Constitutional litigation – Fundamental human rights – Criminal procedure – Right of accused to a fair trial in terms of section 12 (1) (c) of the Constitution of Lesotho 1993 – Right of the accused to be given access to prosecution witness statements prior to trial – Where there is reasonable risk that disclosure might lead to injury or intimidation of witness or otherwise impede proper ends of justice, Court to exercise proper discretion in balancing accused’s needs for a fair trial against legitimate interests of State – Timing and manner of disclosure – Principle of constitutional avoidance and principle of adjudicative subsidiarity encapsulated in the proviso to section 22(2) of the Constitution discussed.
Constitutional Case No. 05/2018
IN THE HIGH COURT OF LESOTHO
(Exercising Constitutional Jurisdiction)
In the matter between:
PITSO RAMOEPANE APPLICANT
DIRECTOR OF PUBLIC PROSECUTIONS 1ST RESPONDENT
THE ATTORNEY GENERAL 2ND RESPONDENT
Coram: The Honourable Justice M. Mahase
The Honourable Justice L. Chaka-Makhooane
The Honourable Justice K. L. Moahloli (a.i)
Heard on: 3 May 2018
Delivered on: ..June 2018
Director of Public Prosecutions & Another v Lebona, LAC (1995-1999) 493
Juma & Others v Attorney – General, (2003) AHRLR 179 (KeHC 2003)
Molapo v Director of Public Prosecutions, 1997-1998 LLR 197 (HC)
Minister of Education v Harris, 2001 (4) SA 1297 (CC)
Motsepe v Commissioner of Inland Revenue, 1997 (2) SA 898 (CC)
Motshwane & Another v The State, 2002(2) BLR 368 (HC)
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs, 2000 (2) SA1 (CC)
National Director of Public Prosecutions v King, (86/09)  ZASCA 8 (8 March 2010)
Park-Ross v Director, Office of Serious Economic Offences, 1995 (2) SA 148 (CPD)
S v Kandovasu, (SA4/96)  NASC 2 (10 February 1998)
S v Mhlungu, 1995(3) SA867 (CC)
S v Nassar, 1995 (2) SA 82 (Nm HC)
S v Scholtz, 1996 (27 SACR 426 (Nm S)
S v Smile & Another, 1998 (1) SACR 688 (SCA)
S v Vermaas, S v Du Plessis, 1995 (3) SA292 (CC)
Shabalala & Others v Attorney – General of Transvaal & Another, 1996 (1) SA 725 (CC)
The President of the Court of Appeal v The Prime Minister & Others,  LSCA1
Zantsi v Council of State, Ciskei, 1995 (4) SA615 (CC)
Statutes referred to:
Constitutional Litigation Rules 2000 [LN 194 of 2000)
The Constitution of Lesotho 1993
Books and articles consulted:
American Bar Association, ABA Standards for Criminal Justice Discovery and Trial by Jury. (3ed. 1996)
Sharon Fleming, 1983, “Defendant Access to Prosecution Witness Statements in Federal and State Criminal Cases,” Vol.61, Iss.2, Wash.U.L.Q. 471-502 (available at: hhtp://openscholarship.wust.edu/law_lawreview/vol61/iss2/5)
Moahloli AJ (Mahase and Chaka-Makhooane JJ concurring)
 This is an application brought on an urgent basis for an order:
“1. Dispensing with the forms and service provided for in the rules of Court on account of urgency;
2. Giving directives as to how this matter may be disposed of urgently;
3. Declaring that the decision of the Director of Public Prosecutions to withhold from the Applicant, witnesses’ statements and other contents of the docket relevant to the prosecution’s case against the Applicant in CRI/T/MSU/0711/17, until the date of trial in CRI/T/MSU/0711/17 has been allocated, violates the Applicant’s right to a fair trial and is therefore unconstitutional.
4. Directing the Director of Public Prosecutions to furnish the Applicant or his legal representatives with witnesses’ statements and other contents of the docket relevant to the prosecution’s case against the Applicant within seven days of the order of Court in this Application.
5. Directing the Director of Public Prosecutions to make available to the Applicant and or his legal representatives a print out of access cards and finger print records of people who entered the Ratjomose Barracks Command Block between 8:00 a.m. and 12:00 noon on 5th September, 2017.
6. Directing the Respondents to pay the costs of this application including the costs of two counsel.
7. That prayers 1 and 2 operate with immediate effect as interim orders of Court.”
 The 1st Respondent opposes the application, and raises a point in limine that this Court lacks jurisdiction to hear the matter in terms of section 22 of the Constitution in so far as the Applicant ought to have approached either the remanding court or the High Court sitting in its normal jurisdiction for the relief sought, without encumbering this Court.
BACKGROUND TO THE DISPUTE
 The Applicant, Pitso Ramoepane, is a member of the Lesotho Defence Force (“LDF”) holding the rank of Major. 1st Respondent is cited in his official capacity as Director of Public Prosecutions (“DPP”) in Lesotho. 2nd Respondent is cited herein in his capacity as the representative of the State in civil matters.
 On 5 September 2017, the late Commander of the LDF, Lieutenant General Khoantle Motšomotšo, was brutally shot dead at Ratjomose Barracks in Maseru. On the same day Applicant was arrested at Mokoanyane Barracks in connection with the killing.
 On 14 September, Applicant was committed for trial by the Maseru Magistrate Court [CRI/T/MSU/0711/17], charged with the murder of the late Commander Motšomotšo, as per the DPP’s Directive Ref. No. L/DPP/17/585 dated 12 September 2017. Applicant has been remanded on numerous occasions ever since.
 On 16 October 2017 the Applicant, per CRI/T/MSU/0798/17, was before the Maseru Magistrates Court joined with five others in eleven charges of attempt to commit murder (contravening section 22(1) of the Penal Code).
 Applicant has also been served with summons in CM/T/03/17 to appear before the Court Martial with two others, on charges of mutiny and related offences. This case and CRI/T/MSU/0798/17 are not directly relevant to the present application.
 On 10 January 2018 Applicants’ attorneys wrote to the DPP, demanding “witness statements and any other relevant contents of the docket that will be produced during the trial of CRI/MSU/0711/17”. They added that they required to be furnished with these documents as a matter of urgency in order to allow their client to prepare his defence.
 The DPP responded as follows on 17 January 2018:
“The prosecution notes with concern the needs of your client to have fair prosecution for[sic] the trial, but also deem it [sic] to consult with investigating officers and witnesses on potential compromise that such an early release may have on well-being of crown witnesses. More so, given the background where perpetrators are security agents.
We promise that as soon as the Court grants us with [sic] the dates of trial, we shall, without hesitation provide your office with the witnesses’ statements.”
 The Applicant’s attorneys were not satisfied with the DPP’s response, and on 22 January 2018 they retorted as follows:
“We are surprised at your suggestion that it can ever be too early for an accused person facing such a serious offence as in the above case, to start preparing for his defence.
The suggestion that the statements will be provided “as soon as the court grants … the dates of trial” is unacceptable and without any lawful justification. It is surely not within the powers and rights of the prosecution to determine when it is proper and suitable for an accused person to begin preparing for his defence.
You are no doubt aware that the accused in this matter is in custody. This makes consultation with him cumbersome – we can only meet him for a limited time per consultation session and on days that we do not have other engagements to attend to. You will, in this regard, also be aware of the practice at the Maseru Central Correctional Institution not to allow awaiting trial inmates to have consultations with their lawyers over weekends, this means we can only see client during working days.
We do not understand how the release of witnesses’ statements would “compromise…[the] wellbeing of crown witnesses’, especially when the accused person remains in custody. We observe that when the Crown opposed the accused’s bail, one of its reasons for doing so was to prevent him from interfering with Crown witnesses.
We are in the circumstances writing to demand that you furnish us with the witnesses’ statements and other relevant contents of the docket within seven (7) days from the date of this letter, failing which our instructions are to approach the courts of law for an appropriate remedy.”
 And on 7 February 2018 when the DPP had failed to meet the ultimatum, Applicant lodged this application.
 At the first hearing on 26 March 2018, the Court directed the parties to file supplementary heads of argument addressing the following specific issues:
(a) Whether the application is indeed urgent;
(b) Whether this court has jurisdiction to entertain this application;
(c) Whether this is not the type of matter where this Court must decline to exercise its powers under section 22 of the Constitution because adequate means of redress for the contravention alleged are or have been available to the Applicant under any other law, and
(d) Whether the granting of prayer 5 in the Notice of Motion would not amount to a usurpation of the DPP’s powers.
 The parties duly filed supplementary heads of argument as directed, and comprehensive oral submissions were heard on 3 May 2018.
 Without specifically dealing with the parties’ submissions on urgency, we have decided that, in view of the need to settle the law relating to the issue raised in this application, it is in the interests of justice to abridge the times prescribed and to accelerate the hearing.
 Although we are convinced that applications of this nature must be brought before the trial court, which is better situated and equipped to evaluate the merits of the application, it is prudent for this Court to hear the application in this particular instance in order to settle the constitutional issue in dispute for the guidance of trial courts.
On applicability of proviso to section 22(2)
 Similarly, we are of the view that it is only once the constitutional issue has been settled that it might be appropriate to apply the proviso to section 22(2) of the Constitution in future similar litigation.
THE MAIN ISSUE
 It is common cause that after the decision in Molapo v DPP, and comparable persuasive judgments in other jurisdictions, the common law blanket docket privilege no longer holds sway in our law. 1st Respondent has conceded as much. The only remaining issue for determination is whether the DPP’s reasons for withholding or delaying the disclosures demanded by the Applicant constitutes a violation of the Applicant’s right to a fair trial and are therefore unconstitutional.
 The reasons for delaying disclosure may be gleaned from paragraph 11 of the Answering Affidavit, where the DPP deposes:
“(a)… my decision in terms of annexure E is not unreasonable, insupportable in law and unconstitutional in violation of the Applicant’s right to a fair trial. Despite Applicant’s request being premature should this honourable court hold otherwise the Applicant’s right to witness statements and contents of the police docket is not without limitations and in this regard my response is very clear that the release of witness statements and the contents of the police docket may compromise the ends of justice. In this regard Applicant being a soldier and disclosure of certain witnesses who some of them are accomplices and are still within the army may be an intimidating factor to those witnesses.
(b) To further elucidate the events accused is charged with took place when the command of Lesotho Defence Force was under Lt. General Kamoli [sic] and there was a division in the army whereby there were other members of the army that supported the then late Brigadier Mahao this division led to the safety and security controversies which lead to late Brigadier Mahao’s death and the death of other nationals which issues are now in the public interest. Despite the cleansing process that is been undertaken now within the army former Lt. General Kamoli still holds vast support and the witnesses against this accused are members of the army. It necessarily follows that if these witnesses are revealed to the Applicant without placing them in proper protective custody they may be intimidated because Applicant has access to his lawyers and also family members whom he may disclose the identity of those people to them and pursue intimidation tactics directly or indirectly.
(c) In conclusion in order to protect the identity of these witnesses, informants and in the public interest to avoid endangering them it is not in the best interest of justice to release this police docket to the Applicant and or his lawyers. On the other hand, the request to be given footage to the CCTV at this stage is bound to disclose police techniques which may also compromise and defeat the ends of justice. So until I have secured all these aspects of my concern Applicant is not entitled to the police docket.”
 In his Founding Affidavit at paragraphs 13 to 14, Applicant motivates his demand for immediate disclosure as follows:
I verily aver that the first Respondent’s decision is both unreasonable, insupportable in law and unconstitutional in that it violates my right to a fair trial as it obstructs my attempts to prepare for my trial.
14.1 I verily aver that it is only proper that I be furnished with the contents of the docket as early as possible so as to afford me sufficient time to prepare. I also need the CCTV Camera footage and record of those who accessed entrance to the Ratjomose Command Block on the day I am alleged to have murdered the Commander to prepare for my defence in the matter. The Commander was killed in that place which has controlled access and is under CCTV camera surveillance.
14.2 I should state that I have already instructed my lawyers to seek expert assistance in analysing the CCTV footage and entrance access information. All that cannot be done at the pace determined by the first Respondent if I am to have a fair trial in CRI/T/MSU/0711/17.”
 And Applicant counters the DPP’s arguments for delayed or deferred disclosure as follows in paragraphs 12 to 14 of his Replying Affidavit;
“AD PARAGRAPH 11 (a) THEREOF:
12.1 I deny the contents hereof and reiterate the contents of paragraph 13 and 14 of my founding affidavit. I verily aver that I have no interest in intimidating or harming anyone. What I have interest in is to know what is going to be said against me at the trial so that I may not only properly instruct my defence Counsel, but also so that I may start looking for evidence and or witnesses to counter what would be said against. To deny me such information now is clearly calculated at denying me a fair trial.
12.2 For the information of this Honourable Court my Court Martial case was set down for trial on 8, 11 and 12 December, 2017 as appears on the annexed Notice of Set Down marked “2”. I have been served with witness statements in that matter without any hesitation on the part of the prosecuting counsel in the matter. I have already stated that the Court Martial case is based on the same set of facts as in the present matter. It accordingly boggles the mind how the supply of witnesses’ statements in the Court Martial Case was done without any hesitation and yet Deponent seeks to make a huge issue out of it.
AD PARAGRAPH 11 (b) THEREOF:
13.1 I deny the contents hereof and reiterate the contents of paragraph 13 and 14 of my founding affidavit. Clearly Deponent has not even read the docket she so vehemently wishes to deny me access to. I say so because if she had, she would know that the events with which I am charged, took place long after Lieutenant General Kamoli relinquished the command of the Lesotho Defence Force to the late Lieutenant General Motsomotso with whose murder I stand charged.
13.2 I am advised and verily believe that it is unprofessional and unethical of Deponent to imply that my lawyers would be involved in attempts to defeat the ends of justice. I reiterate that I have no interest intimidating anyone but merely seek to have the means of preparing for my defence.
AD PARAGRAPH 11(C):
I deny the contents hereof and reiterate the contents of paragraph 13 and 14 of my founding affidavit. I also reiterate the contents of my paragraph 13 above. I verily aver that I have no interest in any police techniques. I am interested in the CCTV footage taken at the scene of the offence with which I stand charged, that has absolutely nothing with any police techniques deponent might have in mind.”
ANALYSIS OF ARGUMENT
 As stated in paragraph  above, this case is essentially about the constitutionality of DPP’s intended timing of the disclosure (i.e. prosecutorial relinquishment of information to the accused) and discovery (i.e. the receipt of information by the accused) in the particular instance.
The proviso to section 22(2) of the Constitution
 This proviso encapsulates what is known as the principle of constitutional avoidance, which requires “that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed”. In other words the principle requires the court to first try and resolve a dispute by applying ordinary legal principles before applying the chapter on Fundamental Human Rights and Freedoms contained in our Constitution directly to the dispute.
 In my view in areas where the law relating to pre-trial discovery in criminal disputes has been settled by our superior courts, the trial court is the appropriate court to approach for the accused person who seeks to enforce his rights. The mere fact that such rights are also entrenched in the constitution does not mean that this Court must always be the one to approach. Ordinarily where an accused person is aggrieved with a prosecutorial decision about discovery and disclosure of police docket information, he must approach the trial court for review.
 This would not amount to this Court shirking its responsibility to enforce constitutionally protected rights, as suggested by Applicant’s counsel in his heads of argument. It would be an application of the principle of adjudicative subsidiarity (whereby the authority of the Constitution is “not overused to decide issues that can be disposed of by invoking specific, subordinate and non-constitutional legal norms”). The advantages of this approach are that it avoids constitutional over- adjudication and apportions authority and decision-making responsibility. I must however stress that I am fully conscious that adjudicative subsidiarity should not be applied inflexibly to compromise the supremacy of the Constitution or to stand in the way of the interests of justice.
Restrictions on disclosure
 In our law the duty to disclosure is not absolute. The courts have authority to deny, delay or otherwise condition pre-trial disclosure in criminal cases, where there is a substantial risk to a witness of physical harm or intimidation. In such instances the prosecution may move for a protective order limiting or delaying such disclosure. In crafting an appropriate protective order, the court should consider both the need to protect witnesses from risks of harm or coercion, and the accused’s need to learn the witnesses against him.
 In other words, upon a showing of cause, the court may order that specified disclosures be restricted, conditioned upon compliance with protective measures, or deferred, or make such other order as is appropriate, provided that all material and information to which a party is entitled is disclosed in sufficient time to permit the accused and/or counsel to make beneficial use of the disclosure. Protective orders enable parties to seek relief from discovery requirements where disclosures required would be harmful, inappropriate or unfair in the circumstances of a particular case.
Onus of proof
 It is for the prosecution to satisfy the court, on an objective test, that there is a reasonable risk that the disclosure of the statements might impair the concerns to which it has referred. But even if it does do so, it is still for the court to exercise a proper discretion by balancing the degree of risk (of that harm eventuating if access is permitted) against the degree of the risk that a fair trial might not ensue if such access is denied.
Timing of disclosure
 It is settled law that disclosure of the statements of prosecution witnesses should usually be made when the accused is furnished with the indictment and before he is required to plead, provided “that the court is entitled to allow the crown to defer the discharge of that duty to a later stage in the trial if the prosecution establishes on a balance of probabilities that the interests of justice require such deferment depending on the circumstances of any particular case”. In Park-Ross v Director, Office of Serious Economic Offences, the court unequivocally held that the right to police docket information only arises once the accused has been charged.
 The length of time within which the prosecutor must disclose his witnesses’ statements before trial varies from jurisdiction to jurisdiction, but the common denominator is that it is always reckoned from arraignment /filing of indictment . I have not come across any case or statute where disclosure is ordered before indictment. This is most probably because the trial court is the one best positioned and in possession of information required to make a proper examination as to whether, in the circumstances of the particular case it is appropriate to order disclosure or not, and on what conditions. As the court observed in S v Nassar, the trial Judge when resolving disclosure disputes “may require not only submissions but the inspection of statements and other documents and indeed, in some cases, viva voce evidence”, in a voir dire.
CONCLUSION AND DISPOSITION
 For the above reasons, I find –
(a) that the prosecution is not obliged to disclose the contents of the police docket, including prosecution witness statements and other relevant evidential information in the possession of the state, to the accused person (or his legal representative) prior to his/her indictment;
(b) that the trial court is the competent and appropriate court to deal with police docket disclosure and other criminal discovery disputes;
(c) that this application cannot be regarded as frivolous, vexatious or based on improper motives, as the Applicant is merely vindicating his constitutional rights on an unsettled question of law. Consequently, the general principle endorsed by our apex court, that in constitutional litigation unsuccessful litigants against the Government should not be mulcted in costs lest these litigants are discouraged from asserting their constitutional rights, unless for instance the litigant is found to have been frivolous or vexatious, applies;
(d) that parties and practitioners must always be mindful that this Court is not structurally well-suited to urgent proceedings. It sits en banc and every time at least 3 judges are required to constitute a quorum. This causes extreme strain on our already meagre pool of judges, especially in view of the ever increasing number of constitutional referrals seen in recent years. All this while the branches of Government which control the wherewithal seem oblivious of their peremptory constitutional responsibility and duty to “accord such assistance as the courts may require to enable them to protect their independence, dignity and effectiveness.”
In the result this application is dismissed, with no order as to costs.
K. L. MOAHLOLI
For Applicant: K. K. Mohau KC
For Respondents: Adv. N.S. Molapo (with Adv. L.S. Molapo)
Record: pp 44-46
Record: pp 47-50
As per proviso to section 22 (2) of the Constitution
See for example: Motshwane & Others v The State; S v Kandovasu; Juma & Others v Attorney-General; S v Nassar; Shabalala & Others v Attorney-General, Transvaal & Another
Per Kentridge AJ in S v Mhlungu at para 59. See also Motsepe v Commissioner of Inland Revenue at para21; National Coalition for Gay and Lesbian Equality v Minister of Home Affairs at para 21; Minister of Education v Harris at para 19; S v Vermaas, S v Du Plessis at 298F-299A.
Zantsi v Council of State, Ciskei at paras 5,7
Especially given our High Court’s severely strained human resources (as at least 3 Judges are required to form our constitutional panel).
Molapo v DPP, guideline 3 at p207J-208B; Shabalala & Others v Attorney General of the Transvaal & Another; Motshwane’s case; S v Scholtz
For instance the trial court may properly order non-disclosure of the witness’ name and address
Shabalala’s case at para 56; S v Smile at p693c; Molapo v DPP; S v Nassar at 107D
Molapo v DPP, guideline 4 at p208C-D
Fleming at 487-8, particularly footnote 105
The President of the Court of Appeal v The Prime Minister & Others; Director of Public Prosecutions & Another v Lebona
Section 118 (3) of the Constitution
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