C OF A (CIV) NO.33/98
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
COMMANDER OF LESOTHO DEFENCE FORCE FIRST APPELLANT
COMMISSIONER OF POLICE SECOND APPELLANT
ATTORNEY-GENERAL THIRD APPELLANT
AND
MANTS' ITILE RANTUBA FIRST RESPONDENT
TLALANE LEHLOBA SECOND RESPONDENT
'MAMAFA MAKHELE THIRD RESPONDENT
Held at: MASERU
Coram: STEYN P.
LEON JA.
VAN DEN HEEVER JA.
FRIEDMAN JA.
GAUNTLETT JA.
JUDGMENT
THE FULL COURT:
Respondents' husbands (hereinafter referred to as "the detainees") are members of the Lesotho Defence Force. On 15 October, 1998, following 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.
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They were denied access to their legal advisers.
This led to an urgent application in which their wives sought inter alia an order directing Appellants to allow the detainees access to their legal advisers, and an order that they be charged forthwith or be released.
The application was opposed. The basis of the opposition appears from the following passage in the affidavit of the Commander of the Lesotho 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 investigations into what appears to be a deep-rooted conspiracy and criminal acts perpetrated by applicants and others, are going on; this coupled with the fact that the security situation obtaining within the LDF and the country at large is still nebulous and fragile. Because 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".
On 2? November, 1998, the court a quo (Maqutu J) granted an order in the following terms:
"(a) That the Commander of the Lesotho Defence Force is directed to see to it that Gabriel Litile Rantuba, Tholang Lehloba and
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Khoejane Makhele are charged with any crime with which they are suspected within 8 days of the date of this judgment or be released
from custody.
That the Commander of the Lesotho Defence Force is directed to allow Gabriel Litile Rantuba, Tholang Lehloba, and Khoejane Makhele access to an attorney or counsel forthwith to enable them to prepare their defence even before the (long overdue) investigatory hearing takes place before him or his appointee.
That First, Second, Third and Sixth Respondents pay the costs of this application."
Appellants now appeal to this court against these orders.
The appeal raises two issues: the entitlement of a person detained under the military law of Lesotho to access to a legal adviser; and whether the order directing that the detainees be charged within eight days or released was correctly granted.
We turn now to deal with the first issue.
Bight of access
At common law there is a right of access to a legal adviser, described as "basic" or "fundamental" (see LeeKui Yu v Superintendent of Labourers 1906 TS 181
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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).
The right of access for the purposes of obtaining legal advice may exist even where a right to legal representation has been lawfully excluded. Its importance is particularly marked because often it is only through access to legal advice that a person may be able to exercise other rights.
The onus 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).
This 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
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access to the courts, is a basic or fundamental common law right.... On principle a basic right must survive incarceration except in so far as it is attenuated by legislation, either expressly or by necessary implication, and the necessary consequences of incarceration."
In Hofmeyr's case, supra, with reference to the principle enunciated by Innes JA in Whittakers case, supra. Hoexter JA reiterated the correct 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 assert 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 to the relevant legislation but also by reference to his inviolable common-law rights.
It is self-evident that the extent to which imprisonment will make necessary inroads upon a particular prisoner's personal rights will depend upon the reason for his detention and the legislation applicable to him. Making full allowance therefor, it seems to me nevertheless that although the Whittaker case was concerned with the plight of await ing-trial prisoners, the Innes dictum is one of 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 proposition was 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 necessary 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 by Corbett JA in the Goldberg case."
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The inquiry here is accordingly not whether - as Mr Tampi (who appeared for the Appellants) contended - the Lesotho Defence Force Act, 1996 ("the Act") or the Regulations and Rules made thereunder, conferred such right, but whether its operation was excluded either 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 the regulations conferred. But the directly opposite view is surely the correct one. They were entitled to all their personal rights and personal dignity not temporarily taken away by law, or necessarily inconsistent with the circumstances in which they had been placed. They could claim immunity from punishment in the shape of illegal treatment, or in the guise of infringement of their liberty not warranted by the regulations or necessitated for purposes of gaol discipline and administration" (emphasis supplied).
There is 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.
Mr. Tampi, however, contended that the express provisions relating to
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legal 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 provides:
"Subject to Regulation 36, no member shall be entitled to be legally represented by an advocate, attorney or any other person at any summary trial, investigation or proceedings for the taking of a summary of evidence held in terms of these Regulations."
None of these Regulations deals with a detainee's right of access to his legal adviser. Nor is it a necessary implication of such express 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.
On the basis that this court might hold the right not to have been excluded by express or necessary implication, Mr. Tampi finally argued that the circumstances prevailing in Maseru at the relevant time entitled the military authorities to adopt the attitude which they did. In this regard he
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referred 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 of senior officers and other officers and overthrew and resisted the lawful authority in the Defence Force. Such mutineers also impeded the performance of any duty or service in the Defence Force. Such criminal conduct by members of the Defence Force falls squarely 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 their offices. In simple language, it meant that the mutineers succeeded in removing the entire command structure of the LDF. A scenario which 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 forcibly taken to the maximum security prison and subsequently to Radio Lesotho where I was forced to read out a message which the mutineers had prepared."
He concluded his evidence by saying that "the entire government machinery had become paralysed".
These allegations, it should be noted, were not denied by the Respondents.
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What these allegations amount to are two contentions. The first is that a state of anarchy prevailed at the time the right to access was refused. The second is that, while only "immediate families" could be granted access to the detainees forthwith, the Commanding Officer was "prepared to consider" allowing legal access "once the situation improves", although he was under no legal obligation to recognise such a right.
In regard to the first contention, Appellants did not tender any evidence that access to a legal adviser would in any way have impacted negatively on internal stability.
There is 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 entirely arbitrary.
Moreover, for the reasons stated above, the Commander has misconceived the legal position. A detainee, even under military law, retains his common law right to a legal adviser save to the extent that such right has been expressly or by necessary implication attenuated. This is not a matter which depends upon the conferral by statute, but rather whether the statute attenuates it.
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The Commander does not possess the discretionary licence for which he contends, namely to consider at an unspecified future time whether or not he will allow access to legal advisers.
There is one further aspect to which we should refer. This is that in support of his argument in relation to the first issue, Mr. Tampi submitted 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).
There is no merit in this argument. In the first place, the Constitution does not purport to exempt the military from the operation of its 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.
We turn now to deal with the second issue.
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The charge or release issue
The basis 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 has 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."
S.89 of the Act provides:
"(1) The allegations against any person subject to this Act who is under arrest shall be duly investigated without unnecessary delay, and as soon as may be, either proceedings shall be taken against him or he shall be released from arrest.
Wherever any person subject to this Act, having been taken into military custody, remains under arrest for a period longer than 14 days without a court-martial for his trial being assembled, a special report on the necessity for further delay shall be made by his 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).
The appellants contend that, regard being had to the circumstances
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prevailing in Lesotho, the scale of the alleged mutiny, and the number of persons and separate incidents involved, the investigation which 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).
There is substance in the appellants' contention. The learned judge in the court a quo appears to have attached little weight to the largely uncontested allegations concerning the gravity of the situation prevailing at the tune. He wrongly held that the detainees should have been charged after an investigation of not more than 48 hours. For this proposition he relied on s.6(3) of the Constitution. That section has no application in the present case, by virtue (as already indicated) of the provisions of s.34(3).
The learned judge also stated that:
"By any stretch of the imagination there has been an unconscionable delay."
That is not the correct test. The true inquiry on this issue is whether it can be said that there has been "unnecessary delay" in the investigation. The record does not establish that there has been such delay, having regard to the
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circumstances detailed above.
S.89(l) furthermore provides that proceedings must be taken or the detainee released "as soon as maybe". The learned judge found that 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.
There was accordingly no basis for the arbitrary determination of a period of eight days fixed by the court a quo within which the detainees were to be charged or released.
A 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 v. West 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 and Others 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 of preliminary proceedings to courts martial.
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The Kingdom of Lesotho is a democratic State governed by an enlightened Constitution. For as long as this remains the case, the military, like all other organs of State remains subject to the law as administered by its courts.
It follows that the appeal against the first order fails, and that against the second order succeeds.
The order
It is ordered as follows:
The order contained in paragraph (a) of the order by Maqutu J dated 27 November 1998 is set aside.
The appeal against the order in paragraph (b) of the said judgment is dismissed.
By agreement there is no order as to the costs of the appeal.
J.H STEYN
PRESIDENT
R.N.LEON
JUDGE OF APPEAL
L. VAN DEN HEEVER
G. FRIEDMAN
J. J. GAUNTLETT
Delivered this 16th day of April, 1999.
