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CIV\APN\256\90 IN THE HIGH COURT OF
LESOTHO

In the matter between:

NTAI ABRAHAM MONAHENG Applicant

and

PERMANENT SECRETARY HEALTH 1st Respondent

ATTORNEY
GENERAL 2nd Respondent

JUDGMENT

Delivered by the Honourable Mr. Justice J.L. Kheola on
the 17th day of September. 1991

This is an application for an order directing the first
respondent to resume payment of applicant's salary including arrears
as the
interdiction dated the 5th January, 1990 has long lapsed and
the ground for its imposition has fallen away and costs.

On the 5th January, 1990 the first applicant interdicted
applicant on the ground that applicant had been criminally charged
with the
crime of fraud in CR 1130\89. On the 1st June, 1990 CR
1130\89 was struck off the roll. The applicant alleges that CR
1130\89 is
therefore no long pending. He was interdicted without pay
and as long as he remains in Government service he is forbidden by
the
Public Service Rules from obtaining an alternative

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employment.

In terms of Rule 8 (10) (c) of the High Court Rules 1990
the respondents have raised a question of law to the effect that
there is
no procedure under our Criminal Procedure for striking a
criminal matter off the roll. It was submitted that there is still a
case
pending in court against the applicant.

In Nkafane Theko v. Permanent Secretary (Ministry of
Health) and others, CIV\APN\215\90 (unreported) dated the 5th
November, 1990,
Mr, Putsoane. counsel for the respondents, raised the
same question of law which was upheld by this Court. I held that the
practice
of striking off a criminal case from the roll is not
sanctioned by any provision of our Criminal Procedure and Evidence
Act 1981.
In fact it seems to be in direct conflict with the
provisions of section 278 which read as follows:

"(1) If a prosecutor -

1. 
   in the case of a trial by the High Court
   having
   given notice of trial, does not
   appear to prosecute the
   indictment against
   the accused before the close of the session
   of
   the Court; or

   
   

2. 
   in the case of a trial by a subordinate court,
   does
   not appear on the court day appointed for
   the trial, the accused
   may move the court to
   discharge him and the charge may be
   dismissed.

   
   

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and where the accused or any other person on his behalf
has been bound by recognizance for the appearance of the accused to
take his
trial, the accused may further move the court to discharge
the recognizance.

2. 
   Where the charge is at the instance of a private
   prose­
   cutor the accused may move the court that the
   private
   prosecutor and his sureties be called on
   their
   recognizance, and, in default of his appearance, that
   the
   recognizance be estreated, and for an order
   directing the private
   prosecutor to pay the coats
   incurred by the accused in preparing
   for his defence.

   
   

3. 
   Nothing in this section shall deprive the Director
   of
   Public Prosecutions or the public prosecutor with
   his
   authority or on his behalf, of the right of withdrawing
   any
   charge at any time before the accused has pleaded,
   and framing a
   fresh charge for hearing before the same
   or any other competent
   court."

   
   

I was told that on the 1st June, 1990 when CR 1130\89
was struck off the roll the applicant and the public prosecutor were
present.
If the latter was unable to proceed on unsound or flimsy
reasons the applicant was entitled to apply that he be discharged and
that
the charge against him be dismissed. If the application was
refused the applicant would have to be remanded for a period not
exceeding
thirty days in terms of section 106 (2) of the

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Criminal Procedure and Evidence Act 1981. If the
application were granted the applicant would be discharged and the
charge against
him would be dismissed.

In the instant case the case was struck off the roll but
the charge against the applicant was not dismissed. I am of the
opinion that
the charge against the applicant is still pending; in
other words no final decision was made; it is a case awaiting
decision or settlement.

I agree with Mr. Putsoane that the procedure of
striking off a criminal case from the roll is not sanctioned by our
Criminal Procedure and Evidence Act 1981.
I do not understand how a
criminal case in which the public prosecutor and the accused are
present can be struck off the roll by
consent when the law is very
clear that a criminal case cannot be postponed sine die.

I am of the opinion that the charge against the
applicant is still pending. It was never dismissed in terms of the
law.

In the result the application is dismissed. There will
be no order as to costs. The applicant was interdicted without pay in
January,
1990. The Rules under which he was interdicted provide that
he may not seek alternative employment while under interdiction. It
would
be unfair and unjust to hold that costs must follow the result.
The State has forced this applicant to

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remain unemployed for more than one year and eight
months.

J.L. Kheola

JUDGE

17th September, 1991. For Applicant - Mr. Maqutu
For
Respondents - Mr. Putsoane.