CIV/APN/99/85 IN THE HIGH
COURT OF LESOTHO
In the Application of:
THE HON. THE PRIME MINISTER 1st
RespondentATTORNEY-GENERAL 2nd Respondent
Delivered by the Hon. Acting Mr. Justice D. Levy on
the 6th day of May, 1985.
By reason of the great importance and urgency of this
application, I have decided not to make reference to the numerous
quoted to me by Mr. Fariam in his eloquent and most able
address on constitutional law. I hope I have not lost sight of the
adumbrated by him.
This application concerns the appointment of Mr. Semapo
Peete as an acting Judge of the High Court of Lesotho which
made by the King of Lesotho acting on the advice of
the Prime Minister. I assume that in so doing, the King purported to
the powers conferred upon him by Section 3(1) of the High
Court Act 5 of 1978 nor am I aware of any other statutory authority
make such an appointment. Mr. Fariam for the applicant has
challenged this appointment on the grounds that it was made beyond
powers vested in the King by the pro-vions of the High Court Act
of 1978 and he refers to Section 3 (1) in terms of which it
the King who shall appoint the Chief Justice and Judges acting in
accordance with the advice of the Prime Minister, while
of Section 3(4), it is the Prime Minister who shall for the reasons
set out in that Section appoint acting judges.
2 Sub-section 5
Sub-section 5 of Section 3 also provides that such
acting Judge shall so act for the period of his appointment or if no
is specified,until his appointment is revoked by the
Prime Minister. There would therefore appear to be no explicit
in the King to make or revoke an acting appointment
and that it is only the Prime Minister who may so appoint an acting
revoke such an appointment. Mr. Farlam has argued that the
prerogative of the throne in the Kingdom of Lesotho has been defined
the High Court Act in so far as it affects the appointment of
Judges and acting Judges of the Courts of the Kingdom and that once
that is so,then the King may not fall back upon his common law
authority whatever its terms may have been, to appoint acting Judges.
I am of the view, however, that an authority vested with
power to appoint a Judge may also appoint a Judge to fill a somewhat
office,that is,to act for a limited period or for an
I hold the view that the power to appoint a Judge to
fulfil the judicial functions required of a Judge, must carry with it
implication, the power to appoint a Judge to fulfil the
same functions for a limited or indefinite period. I find support for
view in the consideration that the wording of Section 3(1)
empowering the King to appoint Judges is in peremptory form,
the wording of Section 3(4) empowering the Prime Minister to
appoint acting Judges is permissive only. It follows that the Prime
Minister's authority to appoint acting Judges is only supplementary
or additional to the King's power to appoint an acting Judge.
The consequences of another interpretation of the
High Court Act would of course, carry with it the
implication that my own appointment, which is in similar terms
to that of Mr.
Peete, has been invalidly made, and that all these
proceedings before me would, therefore become nullity.
In the view I form, while I am not anxious to protect
myself in my own office, I nevertheless find that
3/ Mr. Peete's .........
Mr. Peete's appointment was validiy made by the King.
I cannot agree that the High Court Act has put the
authority of the Throne to appoint Judges and acting Judges within
the narrow confines
of Mr. Farlam's interpretation of the Act, that
is, that only the King may appoint Judges and only the Prime Minister
acting Judges. I am constrained to the view that the King
may also appoint acting Judges and that this is not the sole
of the Prime Minister. I think it must be regarded as an
incident of the powers of the King to appoint judges that he may also
acting Judges. I accordingly find that the appointment of Mr.
Peete as an acting Judge was properly and validly made.
I turn now to consider the allegation that Mr. Peete's
permanent employment in the Government service in the Law Office
unfit for an acting judicial officer. It has not been
suggested that Mr. Peete is not qualified to act as a Judge. On the
the applicant has hastened to assure the respondents and
this Court, and I quote from the applicant's memorandum addressed to
Prime Minister, the first respondent, that :
"Mr. Semapo 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".
But relying upon the provisions of Section 16(6) of the
Human Rights Act No. 24 of 1983, which states in its relevant
form that "The State shall have the duty to guarantee the
independence of the Courts", the
applicant contends that Peete's
appointment as an acting Judge is a violation of that Act and it
seeks a declaretur to that effect
from this Court.
The first question that arises and one that has been
adequately dealt with by Mr. Farlam is the justi-ciability of this
of the Human Rights Act. I am prepared to
accept without deciding that the Act is justiciable at the instance
of concerned individuals and that the
Law Society as applicant in
this matter had a proper interest in bringing these proceedings.
4/ It remains, ......
It remains, therefore, to consider the grounds upon
which the applicant relies for the conclusion that Mr. Peete's
a violation of the Human Rights Act. These arise from
the fact that at the time of his appointment as an Acting Judge,
was and remains a member of the staff of the Director of
Public Prosecutions and of the Solicitor-General who are the agents
for the Government of Lesotho.
The applicant infers from this fact that Mr. Peete
remains under the authority and control of the Director of Public
and of the Solicitor-General. This is an unjustifiable
While no doubt at the end of his appointment, Mr. Peete
may well return to his employment on the staff of the Director of
and of the Solicitor-General, the suggestion that
while on the Bench,he will be subject to or that he would be asked to
if asked that he would yield to the directions of the
Director of Public Prosecutions and/or of the Solicitor-General is
unjustifiable and unwarranted but a direct contradiction of
the applicant's own testimonial to Mr. Peete as a practitioner
the greatest integrity and dedication.
It is my understanding of the motivation of a Government
in appointing its Judges and acting Judges, that they are chosen not
for their ability in the practice of Law but also and equally
importantly because they are persons whose integrity is above
To suggest of such a person as Mr. Peete, therefore,
that he might well in the execution of his functions as a Judge
accept the directions
of the Director of Public Prosecutions or of
the Attorney-General is indeed an unwarranted attack on his
character and integrity.
It has also been suggested that since Mr. Peete had
never been a member of any Judicial Bench anywhere, and that his only
in Law has been gained in his present employment, that
this also would make him the more amenable to such influence as the
of Public Prosecutions or the Attorney General might
wish to subject him to. Apart from Mr. Peete, this amounts to be an
5/ on the integrity
on the integrity of the persons holding these offices
which I regard as an unwarranted denigeration of their
characters and integrity,for it contains the broad inference
Peete's seniors in those Departments have and would continue
to exercise their authority over him, while he acts as a Judge in
that concern only the litigants before him to the improper
advantage of the Government of Lesotho as a potential litigant
any such disputes.
By the oath of office which Mr. Peete swore before the
Chief Justice, he undertook to administer justice to all in
the Laws of Lesotho without fear, favour or
prejudice. If applicant's testimony to Mr. Peete's character is
justified then there
can be no reasonable grounds for fear that he
might act in breach of his oath or in such a way as to threaten or
undermine the independence
of the Courts. On the contrary, of such a
man, we can expect that he will do all in his power to uphold it, and
if Mr. Peete is somewhat
lacking in experience, then we can expect
that he will nevertheless learn to cope adequately with his work on
It has also been argued before me that not only should
justice be done but that it also should manifestly be seen to be
argument was advanced in the applicant's memorandum to the
Prime Minister before the launching of these proceedings and it was
then with some force perhaps that in matters where the
Government of Lesotho or the Crown are litigants even if only in the
sense then justice would not palpably be seen to be done where
the matter is being tried before an acting judge who, it might almost
be said has been seconded to the bench in a temporary capacity. This
is the expression of a fear that Mr. Peete will possibly defer
administration of Justice to the interests of his employer in breach
of his oath. As a reasonable man, I would rather believe
that Mr. Peete will not be subservient to the lesser interests
of the Crown and the Government and that he will pay
to their and his true interests which always are to administer
justice to all without fear, favour or
6/ or prejudice. ........
or prejudice. I prefer to believe also that both the
Director of Public Prosecutions and the Attorney-General would expect
of their offices to be protected by Mr. Peete only
where justice demands it.
Applicant's counsel has conceded that if Mr. Peete had
been appointed as an acting Judge for, say two months that this
in the term of his appointment would be sufficient to give
him such independence in the eyes of public and of the applicant, as
lead them away from any thought that he is not acting
independently in his office on the bench.
To me the difference between such an appointment and Mr.
Peete's present appointment is so small that 1 cannot see that any
can be drawn from Mr. Peete's actual appointment that could
not be drawn from such an hypothetical appointment. And, if not from
the latter, then it cannot be drawn from the terms of the present
To say that Mr. Peete's independence would be visibly
affected by an indefinite appointment and not by an appointment
fixed period, is to state a difference which has no
existence either in appearance or content.
Mr. Peete no doubt will return to his employment in the
Law Office on the termination of his appointment as an acting Judge,
on the bench as an acting Judge, he will have laid aside
the duties and responsibilities of his employment. And even if
an ambitious man he would know that his ambitions will not be
advanced by any untoward care or improper concern for the interests
of the Crown or of the Government. In my view, no reasonable man
would have such thoughts in his mind, and he would be satisfied
am that Mr. Peete will find for the State and for the Government and
for the Crown only where justice demands it.
There might be some support to be found for the
respondents in the provisions of Section 14 of the High Court Act,
which exempt acting
Judges from the prohibition against holding other
offices of profit. I did not find
7/ it necessary
it necessary to consider this aspect in view of my
judgment as I have already expressed it.
For these reasons, I dismiss the application.
There has been notice of an application given by the
respondents of their intention to seek atorney and client costs
against the applicant.
I am satisfied that the Applicant has been
motivated by the unselfish wish to rectify a situation which it bona
fide believes to be contrary to the best interest of the
public and of the courts and I am satisfied that bringing this
in no way merits any mark of displeasure by the
The application is accordingly dismissed with costs.
6th May, 1985.
for Applicant : Mr. Farlam, For Respondent : Mr.
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