CIV/APN/25/99
IN THE HIGH COURT OF LESOTHO In the matter between:
'MAMALEBANYE MARGARET LEROTHOLI APPLICANT and
PAKALITHA BETHUEL MOSISILI 1ST RESPONDENT
THE ATTORNEY GENERAL 2ND RESPONDENT
JUDGMENT
Delivered by the Honourable Chief Justice
Mr Justice J.L. Kheola on the 26th day
of January. 1999.
This is an application for an order in the following terms: 1. Directing the 1st Respondent to move or cause to be moved to reasonably salubrious premises, being premises other than a prison or similarly restricted premises, the sitting of the Court Martial presently sitting in a temporary masonite structure erected on the premises of the Maseru Central Prison in a trial of one Makotoko Daniel Lerotholi and 49 others.
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2. Directing the 1st Respondent to ensure that the friends
and relatives of the said Accused, as well as interested members of the public have reasonably unimpeded access to the said hearing .
Directing the 2st Respondent to ensure that the premisesin which the hearing is held have reasonable andacceptable ablution facilities and facilities forconsultation with their clients by Counsel for theAccused.
Directing the Respondents to pay the costs of thisApplication.
Granting the Applicant further or alternative relief.
It is common cause that the applicant is the wife of one of fifty members of the Lesotho Defence Force who are standing trial on a charge of mutiny before a court-martial sitting in the precincts of the Maseru Central Prison.
3 The court-martial has been convened by the first respondent in terms of the
Lesotho Defence Force Act No.4 of 1996. It is specifically directed that the court-martial assemble at a specially erected premises situate in the vicinity of the Maximum Security Prison at Maseru or at any other venue as the Commander of the Lesotho Defence Force may designate.
In paragraph 8 of her founding affidavit the applicant alleges as follows:
8.
"My attorney of record, speaking on behalf of all the Accused and their legal representatives, thereupon informed the court that in view of the fact that the complaint of the Accused and their legal representatives concerning the venue of the hearing was not being heeded by the 1st Respondent, he and his colleagues were compelled to withdraw as Counsel for the Accused. He submitted that:
8.1 The Accused's understanding of this particular choice of venue was that it is intended to serve as a message to them that they would not be setting foot outside a prison for a long time. In other words, that their fate had
already been pre-determined.
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8.2 That their trial, notwithstanding protestations to the
contrary, was not being held in open court in as much as, it being held on controlled premises, access thereto by the friends and relatives of the Accused was restricted and censored. He pointed out that the said masonite structure had been constructed specifically to accommodate the 50 Accused together with their friends and relatives and that since it could only accommodate a maximum of some 150 members of the public to the exclusion of about twice that number who congregated daily at the prison gates, it was no answer to the complaint of the Accused to say that access thereto meant no more than for such number of persons as the court room could accommodate.
8.3 That the structure in which the proceedings were beingheld was primitive, uncomfortable, being tight forsitting space and unbearably hot. He drew attention to
the fact that some 7 Accused had been on their feet since the beginning of the proceedings as they had been
5 provided with no sitting space.
8.4 That for their ablution facilities Counsel had been provided with a night soil bucket next to the court room, a facility they found especially humiliating particularly as they were expected to share it with the Accused and members of the public attending the trial.
.8.5 I and the other relations and friends of the Accused have had personal experience of the harassment meted out to and the hassle experienced at the hands of the Military Police by persons seeking access to the said court premises."
I shall not deal with the evidence in this application at this stage because Mr Makhethe, the defence counsel has raised certain points of law in limine which I have to consider before we get into the merits if the need should arise. If the points raised in limine are upheld that will be the end of this matter.
The first point raised by Mr. Makhethe is that the applicant has no locus
6 stand: to institute these proceedings. He submitted that in the first place, no
evidence has been adduced in the founding affidavit to any disability or otherwise, suffered by the applicant's husband which would seemingly prevent or prohibit him from instituting these proceedings. Secondly, the applicant, in any event, can have no mandate to make averments on behalf of members of Lesotho Defence Force who are being court-martialled, that is, that is she has no local stand: to sue on behalf of other members of the Lesotho Defence Force.
In reply to the above submission Mr Sello, attorney for the applicant submitted that the applicant was not suing on behalf her husband but on her own behalf because she is affected by the wrong personally. In CIV/APN/481/98 three wives of the members of the Lesotho Defence Force sought an order directing the respondents to allow the applicants legal representative to have free and uninterrupted access to the prisoners, and to consult with them in secret; to be directed to cause the bodies of the said prisoners to be brought to be inspected by the Honourable Judge; to be directed to cease subjecting the above-mentioned prisoners to interrogation without their consent and in the presence of their attorney if the prisoners so wish and request and to be directed to cause or allow the above-mentioned prisoners to have access to medical treatment whenever the need arises from doctors of their choice.
7 I must point out that that application was different from the present one
because the applicants were held incommunicado. They could not meet lawyers in order to give them proper instructions. The Court had no hesitation to grant the orders sought because that was a clear case of habeas corpus. The husbands of the applicants were unable to communicate with the outside world including their own wives. They could not even depose to an affidavit. In the present case the applicant husband is able to communicate with his own wife as well as his own attorney.
The law is that where a duty is imposed by statute in the interest of the public in general and it has not been complied with, no person can bring an action claiming redress merely on the ground that he is acting in the interest of the public. Such an action was recognised by the Roman law and was known as the Actio Popularis, but it became obsolete in Dutch practice. To-day relief can be claimed only by a person who has sustained or is likely to sustain damage by reason of the breach of duty (See Dalrymple v. Colonial Treasurer, T.S 372; Roodeport -Maraisburg Town Council v. Eastern Properties, 1933 AD 101)
I do not see how the applicant is likely to sustain any damage in a matter of this nature. Prayer (1) of the Notice of Motion is not something that can be
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suffered by the applicant. It is something that can be suffered only by the
applicant's husband who is bound to sit in those premises which are alleged not reasonably salubrious. What the applicant is trying to disguise herself and pretending that she is claiming redress on her own behalf but it is very clear that she is claiming on behalf of her husband who is free to institute this kind of proceedings himself. He is not handicapped in any way like he was when he was denied the right to be seen by his attorney for consultation in secret.
In Roodepoort - Maraisburg Town Council case (supra) at p. 101 Wessels, C.J. said:
"I agree with the judgment of my brother Stratford. I merely wish to add that with regard to the question of locus stand: our Roman -Dutch system of law gives the municipality a right of action, in actio popularis is undoubtedly obsolete, and no one can bring an action and allege that he is bringing it in the interest of the public, but by our law any person can bring an action to vindicate a right which he possesses (interesse) whatever that right may be and whether he suffers special damage or not, provided he can show that he has a direct interest in the matter and not merely the interest which all
9 citizens have" (my emphasis).
The sort of interest the applicant is trying to protect is not a direct interest enjoyed by her alone but by her husband, all the accused charged in the court-martial, her friends, her relatives and the general public. This again shows that she has no locus standi.
Prayer (2) of the Notice of Motion is obviously a prayer under the Actio Popularis which is part of our law. It has been held in several cases that it has become absolete, the Dalrymple case (supra) and Roodepoort - Maraisburg
Town Council Case (supra) are only an example. The applicant has no right to sue in the interest of her friends and relatives "as well as interested members of the public. Those people must have sue in their own names and prove that they have personally sustained or are likely to sustain damage by reason of the breach of duty. I have come to the conclusion that the applicant has no locus stand: on behalf of the people and the general public she has mentioned in prayer (2) of the Notice of Motion.
Another question is that of jurisdiction. The court-martial in question was properly convened by the person authorised by law. It is, like other tribunals, a
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tribunal which must be respected in the sense that if any person has a complaint
against it, he must apply to it for whatever order he wants. If he is unhapply about the decision of the court-marital he can then apply to the High Court for a review if such decision in terms of the High Court Rules 1980 (Rule 50). In my view the applicant is not properly before this Court. She has bypassed her proper forum and rushed to the wrong one.
In the result the application is dismissed with costs.
J.L. KHEOLA CHIEF JUSTICE
26th January, 1999.
For Applicant -Mr Sello
For Respondents - Mr Makhethe.