C OF A
COURT OF APPEAL OF LESOTHO
OF LESOTHO DEFENCE FORCE FIRST APPELLANT
OF POLICE SECOND APPELLANT
ITILE RANTUBA FIRST RESPONDENT
LEHLOBA SECOND RESPONDENT
MAKHELE THIRD RESPONDENT
VAN DEN HEEVER JA.
husbands (hereinafter referred to as "the detainees") are
members of the Lesotho Defence Force. On 15 October,
unrest which had occurred in Lesotho, the detainees were arrested and
detained by the military authorities. It
was alleged that they had
participated in a mutiny.
denied access to their legal advisers.
to an urgent application in which their wives sought inter alia an
order directing Appellants to allow the detainees access
legal advisers, and an order that they be charged forthwith or be
application was opposed. The basis of the opposition appears from the
following passage in the affidavit of the Commander of
Defence Force ("LDF"), Lt. Gen. Makhula Mosakeng:
"I wish to state that investigations are ongoing into the
conspiracy to suborn members of the LDF to stage a mutiny and to
subvert the lawful command of the force and the lawfully established
government of this country..........................The
into what appears to be a deep-rooted conspiracy and
criminal acts perpetrated by applicants and others, are going on;
with the fact that the security situation obtaining
within the LDF and the country at large is still nebulous and
of these factors, the command cannot allow any
access to the detained persons, except by their immediate families.
Once the situation
improves, I am prepared to consider affording
legal access to detainees within the constraints of security".
November, 1998, the court a quo (Maqutu J) granted an order in the
"(a) That the Commander of the Lesotho Defence Force is directed
to see to it that Gabriel Litile Rantuba, Tholang Lehloba
Khoejane Makhele are charged with any crime with which they are
suspected within 8 days of the date of this judgment or be released
the Commander of the Lesotho Defence Force is directed to allow
Gabriel Litile Rantuba, Tholang Lehloba, and Khoejane Makhele
to an attorney or counsel forthwith to enable them to prepare their
defence even before the (long overdue) investigatory
place before him or his appointee.
First, Second, Third and Sixth Respondents pay the costs of this
now appeal to this court against these orders.
appeal raises two issues: the entitlement of a person detained under
the military law of Lesotho to access to a legal adviser;
the order directing that the detainees be charged within eight days
or released was correctly granted.
now to deal with the first issue.
law there is a right of access to a legal adviser, described as
"basic" or "fundamental" (see LeeKui
Superintendent of Labourers 1906 TS 181
at 187; R
v Slabbert 1956(4) SA 18 (T) at 21G; Brink and Others v Commissioner
of Police 1960(3) SA 65 (T); S v Seheri 1964(1) SA
29 (A) at 36; S v
Shabangu 1976(3) SA 555 (T) at 558; and see generally Selikowitz
1965/66 Acta Juridica 51 et seq).
of access for the purposes of obtaining legal advice may exist even
where a right to legal representation has been lawfully
importance is particularly marked because often it is only through
access to legal advice that a person may be able
to exercise other
of justifying any infraction of the right to legal access is on the
party who asserts an entitlement to its attenuation
(see During N.O.
v Boesak 1990(3) SA 661 (A) at 673 G-H and 674 B-C; Minister of
Justice v Hofmeyr 1993(3) SA 131 (A) at 153 D-I).
The right is
retained by a person who is incarcerated, unless it is taken away by
express statutory provision or by necessary implication
(per Innes JA
in Whittaker v Roos and Bateman 1912 AD 92 at 122-3; see also
Goldberg v Minister of Prisons 1979(1) SA 14 (A) at
39 C - E (per
Corbett JA dissenting); Mandela v Minister of Prisons 1983(1) SA 938
(A) at 957 D-F; Minister of Justice v Hofmeyr
supra, at 141 C-G).
principle was summarised in Mandela's case loc cit as follows:
"The right of access to one's legal adviser, as a corollary of
the right of
access to the courts, is a basic or fundamental common law right....
On principle a basic right must survive incarceration except
far as it is attenuated by legislation, either expressly or by
necessary implication, and the necessary consequences of
Hofmeyr's case, supra, with reference to the principle enunciated by
Innes JA in Whittakers case, supra. Hoexter JA reiterated
approach as follows at 141 C-G:
"The Innes dictum serves to negate the parsimonious and
misconceived notion that upon his admission to a gaol a prisoner is
stripped, as it were, of all his personal rights; and that
thereafter, and for so long as his detention lasts, he is able to
only those rights for which specific provision may be found in
the legislation relating to prisons, whether in the form of statutes
or regulations. The Innes dictum is that the extent and content of a
prisoner's rights are to be determined by reference not only
relevant legislation but also by reference to his inviolable
It is self-evident that the extent to which imprisonment will make
necessary inroads upon a particular prisoner's personal rights
depend upon the reason for his detention and the legislation
applicable to him. Making full allowance therefor, it seems to
nevertheless that although the Whittaker case was concerned with the
plight of await ing-trial prisoners, the Innes dictum is
general application. As a matter of logic and legal principle I am
unable to see why it should not apply to every prisoner
in a gaol
irrespective of the reason for his detention. As to principle,
subsequent to the Goldberg case the following general
stated by Jansen JA in delivering the judgment of this Court in
Mandela v Minister of Prisons
1983(1) SA 938 (A) (at 957E-F).
'On principle a basic right must survive incarceration except insofar
as it is attenuated by legislation, either expressly or by
implication, and the necessary consequences of incarceration.'
For these reasons I would respectfully express my agreement with the
general approach reflected in the residuum principle enunciated
Corbett JA in the Goldberg case."
inquiry here is accordingly not whether - as Mr Tampi (who appeared
for the Appellants) contended - the Lesotho Defence Force
("the Act") or the Regulations and Rules made thereunder,
conferred such right, but whether its operation was
expressly or necessarily by such legislation. As stated by Innes JA
in Whittaker's case supra (at 122-3):
"True, the plaintiffs' freedom has been greatly impaired by the
legal process of imprisonment; but they were entitled to demand
respect for what remained. The fact that their liberty had been
legally curtailed could afford no excuse for a further illegal
encroachment upon it Mr. Esselen contended that the plaintiffs, once
in prison, could claim only such rights as the Ordinance and
regulations conferred. But the directly opposite view is surely the
correct one. They were entitled to all their personal rights
personal dignity not temporarily taken away by law, or necessarily
inconsistent with the circumstances in which they had been
They could claim immunity from punishment in the shape of illegal
treatment, or in the guise of infringement of their liberty
warranted by the regulations or necessitated for purposes of gaol
discipline and administration" (emphasis supplied).
nothing in the Act which purports to remove the right to legal
access. Nor do the Regulations or Rules contain any express
limitation of the right.
Tampi, however, contended that the express provisions relating to
representation at court martial proceedings (or their preliminary
stages) amounted to a deprivation of the right to legal
access of a
detainee under military law. S. 95(2) of the Act provides that at all
proceedings before a court martial, the prosecution
and defence shall
be entitled to be represented by counsel. Reg. 36 of the Defence
Force (Discipline) Regulations, 1998 provides
for representation at
an enquiry by a legal practitioner at the discretion of the officer
presiding at such inquiry. Reg. 19 furthermore
"Subject to Regulation 36, no member shall be entitled to be
legally represented by an advocate, attorney or any other person
any summary trial, investigation or proceedings for the taking of a
summary of evidence held in terms of these Regulations."
these Regulations deals with a detainee's right of access to his
legal adviser. Nor is it a necessary implication of such
provision for legal representation that a detainee has lost the right
of access to a legal adviser. It would indeed be
incongruous if a
serving soldier detained and awaiting trial under military law would
be in a worse position in this regard than
a convicted prisoner
serving a sentence in a civil prison.
basis that this court might hold the right not to have been excluded
by express or necessary implication, Mr. Tampi finally
the circumstances prevailing in Maseru at the relevant time entitled
the military authorities to adopt the attitude
which they did. In
this regard he
to the passage from the affidavit of the Commander of the Lesotho
Defence Force quoted above, and to the following passage:
"The crowning events happened on the 11th September, 1998 when a
group of mutinous soldiers, heavily armed invaded the offices
senior officers and other officers and overthrew and resisted the
lawful authority in the Defence Force. Such mutineers also
the performance of any duty or service in the Defence Force. Such
criminal conduct by members of the Defence Force falls
within section 48(3) of the Act.
The mutinous elements, together with their accomplices succeeded in
illegally arresting and removing the entire officer corps from
offices. In simple language, it meant that the mutineers succeeded in
removing the entire command structure of the LDF. A
resulted from such criminal acts beggars description. There was
large-scale looting of arms and ammunition, which
is the property of
the nation. Service vehicles were vandalised with impunity and the
cost of replacing them is astronomical.
A state of anarchy prevailed in the city, because mutineers were
running wild and indulging in acts of criminal orgy with gay abandon.
In the course of the mutiny, there was a shooting, and I, the
Commander and the Brigade Commander were held at gun-point and
taken to the maximum security prison and subsequently to
Radio Lesotho where I was forced to read out a message which the
He concluded his evidence by saying that "the entire government
machinery had become paralysed".
allegations, it should be noted, were not denied by the Respondents.
these allegations amount to are two contentions. The first is that a
state of anarchy prevailed at the time the right to access
refused. The second is that, while only "immediate families"
could be granted access to the detainees forthwith,
Officer was "prepared to consider" allowing legal access
"once the situation improves", although
he was under no
legal obligation to recognise such a right.
to the first contention, Appellants did not tender any evidence that
access to a legal adviser would in any way have impacted
on internal stability.
no explanation in the appellants' affidavits for the differentiation
between family members and legal advisers. It would
appear that if
the situation, bad as it might have been, permitted visits by family
members forthwith, this differentiation was
for the reasons stated above, the Commander has misconceived the
legal position. A detainee, even under military law,
common law right to a legal adviser save to the extent that such
right has been expressly or by necessary implication
is not a matter which depends upon the conferral by statute, but
rather whether the statute attenuates it.
Commander does not possess the discretionary licence for which he
contends, namely to consider at an unspecified future time
not he will allow access to legal advisers.
one further aspect to which we should refer. This is that in support
of his argument in relation to the first issue, Mr.
that the regime created by military law was specifically removed from
the ambit of the Constitution by S.24(3)
thereof, which reads:
"In relation to any person who is a member of a disciplined
force raised under a law of Lesotho, nothing contained in or done
under the authority of the disciplinary law of that force shall be
held to be inconsistent with or in contravention of any of the
provisions of this Chapter other than sections 5, 8 and 9."
(Ss. 5, 8
and 9 do not have any bearing on the issue under consideration).
no merit in this argument. In the first place, the Constitution does
not purport to exempt the military from the operation
provisions, save to the extent specified above. In the second place,
what the court is concerned with here is the common
law right of
legal access. That right has not been removed by the Constitution.
now to deal with the second issue.
charge or release issue
for the order that the detainees were to be charged within eight days
of the date of the judgment, or released, appears
to have been the
court's conclusion that there had been unnecessary delay in the
investigation. As regards the time period specified
by the learned
judge, his reasoning was evidently as follows:
"There is nothing under the law to stop investigations from
continuing and other additional charges added after the charge
been preferred. I noted that our Section 89 of the Lesotho Defence
Act 1996 is based on Section 75 of the British Army Act
1955. In the
British one, a court-martial has to be assembled within 8 days while
in Lesotho this should be done within 14 days."
the Act provides:
"(1) The allegations against any person subject to this Act who
is under arrest shall be duly investigated without unnecessary
and as soon as may be, either proceedings shall be taken against him
or he shall be released from arrest.
any person subject to this Act, having been taken into military
custody, remains under arrest for a period longer than
without a court-martial for his trial being assembled, a special
report on the necessity for further delay shall be made
commanding officer to the Commander of the Defence Force in the
prescribed manner, and a similar report shall be made
to the like
authorities and in the like manner every 14 days until either a
court-martial is assembled or the offence is dealt
with summarily or
he is released from arrest" (emphasis supplied).
appellants contend that, regard being had to the circumstances
in Lesotho, the scale of the alleged mutiny, and the number of
persons and separate incidents involved, the investigation
necessarily preceded the commencement of court martial proceedings is
of necessity time-consuming. In addition, the scheme
of the Act, its
Regulations and Rules relating to investigations and the setting up
of a court martial are complex. (See in this
regard ss.86, 87, 89,
90, 91, 93 and 93 of the Act).
substance in the appellants' contention. The learned judge in the
court a quo appears to have attached little weight to
uncontested allegations concerning the gravity of the situation
prevailing at the tune. He wrongly held that the detainees
have been charged after an investigation of not more than 48 hours.
For this proposition he relied on s.6(3) of the Constitution.
section has no application in the present case, by virtue (as already
indicated) of the provisions of s.34(3).
learned judge also stated that:
"By any stretch of the imagination there has been an
not the correct test. The true inquiry on this issue is whether it
can be said that there has been "unnecessary delay"
investigation. The record does not establish that there has been such
delay, having regard to the
furthermore provides that proceedings must be taken or the detainee
released "as soon as maybe". The learned judge
s.89(l) had been violated, firstly without having regard to the
provisions of that section, and secondly without having
regard to the
provisions of s.89(2) which regulate the procedures to be followed
when a military detainee remains under arrest
for longer than 14 days
without a court martial being assembled.
accordingly no basis for the arbitrary determination of a period of
eight days fixed by the court a quo within which the
to be charged or released.
contention advanced by the Crown at earlier stages of the proceedings
that the jurisdiction of the courts was ousted by the legal
dispensation created by the military law read with the Constitution,
was, correctly in our view, not pursued before us. It is
well-established that a right of review by the High Court over courts
martial exists at common law (Union Government and Fisher
1918 AD 556 at 572-3, Mocke v. Minister of Defence and Others 1944
CPD 280 at 284-5; Council of Review, S.A.D.F. v Monnig
1992(3) SA 482 (A) at 487 D. See also s.119(l) of the Constitution).
In our view this right also applies in respect
proceedings to courts martial.
Kingdom of Lesotho is a democratic State governed by an enlightened
Constitution. For as long as this remains the case, the
like all other organs of State remains subject to the law as
administered by its courts.
follows that the appeal against the first order fails, and that
against the second order succeeds.
ordered as follows:
order contained in paragraph (a) of the order by Maqutu J dated 27
November 1998 is set aside.
appeal against the order in paragraph (b) of the said judgment is
agreement there is no order as to the costs of the appeal.
this 16th day of April, 1999.
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