necessary locus standi
to bring the application it did and
that he was correct in dismissing
it with costs.

It
follows that this appeal fails and is dismissed, with costs.

P.H.
TEBBUTT

ACTING
JUDGE OF APPEAL

I agree :

(J.H.
STEYN

ACTING
PRESIDENT.

I agree:

G.P.C.
KOTZE

JUDGE OF
APPEAL

Delivered
at Maseru, this "28th day of July, 1994.