CIV/APN/25/99

IN THE HIGH COURT OF LESOTHO
In the matter
between:

'MAMALEBANYE MARGARET LEROTHOLI APPLICANT and

PAKALITHA BETHUEL MOSISILI 1^ST RESPONDENT

THE ATTORNEY GENERAL 2^ND RESPONDENT

JUDGMENT

Delivered by the Honourable Chief Justice

Mr Justice J.L. Kheola on the 26^th day

of January. 1999.

This is an application for an order in the following
terms: 1. Directing the 1^st 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.

2

2. Directing the 1^st 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
.

3. 
   Directing the 2st Respondent to ensure that the
   premises
   in which the hearing is held have reasonable
   and
   acceptable ablution facilities and facilities
   for
   consultation with their clients by Counsel for the
   Accused.

   
   

4. 
   Directing the Respondents to pay the costs of
   this
   Application.

   
   

5. 
   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 1^st 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.

4

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
being
held was primitive, uncomfortable, being tight for
sitting
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

10

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.