HIGH COURT OF LESOTHO
JOHN MAKHELE Applicant
COMMANDER- LDF 1st Respondent
PRESIDENT - COURT-MARTIAL
MABOLOKA 2nd Respondent
ATTORNEY GENERAL 3rd Respondent
HON MR JUSTICE S.N. PEETE
8th AUGUST, 2003
- a court in terms of section 118 of the Constitution of Lesotho of
1993 subject to the provisions of section 24 (3)
effect of Court-martial to comply with the mandatory provisions of
the Lesotho Defence Force No.4 of 1996
guaranteeing the right to
legal representation (section 95 (2) and the right to challenge
members of court martial to ensure impartiality
(section 94 and 97).
Section 104 civilianizing the court-martial procedures.
applicant, a second lieutenant in the Lesotho Defence Force, had been
charged with disobedience to lawful order under
section 51 of the
Lesotho Defence Force Act No.4 of 1996 in that on a specified day he
had refused to obey an order to stop wearing
a maroon beret and to
wear a green one, the Court-martial proceedings must accord with the
provisions of Part IX of the Act and
with principles of natural
Held: That whilst the section 118 of the Constitution of Lesotho of
1993 provides for the independence of the judiciary and the
including court-martial, on proper construction, the Lesotho
Constitution "creates a particular legal regime for the
in general and courts-martial in particular. The full panoply of
fundamental rights is expressly attenuated under section
24 (3) and
(4) of the Constitution. The Courts-martial nevertheless must be
impartial - but in the sense and to the degree appropriate
inherent nature as a statutory tribunal as military, not civilian
courts. Court-martial can function legally only within
of the Lesotho Defence Force Act.
Held: That since the accused is entitled to be represented by
counsel under section 95 (2) of the Act, denial or negation of this
statutory right amounts to a fundamental irregularity under the Act
justifying the setting aside of court-martial proceedings,
especially when read against background of suspected or apparent
Held: That military discipline notwithstanding, the courts-martial
should always conduct the proceedings firmly and fairly without
exhibiting impatience which demonstrates any bias, apparent or real
Held: That a formal withdrawal of a charge before judgment by the
prosecutor who has been duly appointed to conduct those proceedings
has the legal consequences similar to those in a civil court. No
written instructions from convening authority necessary. Accused
ought to have been acquitted. Otherwise powers of a prosecutor would
be nugatory if always subjected to doubt.
Held: Where fundamental irregularities before a court martial have
occurred, domestic remedies need not be exhausted before an
application for review is launched before the High Court. Sections
109, 110, 111 and 113 do not oust the jurisdiction of the court where
fundamental irregularity has occurred.
Held: Although there is generally no prescribed time limit within
which review proceedings must be brought, it is clear that they
be brought within a reasonable time. What is reasonable will depend
upon the particular circumstances of each case and the
exercising its discretion to entertain the proceedings will take into
the account the reasons for the lapse of time, injustice
to be suffered by each party. Rossouw vs Norton - 1950 (2) SA 1
Held: The delay must be reckoned from the time when the applicant
knew of the final decision which he seeks to have reviewed.
comes to the aid of the vigilant and not the slumberous -
vigilantibus et non dormientibus lex succurrit - Hahbury, Laws
England - Vol. 14 page 641 para 1181) -Zuurbekon v Union Government-
1947 (1) SA. 514 at 533 -535).
Held: Where it is alleged that the application for review was not
launched within a reasonable time, the court must in exercising
decision consider whether as a fact the proceedings were launched
after an unreasonable lapse of time and, if the answer is
affirmative, whether the unreasonable delay should be condoned which
again is a discretion excuse. The first inquiry is
a factual one.
Where the issue of condonation then arises the court exercises a
discretion -Stellenbosch Municipality v Director
of Valuations - 1993
(1) SA 1; Setsokotsane Busdiens v Voorsitter - 1986 (2) SA 57.
Held: Regard being had to all circumstances especially the fact that
the applicant, after making submissions to the Commander,
know of the final decision to dismiss him from the LDF until the
Legal Notice No. 100 was published, it cannot be said
that the six
months' delay before the launching the review application was
unreasonable and that in view of the fundamental irregularities,
proceedings ought to be set aside along with all decisions made
Held: Failure to address or put its mind adequately to the
challenges made to the members of the court-martial itself was an
Quare: Whether dismissal even though permitted by the Act is
commensurate with the misconduct alleged in charge.
applicant was a commissioned officer holding the rank of Second
Lieutenant in the Lesotho Defence Force. The undated Legal Notice
100 of 1998 reads as follows:-
"LEGAL NOTICE NO. 100 of 1998
Lesotho Defence Force (Removal of Officer) Notice 1998
I, KING LETSIE III, pursuant to section 21 (b) (c) and (e) of the
Lesotho Defence Force Act 1996 and acting in accordance with the
advice of the Prime Minister, hereby terminate the commission
No. 5871 SECOND LIEUTENANT TSOLO J. MAKHELE
With effect from the 10th day of September 1998.
Date:............................. King of Lesotho"
Legal Notice was promulgated in sequel to the court-martial
proceedings convened against the applicant on the 9th September
The charge sheet read thus:-
Accused No.5871 Second Lieutenant Makhele of F2 Platoon in F company.
A soldier of the Regular Force is charged with:
to Particular Orders an offence arising out of Military Service
contrary to section 51 (1) of Part VIII of the Lesotho
Act No.4 of l996.
In that upon or about the 25th day of August 1997 at or near
Makoanyane Barracks in the district of Maseru
the said accused being a person subject to military law under section
187 (1) (a) of the said Act, did wrongfully unlawfully intentionally
without reasonable cause or excuse disobey any command given or sent
to him personally i.e. he refused to use a green beret instead
maroon beret which was the command given to him on the 25th day of
August 1997 at about 9.15 hrs.
LEFOKA COMMANDER OF F.CO."
Officer of the Accused
charge which had been served upon the applicant at 11.23 am on the
8/9/97, had been preferred under Section 51(1) of the Act1.
remark in passing that the charge was rather verbosely worded and
omits what are in fact necessary words in Section 51
such a manner as to show defiance of authority", and "lawful"
to qualify the command given to the
accused. A charge under section
51 of the Lesotho Defence Force Act should have, as far as it was
possible, followed the wording
of the section which creates an
offence. In my view, the Legislature did not consider it necessary to
use words "wrongfully",
"intentionally", and "without reasonable cause or
excuse." These words were unnecessary
but can however be severed
without invalidating the charge. It was however necessary to allege
"lawful command" and not
just "any command". The
offence that is created is disobedience to a lawful command, not any
The omission of the word "lawful" was a formal defect which
could however be cured (without prejudice) evidence
led at the trial.
51 (1) of the Act reads as follows:
"(1) Any person subject to this Act who, in such manner as to
show defiance of authority, disobeys any lawful command given
to him personally commits an offence and shall, on conviction be
liable to imprisonment for a term not exceeding 2 years."
the Criminal Procedure and Evidence Act No.9 of 1981 reads as
"Defect in a charge cured by evidence
158. Whenever a charge in respect of any offence is defective for
want of the averment of any matter which is an essential ingredient
of the offence the defect shall be cured by evidence at the trial in
respect of the offence proving the presence of such matter
should have been averred, unless the want of averment was brought to
court before judgment. "
discrepancies were prone to occur because it seems the court-martial
was hastily convened first by Brigadier Thibeli on the
1997 and then by the Commander Lieutenant General Mosakeng on the
same day [this last Convening Order was only served
upon the accused
on the 1/10/97 when the proceedings in the Court-martial were afoot!]
It may be
important perhaps to restate, albeit briefly, the legal position
regarding courts-martial in Lesotho.
section 118 of the Constitution of Lesotho, the courts-martial are
listed as being part of the judiciary of Lesotho in whom
power is vested2. Section 118 should however be read subject to the
provisions of section 24 (3) which reads:-
"24. (3) In relation to any person who is a member of a
disciplined force raised under a law of Lesotho, nothing contained
or done under the authority of the disciplinary law of that force
shall be held to be inconsistent with or in contravention
provisions of this chapter other than sections 5 (right to life) 8
(freedom from inhuman treatment) 9 (freedom from slavery
(4) In relation to any person who is a member of a disciplined force
raised otherwise than as aforesaid and lawfully present in
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.
Bench of the Court of Appeal of Lesotho in Sekoati and Others vs
President of the Court-martial and Others - 2001 (7) BCLR
that whilst the Section 118 of the Constitution of Lesotho provides
"118. (1) The judicial power shall be vested in the courts of
Lesotho which shall consists of-
Court of Appeal;
Courts and Courts-martial;
tribunals exercising a judicial function as may be established by
(2) The courts shall, in the performance of their functions under
this Constitution or any
other law, be independent and free from interference and subject only
to this Constitution and any other law."
of the judiciary and the courts, including courts-martial, on proper
construction, the Constitution....
"... creates a particular legal regime for the military in
general and courts-martial in particular. The full panoply of
fundamental rights is expressly not available to the military. The
courts-martial nevertheless must be impartial - but in the sense
to the degree appropriate to their inherent nature as military, not
civilian courts. "
common cause in Lesotho that the Lesotho Defence Force has been
established by the Constitution of Lesotho. Section 146 thereof
"146. (!) There shall be a Defence Force for the maintenance of
internal security and the defence of Lesotho. "
Lesotho Defence Force Act No.4 of 1996 has been passed by the Lesotho
"to provide for the command, control and administration of the
Defence Force of Lesotho. "
also clear that this Act also has special provisions regulating the
discipline of the members of Lesotho Defence Force, and
PART IX of
the Act has general provisions governing the conduct of court-martial
proceedings- Section 91 - 1253.
Force (Court-Martial) (Procedure) Rules 1998 (Legal Notice No.24 of
1998 were only promulgated on the 18th June 1998;
they cannot be
applied to the facts of this matter because the Court-Martial was
convened on the 18th September 1997.
Canadian case of Regina - Genereaux - (1992) 88 DCR (4th) 110 SCC it
was recognized that breaches of military discipline
whenever they occur must be dealt with as speedily as possible under
a military code of discipline. This should apply
to Lesotho in the
same vein, in order to maintain good order, discipline and morale in
the army. Indeed the Lesotho Defence Force
Act No.4 of 1996 has
provisions which admirably measure up to the modern standards of
impartiality4 and independence; for example
section 94 (2) provides
for the legal representation (section 95 (2)); under section 97, the
accused may challenge any member of
the court-martial to its ensure
impartiality (section 97); Section 104 states that in a
court-martial, the law in force shall be
the law in force in criminal
proceedings in civil courts. The importance of section 104 lies in
its effect of "civilianizing"
(so to say) the procedure in
the provisions of the Act relevant to this application are
"mandatory" and the court will have to determine the
of their noncompliance upon the propriety of the court martial
proceedings. Under the principle of legality, a tribunal
court-martial must, in exercising its functions, comply fully with
the statutory provisions of the law creating it. Otherwise,
principles governing applications for recusal have been dismissed in
the recent Constitutional Court of South Africa (11 Judges)
Africa Commercial Catering and Allied Workers Union v Irvin &
Johnson Ltd - 2000 (3) SA 705 where it was held that
the court should
presume that judicial officers are impartial.
perusal of the Court-martial in this case record reveals that having
being served with the charge at 11.23 am at Makoanyane
the 8/9/97, the applicant was on the following morning at 9.15 am
immediately brought before the court-martial whose
M W Maboloka (Legal Services)
M L Kotelo (OC Medical Services)
K. Bane (Air Wing)
had been asked to plead to the charge as already quoted above, the
accused stated as follows:-
"Before the Court continue the hearing I have objections to
record then reads:
"Court: Yes, proceed.
Accused: I object to the whole composition of the Court on the
reasons that I fear that I may not get a fair hearing because I
you are to politicize my case. Since we had fought badly and the law
has never intervened to allow justice to take its course.
feel that I am your enemy and your victim.
Court: Mr Makhele ...you were given enough time the whole
night you were free to contact your lawyer. The Court is not
considering you pleas because this Court is duly convened by the
Commander of the army, so your objections are overruled.
Accused: So do you want to proceed without my lawyer?
Court: You had enough time to see your lawyer ... it is not our
problem the Court is continuing the proceedings. "
view, the pertinent importance of sections 94 and 97 of the Lesotho
Defence Force Act lies in their clear rationale to ensure
impartiality in court-martial proceedings; and to that effect, a
right (not privilege) is vested in the accused to challenge -
he can be asked to plead - the membership of any officer constituting
the court. These sections read seriatim:
94. 1) The officer who convenes a court-martial shall not be a
member of the court-martial
(2) An officer who, at any time between the date on which the accused
was charged with the offence and the date of the trial, has
commanding officer of the accused, and any other officer who has
investigated the charge against accused, or who has held,
acted as one of the persons holding, an enquiry into matters relating
to the subject matter of the charge against the accused,
shall not be
the president or sit as a member of the court-martial or act as judge
advocate at such a court-martial.
97. 1) An accused about to be tried by court-martial shall be
entitled to object, on any reasonable grounds, to any member of
court, whether appointed originally or in lieu of another officer.
(2)For the purpose of enabling the accused to avail himself of the
right conferred subsection (1), the names of the members of
shall be read out in the presence of the accused before they are
sworn, and he shall be asked whether or not he objects
to any of
(3)Every objection made by the accused to any officer shall be
considered by the other officers appointed as members of the court
(4)If an objection is made to the president, and not less than
one-third of the othermembers of the court allow it, the court shall
and the convening authority shall appoint another presiding officer.
(5)If objection is made to a member of the court other than the
president and not less than one-half of the other members allow
the member objected to shall retire and the vacancy may, and if
otherwise the number of members would be reduced to below the
minimum shall, be filled in the prescribed manner by another officer.
view, it was necessary before the three members of the court martial
were sworn in, that the names of the members of the court
been read out and the accused advised of his right to challenge5.
This was not done. In fact, the challenge was only
after plea and even so was cursorily dismissed by the court.
present case the accused challenged the whole court on the grounds of
"bias", citing politicization of his case
because of the
then faction fighting in the Lesotho Defence Force. He says "I
still fell that (I am)your enemy and
5 Rule 12
of the Court-Martial Procedure Rules (supra) 1998 later makes this
record reveals that this fundamental challenge to the constitution of
the Court-martial and the request to be legally represented
ridden roughshod over - in fact the court says-
the court is not considering your pleas because this court was duly
convened by the Commander of the Army ... so your
overruled". It is clear therefore that the court did not "put
its mind" to or "consider"
the challenges or request
for legal representation made by the accused.
for the maintenance of military discipline, it is necessary that
cases of misconduct or insubordination be expeditiously
for the sake of military order and discipline, an accused soldier
must be afforded sufficient time to prepare his defence.
In the first
place, the applicant was given just a few hours overnight to prepare
his defence and possibly to secure counsel. In
view of the fact that
the proceedings were not mere disciplinary but were court-martial,
the accused was entitled in the circumstances
representation; in fact section 95 (2) boldly guarantees this right.6
It reads as follows:
"95. (2) At proceedings before a court-martial the
prosecution and the defence shall be entitled to be represented by
6 In the
case of The Commander of the LDF v Rantuba 1999-2000 LLR/LB 95 at
101-02 the Court of Appeal held that-
"A detainee, even under military law, retains his common law
right to a legal adviser save to the extent that such right has
expressly or by necessary implication attenuated. This is not a
matter which depends upon a conferral by statute but whether
statute attenuates it."
7 In S. v
Melani and Others - 1996 (1) SACR 335 at p.346-50 it was held that
the right consult with a legal practitioners must be
exercised because it has everything to do with the need to ensure
that an accused is treated fairly in the entire
criminal process - p.
view, provisions of Lesotho Defence Force Act, like any other law in
Lesotho, must also be interpreted in such a manner as
not to violate
the fundamental provisions of our Constitution of Lesotho. The
court-martial can only function only in accordance
provisions of the Act and not otherwise.
disturbing feature of these proceedings is the way or manner in which
they were conducted. The perusal of the record shows
that the court
exhibited a rather extreme impatience with the accused when he was
cross examining the witnesses - as he was entitled
to. Many a time
the court interjects - "you are waisting the court's time"
... "you are asking irrelevant questions"
"I don't see
relevancy of this question." [Record page 5]. "Don't waste
court's time ". [Record page 2]
point the court seems to have descended into the arena -
Question: Lt.when you said I must stop using a maroon beret where
did you get those orders from?
ouasked and we indicated that it is the Commander! (Record,
It is the
basic principle of natural justice that a trial in a court of law
should at all times take place in an atmosphere of fairness
the accused must be given opportunity to cross examine without undue
interruption from the court.
South African case of R. v Maseko 1990 (1) SACR 107 it was held that
in our courts, a trial judge is entitled, and often
obliged, to ask
questions to a witness during trial. He should however guard against
any conduct which could create an impression
that he was descending
into the area of conflict. Such conduct could create the further
impression that he was partisan and that
he had pre-decided the
issues which should only have to be decided at the end of the trial.
The accused is usually given much latitude
when cross examining
witnesses because his purpose then is to challenge the veracity of
the evidence of such witnesses by putting
it to them that their
evidence is not the truth.
court-martial proceedings, it was pertinent to ask all questions that
related to the lawfulness of the command to wear
a green beret
instead of a red one - Duncan v Minister of Defence -1965 (3) SA 94,
While appreciating the fact that court-martial
proceedings may not
always enjoy the relaxed atmosphere and decorum exhibited in a civil
court, basic standards of fairness and
impartiality must be respected
at all times. In the case of S. v Rall - 1982 (1) SA 828, the
Appellate Division in South Africa
set some guidelines regarding the
limits within which judicial questioning should be confined, (pages
831 - 832) and held that
"open signs of impatience are sometimes
a breach of the impeccable impartiality which is expected from him
who bears the scales
of justice between the parties."
Constitution of Lesotho8, a court martial is a court of law whose
Section 118 (1) (c), see also Sekoati & Others v President of
Court Martial & others 1999-2001 LLR 67 where Kheola
that though a court-martial is an ad hoc body convened or assembled
by the convening authority only when need arises,
it is however an
independent tribunal under the Lesotho Defence Act of 1966.
should at all times conform to the basic principles pertaining to a
court of law and such principles include rules of
designed to ensure that accused has a fair trial. In the case of
Council of Review, South Afican Defence Force
and others v Monning
and others - 1992 (3) SA 482 (A.D) Corbett CJ had this to say at page
"Although a court martial is composed of military officers, it
is in substance a court of law and its proceedings should conform
the principles, including the rules of natural justice, which pertain
to courts of law. One such rule is that which postulates
person should not be tried by a court concerning which there are
reasonable grounds for believing that there is a likelihood
or there is a reasonable suspicion of bias .... The recusal right is
derived from one of a number of rules of natural justice
ensure that a person before a court of law should have a fair trial.
Generally speaking such rules which are part of
our common law, must
be observed unless the legislature has by competent legislation,
either expressly or by clear implication,
otherwise decreed. "
learned Chief Justice went on to opine that the failure of justice
which may occur in domestic tribunals e.g. clubs or associations,
should always be distinguished from the failure of justice in
proceedings in what is in substance a "court of law" and
held that even though the military officers constituting a
court-martial are "lay~men", a court-martial is
a court of law and the propriety of its proceedings
should be judged by the basic standards pertaining to a court of law.
494 H - 495 B) - See
also S. v
Malindi 1990 (1) SA 962. This procedural propriety is indeed
explicitly guaranteed under section 104 of the Lesotho Defence
Act. It reads:-.
"104. saveas is otherwise provided by this Act, the law which
shall be observed in the trial of any charge before a court-martial
onus of proof; and
sufficiency or admissibility of evidence, and
competency, compellability, examination and cross-examination of
matter of procedure,
shall be the law in force in criminal proceedings in the civil
correct approach in casu should therefore proceed upon the basis that
the applicant enjoyed a "recusal right" both
common law and under the Lesotho Defence Force Act9. The applicant
based his challenge upon what Corbett C.J. termed
bias"10 which challenge seems to have been summarily dismissed
without any due consideration.
circumstances, I am of the view that the court-martial's approach to
the recusal application, belated as it was, was wrong.
right to challenge should have been afforded before the applicant
pleaded; secondly, adequate and due consideration
should have been
given to the application, and not the summary dismissal it received.
Prima facie, this would justify
97 of the Act. (supra)
Manning's case, page 492 F
proceedings before the court-martial being set aside on review.11 In
casu, I am not convinced that, the challenge or objection
applicant, having been thus summarily dismissed without any due
consideration, it safely be said that the impartiality of
was without blemish. In its haste, the court-martial disregarded the
mandatory provisions of the Lesotho Defence Act
and conducted its
proceedings in the manner it did. This court will however not go into
the merits of the case- that was for the
glaring irregularity is demonstrated by the fact that even when the
appointed prosecutor formally withdrew the charge against
accused, this was ignored and overruled by the court, which proceeded
with the trial.
record at page 24 reads:-
he prosecution finds its case against S/Lt. Makhele to be
unsubstantiated as a result of insufficiency of reasons and evidence
to prove that the accused is indeed guilty. We therefore request
Honourable Court to dismiss the charges against the accused. The
prosecution withdraws the charges and it requests that the
court will take time to consider the prosecutions'
application ... you will know the court will adjourn until 0900 hrs
on 4/11/97 and both parties are expected to be present
have indicated that we have no case against the accused,
what should we then come here for.
court will adjourn to 0900 hrs 04.11.97. The court will adjourn. "
Council of Review (supra) at page 494
04.11.97 at Makoanyane Headquarters Building.
Bereng continue with your summary. Make your addresses.
Accused: Before he rises I would like to know from the court. Before
we adjourned the prosecution made an application that they
insufficient evidence to support their case and they requested the
court to discontinue the hearing. Has the court ignored
application? Bereng had supported private Mahao on that move. Mr
Bereng did you make another application to continue
contrary to your previous application? I have no case to answer!
do not know that boy who made the application. I do not know
who brought him here. He is a very new recruit. It is I here whose
instructions will be listened to I have not withdrawn the case
Court Once the case is before the court it is not for the
prosecution to order the court to discontinue the hearing, therefore
the court find it necessary to continue the hearing and the
application is overruled the case is no longer theirs (MABOLOKA)
Accused: Are you sure you know what you are doing. Anyway lets
proceed as you wish.
Court Mr Makhele this is for the court not for you. You are the
accused before this court.
you Adv. Pres I hope you have already decided the
case of Tsematsi Mosolo v Rex 1979 (2) LLR 482 (C.A) it was held that
in order to decide whether or not the prosecutor has
case12, regard must be had to his actual words and the circumstance
in which they were uttered (Scott v Additional
Magistrate - Pretoria
- 1956 (2)SA 655 at 658; Masupha v Rex - 1974-75 LLR 309 per Isaacs
A. J. In my view the prosecutor in a
court-martial is dominus litis
and it was within his power to withdraw a charge at any stage of the
court-martial proceedings and
"no court can prevent him, just as
no court can force him to prosecute" ~ R v Sikumba 1955 (3) SA
125 at 127 per de Villiers
J. It was not correct, in my view, for the
court-martial to have proceeded despite the clearly expressed
withdrawal of the charge
by the prosecutor; it was indeed not correct
for the court to say ... "the case is no longer theirs" One
may ask "whose
case was it then"
case of Blacker v University of Cape Town - 1993 (4) SA 402 it was
held that a denial of justice in disciplinary proceedings
presumed to be prejudicial to the party affected; if the irregularity
complained of is calculated to prejudice the party
is entitled to have the proceedings set aside unless the court is
satisfied that he/she was not prejudiced and
the onus to disprove
prejudice rests upon the tribunal concerned - Turner v Jockey Club of
South Africa - 1974 (3) SA 633.
Withdrawal of the charge is matter of procedure. After plea,
withdrawal of a charge amounts to a discontinuation of proceedings
and section 8 of Criminal Procedure & Evidence applies and
accused has to be acquitted in respect of that charge.
I am not
oblivious to the South African decision of S v Tengo 2003 (1) SACR
162 (ECD) which dealt with a situation where a subordinate
- without the consent of the Director of Public Prosecutions -had
effectively stopped the prosecution after the accused
The accused had originally pleaded guilty but his plea had later been
changed to "not guilty" plea the prosecutor
accepted. Pickering J. held - on review - that acceptance by the
prosecutor of the plea of "not guilty" and
acquittal stood to be set aside because under section 6 (b) of the
Criminal Procedure Act No. 51 of 1977 the Director
"at any time after the accused has pleaded but before
conviction, stop the prosecution in respect of that charge in which
event the court trying the accused shall acquit the accused in
respect of that charge: Provided that where a prosecution is
by a person other that the attorney general... the
prosecution shall not be stopped unless the attorney general in a
case, has consented thereto. " (my emphasis)
this is provision of a South African Statute and has no application
in our jurisdiction. I ignore it. Our section 5 of the
Procedure and Evidence Act No.9 of 1981 reads:
"5. The Director of Public Prosecution may in any case in which
he considers desirable so to do -
and undertake criminal proceedings against any person before any
court (other than a court -martial) in respect of any
alleged to have been committed by that person;
over and continue any criminal proceedings which have been
instituted or undertaken by any other person or authority including
any proceedings instituted before the commencement of this Act; or
in writing at any stage before judgment is delivered any criminal
proceedings instituted or undertaken by himself
or other person or
6. (1) The powers of the Director of Public Prosecutions under
section 5 may be exercised by him in person or by officers
to him acting in accordance with his general or special
should be read in consonance with section 278 (3) of the Criminal
Procedure and Evidence which reads:
"278. (3) Nothing in this section shall deprive the Director of
Public Prosecutions or the public prosecutor with his authority
his behalf of the right of withdrawing any charge at any time before
the accused has pleaded, and framing afresh charge for
the same or any other competent court. "
104 of the Lesotho Defence Force Act states that "any matters of
procedure" shall be governed by the law in force
proceedings before civil court in Lesotho. Institution, continuance,
discontinuation of criminal proceedings in my
view are all matters of
prosecutor adduces evidence before the court martial, he does so upon
his own responsibility and in performance of that duty,
he is wholly
independent of the court which should not interfere with the said
conferred upon him by the Statute - Gillingham v Attorney General -
1090 T.S. 572 - R v Komo - 1947 (2) SA 508.
limine, the respondents have submitted that the application is barred
on the ground of unreasonable delay. It is the trite principle
law that although there is generally no prescribed time limit within
which review proceedings must be brought, it is clear
that they must
be brought within a reasonable time.13 What is reasonable, in my
view, will depend upon the particular circumstances
of each case and
the court in exercising its judicial discretion to entertain the
proceedings must first inquire factually into
the lapse of time and
if it is found that the lape was unreasonably long, it has a
discretion whether or not to condone the delay14.
The delay must be
reckoned from the time when the applicant knew of the final decision
which he seeks to have reviewed. In casu,
although the applicant
petitioned the Commander of the Lesotho Defence Force on the 7th May
1998, he did not receive any response
until the publication of Legal
Notice No.100 of 1998 which operated with effect from 10th September
view whilst the delay must be reckoned from the time when the
applicant knew of the final decision which he seeks to have
the reasonableness or otherwise of the lapse of time is a matter of
degree and is relative to the particular circumstance
particular case. In the case of
Herbstein & Van Winsen - Civil Practice of the Supreme Court of
South Africa (4th ed) 1997 .955 Mnisi v Chauke- 1994 (4)
SA. 715 Rev.
Khang v Bishop Mokuku - C of A (civ) No. 19 of 2002.
law comes to the aid of the vigilant and not the slumberous
(vigilantibus et non dormientibus lex succurrit)
Busdiens v Nationale Vervoerkommissie - 1986 (2) SA 57 the Appellate
Division set down the test as follows:
"The test which a court has to apply to ascertain whether a
common law application for review in the absence of a specific
limit, was brought within a reasonable time, is of a dual nature. The
Court namely has to ascertain (a) whether the proceedings
instituted after expiration of a reasonable time and (b) if so,
whether the unreasonable delay should be condoned. As regards
the Court exercises a discretion but the enquiry as far as (a) is
concerned does not involve the exercise of the Court's discretion;
involves a mere examination of the facts in order to determine
whether the period that has elapsed was in the light of all the
circumstances, reasonable or unreasonable. Naturally the finding of
the Court in this regard does imply that the Court has made
judgment in the sense of the Court's view of the reasonableness of
the period that has elapsed in the light of all the
equate such a value judgment with a discretion is, however, not
justifiable legally or logically. "
case under review the issue of delay was not raised specifically as a
substantive point in limine by the respondents in their
affidavit, which limited itself to the issue on non-exhaustion of
domestic remedies. The issue of delay has been raised
belatedly and only so in the heads of arguments; in my view, the
issue of delay should have been raised issuably in the
affidavit in order to be responded to in the replying affidavit by
the applicant. I however feel that a delay of six
months between the
date of the Legal Notice terminating his commission and the launching
of the review application is not unreasonable.
Anyway the respondents
cannot rely on an issue which was not raised in limine in their
It is our
law that where the law or contract provides for domestic remedy in
disciplinary matters, such remedies must be exhausted
application is launched in the High Court for review. It is also
correct to state that where a fundamental irregularity
a review application is however not precluded - Ndara v Umtata
Presbytery NGK - 1990 (4) SA 22. In Welkon Village
Management Board v
Leteno- 1958 (1) SA 490 Ogilvie Thompson J.A. held that domestic
remedy provisions do not and should not oust
the jurisdiction where a
fundamental irregularity has occurred - Theron v Ring Van Wellington
- 1976 (2) SA 1 (A)
the applicant, for his part, did petition the confirming authority,
though belatedly. It was only on the 6th May 1998 (some
after the court-martial decision) that the Commander as the
confirming authority wrote to the applicant. His letter
PO Box 54
CONVICTION BY COURT MARTIAL
you were convicted by a duly convened Court Martial of a Military
offence contrary to Section 51 (1) of the Lesotho Defence
1996, and recommended to be dismissed.
in terms of Section 21 (b) (c) and (e) it is proposed to terminate
your Commission as an officer.
therefore require you to show cause, in writing, as to why the
proposed action should not be taken against you. Any representation
you may wish to make should reach me not later than 14.00 hours on
Friday 8th May 1998.
8th May 1998 the applicant wrote a lengthy "petition" to
the Commander listing his grievances about the court-martial
proceedings. Nothing happened until the Legal Notice No.100. I do not
think it can be said that the applicant failed to exhaust
remedies under the Act, or if he did, I am of the view that the
fundamental irregularities I have alluded to entitled
him to launch
the review application.
finally brings me to the legal validity of Legal Notice No. 100. In
the case of Commander - LDF v Mokuena and Others - C. of
A. (civ) No.
12 of 2002 Steyn P. stated thus:-
"The legal notice that has as its source the administratively
flawed procedure is accordingly null and void. "
view the irregularities in the court-martial proceedings were so
fundamental that these proceedings ought to be set aside
and they are
hereby aside. Consequently the Legal Notice No.100 is also declared
null and void.
Applicant : Mr Mohau
Respondent : Mr Putsoane and Mr Mojaje
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