CRI/T/150/04

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

ZWELAKHE
MDA 1st APPLICANT

LIMAKATSO
RALITLHARE 2nd APPLICANT

versus

THE
DIRECTOR OF PUBLIC

PROSECUTIONS
1st RESPONDENT

THE
ATTORNEY GENERAL 2nd RESPONDENT

Held at
Maseru on 14th15th, 16th and 17th March 2005 CORAM: Honourable Mr
Acting Justice SV Mtambanengwe Delivered on: 18 April
2005

JUDGMENT:

2

This is
an application on Notice of Motion, initially on an urgent basis and
in terms of Rule 12(1) of the Constitutional Litigation
Rules,
seeking "an Order in the following terms:

1. Dispensing
   with the forms and service provided for in the rules;

   
   

2. That
   the presiding judge give directions for the conduct of this matter;

   
   

3. The
   declaratory that the decision of the Respondent to indict 1st and
   2nd Applicants before the High Court in CRI/T/150/04 is
   irregular
   and/or unconstitutional;

   
   

4. The
   declaratory that the criminal proceeding relating to the charge in
   CRI/150/04 can only be commenced before the Magistrate's
   Court of
   competent jurisdiction; and

   
   

5. That
   Applicants be granted further or alternative relief."

   
   

6. The
   deponent of the founding affidavit in this matter is first
   applicant, and that of the opposing affidavit is first respondent.

   The second respondent is cited 'in his nominal capacity as the
   representative of the Government of Lesotho in Legal Proceedings'.

   
   

3

When the
hearing started, heads of argument had been filed of record for both
sides. On the merits, paragraph 2.1 of applicant's
heads reads:

"2.1 This Court will not be called upon to pronounce itself on
any constitutional issue. This is because the matter is capable
of
resolution on a non-constitutional ground. In any event, therefore,
it would be inappropriate to invoke a constitutional remedy."

This
meant that an order in terms of prayer (c) was no longer sought by
the applicants. The parties were also in agreement that
the
application must be heard by the trial Judge before whom the trial
was due to proceed. Section 160 of the Criminal Procedure
and
Evidence Act 1981 (the Act) provides that –

"(1)
When the accused intends to apply to have a charge quashed under
Section 159, or to except or to plead any of the pleas
mentioned in
Section 162, except the plea of guilty or not guilty, he shall give
reasonable notice (regard being had to the circumstances
of each
particular case) –

4

1. to
   the Director of Public Prosecutions or his representative if the
   trial is before the High Court.

   
   

2. ......

   
   

3. ...........

   
   

Stating
the grounds upon which he seeks to have the charge quashed or upon
which he bases his exception or plea.

(2) The
notice referred to in subsection (1) may be waived by the Director of
Public Prosecutions and the Court may on good cause
shown, dispense
with or adjourn the trial to enable the notice to be given."

One of
the relevant pleas mentioned in section 162, of which notice is
required to be given by the accused is sub-section (2) (e),
namely
'that the Court has no jurisdiction to try him for the offence.'

Section
146 of the Act provides as follows:

"(1)
If on the trial of a person charged with an offence before any Court
it appears that he is not properly triable before
that Court, he is
not by reason thereof entitled to be acquitted, but the Court may, at
the request of the accused, direct that
he be tried before

5

some
proper Court and may remand him for trial accordingly."

2. If
   the accused does not make the request referred to under sub-section
   (1) the trial shall proceed and the verdict and judgment
   shall have
   the same effect as if the Court had originally had jurisdiction to
   try the accused.

   
   

3. This
   section shall not affect the right of the accused to plead to the
   jurisdiction."

   
   

There was
no amendment made or applied for to the affidavits originally filed
as a consequence of the abandonment by or on behalf
of the applicants
of the constitutional issue. Hence the founding affidavit and the
opposing affidavit, inter mixed the constitutional
and the other
bases for the order sought. The founding affidavit, for example,
still said, in paragraph 6 thereof;

"6.1
I verily aver that Respondent's decision to indict us at the High
Court is fatally flawed and unsustainable for the following
reasons:-

6

1. The
   order of this Honourable Court was in essence to render our criminal
   case interlocutory before the Magistrate's Court, so
   that it cannot
   now be commenced before the High Court.

   
   

2. The
   matter is still pending before the Magistrate's Court.

   
   

3. Respondent
   has not applied his mind properly to the question of the proper
   forum to bring the charges inasmuch as there is no
   rational basis
   for bringing the matter in the High Court when it was first heard in
   the Magistrate's Court.

   
   

6.2 I
verily state further that Respondent's decision is in contravention,
of the provisions of the Constitution in the following
respects:

1. We
   are being deprived of the benefit enjoyed by other citizens in
   similar circumstances, of evoking the High Court jurisdiction
   as an
   appellate forum in testing the correctness of the Magistrate's

   
   

7

Court as a Court of first instance. And this is done in violation of
our freedom from discrimination and rights to equality before
the law
and equal protection of the law.

b) Concomitant with the serious prejudice aforesaid is the fact that
we are now compelled to assemble a legal team to represent
us in the
High Court at much higher and unaffordable legal costs than in the
Magistrate's Court.

c) We submit that there is no rational justification for our
disparate treatment."

The apposing affidavit of first respondent on the other hand stated
in paragraph 2 and

3 that:

-2-

"Because
of the basis for this application and the manner in which it should
in my respectful view be dealt with, which I set
out below, I do not
propose dealing with the matters

8

raised in
the founding affidavit seriatim. However, to the extent that what is
contained therein is in conflict with what is set
out hereunder, such
is denied.

-3-

First, the intention of the applicants is clearly that this
application be heard by a civil Judge and not trial Judge before whom

the trial is due to proceed on 14th February 2005. To this extent
this application is irregular and fatally flawed. Whether or
not this
application involves a constitutional right of the applicants, the
correct forum is the trial court."

It is now
necessary to sketch the background to this application before
proceeding further. It is the following, first and second
applicants
and three others appeared before the Magistrate's Court charged with
the offence of defeating or obstructing or attempting
to defeat or
obstruct the course of justice. The crown called two witnesses in
support of its case. At the close of the crown's
case an applications
for a discharge in terms of section 175(3) of the Criminal Procedure
and Evidence Act 1981 was granted. The
Director of Public
Prosecutions appealed against the Magistrate's Court's ruling to the
High Court. The High Court upheld the

9

appeal
and ordered that the applicants be tried de novo. An appeal by the
applicants to the Court of Appeal was unsuccessful. The
first
respondent thereafter indicted the applicants on the same charge
before the High Court.

In the
original heads filed on behalf of first respondent a statement is
made in the conclusion thereof that the decision of first
respondent
is therefore not reviewable and that the applicants have no right to
choose the Court before which they are to be heard.
The applicants
original arguments appeared to be to the contrary.

To
clarify matters I requested that further written submissions be filed
by both parties before they addressed the Court orally.
The request,
subsequently put in writing, was intended to focus counsel's
attention on what prima facie appeared to the court as
the relevant
provisions of the Act, but more particularly, for counsel to spell
out more clearly, if a review of the first respondent's
decision was
being sought, the legal principles they sought to rely on.

10

As a
result of my request first respondent first filed a supplementary
apposing affidavit, which the applicants replied to, before
both
parties filed their further written submissions.

In this
supplementary opposing affidavit first respondent states:

2.

"I
have already made an opposing affidavit in this application which
affidavit was intended to meeting the case being made
out by the
applicants on the papers. However, the applicants have subsequently,
in the Heads of Argument filed at the end of the
day on 14 February
2005, made out a further case, namely, that the criminal case is
improperly before the High Court as the accused
have not been
committed for trial by a Magistrate (as required by Section 92 of the
Criminal Procedure & Evidence Act, 1981)
and that I have not
invoked the provisions of Section 144 of that Act to have the accused
summarily tried before the High Court.

3.

I am also
informed, and verily believe it to be true, that the Honourable
Presiding Judge hearing this matter, at the commencement
of the
hearing on 15 February requested

11

Counsel
for the Crown to specifically address certain points, including
whether the exercise of my discretion in indicting the accused
before
the High Court instead of the Magistrate's Court, was reviewable or
not.

4.

In the
circumstances set out above I beg leave to file this supplementary
opposing affidavit, setting out my response to the new
grounds relied
upon by the accused and the questions raised by the Presiding Judge.

5.

I confirm
that, when deciding to indict the accused before the High Court, I
relied upon the powers provided to me in Section 99
of the
Constitution and in Section 5 of the Act as read with Section 144. I
considered that it is in the public interest for the
accused to be
tried in the High Court and for one or more of the following reasons:

5.1 The
Court of appeal emphasized that it was in the interest of justice
that the accused be tried by another court, not the Court
which tried
them in the first

12

instance.
In my view the interests of justice are the same as the public
interest.

5.2 In
the light of the fact that a judge of the High Court has already held
that the Crown, in the previous hearing, had established
a prima
facie case against the accused, a Magistrate hearing the case might
well be influenced thereby. This would not be the case
if a Judge
were hearing the case. In addition, the 1st Accused is well known to
most Magistrates which might also cause the Magistrate
hearing the
matter to be influenced. The present Presiding Judge has no such
connection with the 1st Accused.

5.3 There
would be no material prejudice to the accused by being indicted in
the High Court. Indeed it would lead to a more speedy
resolution of
the case, which would be in the interests of all concerned, and also
in the public interest. Furthermore, the proceedings
in the
Magistrate's Court are not recorded and this makes it more difficult
to prepare a record for appeal. The proceedings in
the High Court are
recorded.

13

6.

As for
the question as whether the accused had a legitimate expectation of
being heard by me before I decided to indict them in
the High Court,
I deny that such expectation could or did arise in the circumstance
of this case."

It is
necessary also to quote in full the most salient parts of the
"answering" affidavit of first applicant. I do so
because
the contents of these papers foreshadow the arguments that were
addressed to the Court when the proceedings continued two
days after
the adjournment accessioned by my request, and for the further reason
that these papers serve to complete the background
to this
application:

4, AD
PARAGRAPH 2 THEREOF:

a) It is admitted that the deponent has already filed an affidavit
dealing with the factual averments in the founding affidavit
as he
was entitled to.

14

b) It is denied that any further case has been made out in the Heads
of Argument. The founding affidavit clearly puts into issue
the
decision of the deponent to remove the case from the Magistrate's
Court to this Court. In that event, the deponent was entitled
to have
referred the alleged public interest that he now, ipso factu invokes.

c) Deponent has clearly referred to the legal instruments upon which
he based his decision in the original affidavit. Nothing prevented

him from referring to Section 144 on public interest. He did not
refer to it because it never exercised his mind.

d) The only situation in which deponent would be entitled to deal
with the issue that we were not committed, is if he was alleging
that
in fact we were committed and that our legal teams Heads of Argument
fly in the face of that true position.

e) Your Lordship will see that instead of dealing with the issue of
committal, which is proffered as one of the reasons for the
deponent
to file this affidavit, deponent

15

has strangely dedicated his affidavit to the public interest issue,
which arises under Section 144 and not the committal issue
arising
under Section 92(1) of the CP&EAct.

7. As
   already stated, he should have stated the alleged public interest in
   the original affidavit.

   
   

AD
PARAGRAPH 3 THEREOF:

a) His Lordship raised issues of concern to his Court and that was
not to give deponent the opportunity to respond to legal contentions

by filing an affidavit on facts dealing with the matters after the
event.

b) It is significant that, but for His Lordship's concerns, both
teams were ready to proceed with oral arguments.

6. AD
PARAGRAPH 4 THEREOF:

16

The
issues by His Lordship were purely legal issues, not an invitation to
place any further facts before him leading to unnecessary
delays.

AD
PARAGRAPH 5 THEREOF:

a) As
already stated, the reference to Section 144, is an afterthought. One
cannot imagine why it was not mentioned in the original
affidavit if
it exercised the deponent's mind for it appears it would have been
the main basis for his decision.

b) As I
shall show hereinunder, the reasons advanced do not qualify as public
interest.

8. AD
PARAGRAPH 5.1 THEREOF:

1. Contents
   herein are not accurate. Your Lordship will see that in the extract
   filed of record, the Court of Appeal, specifically
   refers to "a
   different Judicial Officer". This could have been a reference
   to a different Judicial

   
   

17

Officer/
Magistrate other than Mrs Nthunya who was found by the High Court to
have made credibility findings.

2. Indeed
   the High Court in its order was debating whether the same magistrate
   would proceed with the matter. It decided to remit
   it, but not for
   continuation before Mrs Nthunya instead for trial denovo. But it was
   remitted as will clearly appear in the High
   Court order.

   
   

AD
PARAGRAPH 5.2 THEREOF:

a) The
Magistrate who will preside over this matter holds the same legal
qualifications as deponent. They are trained lawyers and
know their
job very well. At any rate, there is always the High Court if they go
wrong, just as there is the Court of Appeal if
the High Court errs.
Besides, all sides will be represented before the Magistrate. I fail
however, to see how this point is in
the public interest.

2. Your
   Lordship will see indeed that what deponent is here saying, is that
   he has no confidence in the Magistrate's Court. He says
   this after I
   was discharged by a

   
   

18

Magistrate.
Quite clearly, his lack of confidence in the Magistrate's Court must
be viewed in that light. He is not entitled to
exhibit this contempt
for the lawfully established Courts of law.

c) The
allegation that the Magistrate will be influenced by the knowledge of
myself, clearly reinforces the view that deponent lacks
confidence in
them.

d) As
regards His Lordship, we feel it is unfortunate that his position
should be dragged into this debate by the deponent. What
needs to be
emphasized is that the defence is not aware of the reasons why the
permanent judges of the High Court could not have
dealt with this
matter in the deponent's view. But, it is safe to infer that he
thinks the same way about them as the Magistrates.
We would
respectfully bring it to your Lordship's attention that none of the
judges of this Court declined to hear this matter.

3. For
   the edification of this Court, the matter was placed before Guni J.
   in the last session and she was indisposed

   
   

19

and
unable to attend. The defence team had assembled at Court and the
prosecution team never showed up.

f) There
was never any indication that the permanent judges were not inclined
to hear what would have been the preliminary objection
now raised
before Your Lordship. This objection was intimated to the deponent as
early as last year.

10. AD
PARAGRAPH 5.3 THEREOF:

a)
Contents herein are denied and deponent put to the proof thereof. To
accept the deponent's averments, one would necessarily have
to accept
that the Magistrate's Court is not a competent and independent Court
of law.

b) By
law, the Magistrate's Court is a Court of record. I fail to
understand what deponent is saying when he alleges that proceedings

in the Magistrate's Court are not recorded. Deponent is amazing. Just
how will he explain the fact that an appeal was noted from
the
decision of the Magistrate who discharged me until the

20

Court of
Appeal without the record. (If Magistrate's Court proceedings are not
recorded).

11.

But what
is important above all is that the deponent exercised the decision to
select a forum when the matter was tried in the Magistrate's
Court
initially. He cannot re-visit that, worst of all denigrating the
Court's reputation in the process. The matter is now in
the hands of
the Court which have directed its future course.

AD
PARAGRAPH 6 THEREOF:

Surely I
was entitled to know why deponent was rudely changing a form when all
circumstances clearly warranted the matter to proceed
in the
Magistrate's Court. Lack of transparency on his part smacks of mala
fides

On the
papers before me 1 am satisfied that this application basically calls
for a review of the decision of the first respondent.
It is therefore
necessary to now refer to various constitutional and statutory
provisions that have a bearing on this application.

21

The
powers of the Director of Public Prosecutions (the DPP) are spelt out
in the Constitution of Lesotho as follows:

"Director
of Public Prosecutions

99. (L)
There shall be a Director of Public Prosecutions whose office shall
be an office in the public service.

(2) The
Director of Public Prosecutions shall have power in any case in which
he considers it desirable so to do —

(a) to
institute and undertake criminal proceedings against any person
before any court (other than a court-martial) in respect
of any
offence alleged to have been committed by that person;

(b) to
take over and continue any such criminal proceedings that have been
instituted or

22

undertaken by any other person or authority; and

(c) to discontinue at any stage before judgement is delivered any
such criminal proceedings instituted or undertaken by himself
or any
other person or authority.

(3) The powers of the Director of Public Prosecutions under
subsection (2) may be exercised by him in person or by officers
subordinate
to him acting in accordance with his general or special
instructions.

(4) The powers conferred on the Director of Public Prosecutions by
subsections (2)(b) and (c) shall be vested in him to the exclusion
of
any other person or authority except the Attorney-General:
Provided.......

(5) .............................................................."

23

Section
98(2) of the Constitution provides that it shall be the duty of the
Attorney-General to:

"(a) exercise ultimate authority over the Director of Public
Prosecutions.",

and section 77(2) vests the power solely in the Director of Public
Prosecutions to institute any prosecution in the High Court
of any
person:

"....who sits or votes in either House of Parliament knowing or
having reasonable grounds for knowing that he is not entitled
to do
so ...."

The Act also spells out the powers of the DPP in section 5 as
follows:

"A. Director of Public Prosecutions

5. The Director of Public Prosecutions may in any case in which he
considers desirable so to do -

(a) institute and undertake criminal proceedings against any person
before any court (other than a court-martial) in respect of
any
offence alleged to have been committed by that person;

(b) take over and continue any criminal proceedings which have been
instituted or undertaken by any other

24

person or
authority including any proceedings instituted before the
commencement of this Act; or (c) discontinue in writing at any
stage
before judgment is delivered any criminal proceedings instituted or
undertaken by himself or other person or authority."

Section 2
of the Criminal Procedure and Evidence (Amendment) (No 2) Act 1984
deleted both subsections (3) and (5) of section 5 of
the Act and
substituted the following for subsection (3)-

"(3)
In the exercise of the powers vested in him by section 5, the
Director of Public Prosecutions shall be subject to the
direction and
control of the Attorney-General. Provided that:

1. where
   any other person or authority has instituted criminal proceedings,
   nothing in this subsection shall prevent the withdrawal
   of those
   proceedings by or at the instance of that person or authority and
   with leave of the court; and

   
   

2. nothing
   in this subsection precludes a court from exercising jurisdiction in
   relation to any question whether the Director of
   Public Prosecutions
   has exercised his functions

   
   

25

under
this subsection in accordance with law", (my emphasis)

The
Constitution provides in Part 2 thereof for the establishment of the
High Court and its powers are spelt out in section 119(i)
as follows:

"119(i) There shall be a High Court which shall have unlimited
original jurisdiction to hear and determine any civil or criminal

proceedings and the power to review the decision or proceedings of
any subordinate or inferior court, court-martial, tribunal,
board or
officer exercising judicial, quasi-judicial or public administrative
functions under any law and such jurisdiction and
powers as may be
conferred on it by this Constitution or by or under any other law".
(again my emphasis)

It is crystal clear, in my opinion based on the passages I have
underlined in the two provisions quoted above, that any decision
of
the Director of Public Prosecutions in the exercise of his functions
is reviewable.

26

In the
concluding paragraph of respondent's heads of argument Mr Molyneaux,
on behalf of the DPP says:

"what the applicants are contending for is the right to choose
the Court before which they are to be heard. They have no such

right."

The
questions whether or not the applicants have or do not have such a
right need not be decided in this application since the applicants

have abandoned any reliance on any Constitutional issue. However,
what I understand the applicants to be doing is to exercise a

statutory right to raise the question whether in the circumstances of
their case, they are before the proper Court. That right
is conferred
first and foremost, it would appear to me, by section 162(2)(e) of
the Act which says an accused person may plead:

"(e) that the Court has no jurisdiction to try him for the
offence;"

Next one
goes to section 146 which provides: (To repeat the provisions
thereof)

"C.
General for all Courts.

146. (1)
If on the trial of a person charged with an offence before any court
it appears that he is not properly

27

triable
before that court, he is not by reason thereof entitled to be
acquitted, but the court may, at the request of the accused,
direct
that he be tried before some proper court and may remand him for
trial accordingly.

(2) If
the accused does not make the request referred to under sub-section
(1) the trial shall proceed and the verdict and judgment
shall have
the same effect in all respects as if the court had originally had
jurisdiction to try the accused.

(3) This
section shall not affect the right of the accused to plead to the
jurisdiction."

The
mechanism for doing what section 146 prescribes is provided in
section 160, which reads:

"160.
(1) When the accused intends to apply to have a charge quashed under
section 159, or to except or to plead any of the
pleas mentioned in
section 162, except the plea of guilty or not guilty, he shall give
reasonable notice (regard being had to the
circumstances of each
particular case) –

28

1. to
   the Director of Public Prosecutions or his representative if the
   trial if before the High Court; or

   
   

2. to
   the public prosecutor if the trial is before a subordinate court;
   or

   
   

3. when
   the prosecution is private, to the private prosecutor, stating the
   grounds upon which he seeks to have the charge quashed
   or upon
   which he bases his exception or plea."

   
   

The
decision of first respondent which is challenged in these proceedings
was made as a consequence of the upholding of respondent's
appeal to
the High Court against the Magistrate's favourable ruling on the
applicants' application in terms of section 175(3) of
the Act. In
upholding the appeal the High Court ordered as follows:

"The appeal is allowed therefore and the acquittals of both the
list and second respondents are set aside. At this stage,
the learned
trial magistrate having made her findings as to credibility, I
consider that it would not be in the interests of justice
to remit
the case to the court a quo for continuation

29

of trial. Instead I order that both respondents be tried de novo."

The Court
of Appeal ruled as follows:

1. The
   appeal noted against the judgment of the High Court as per the
   notice of appeal dated 19th August 2004 is struck from the
   roll. The
   order upholding the appeal from the Magistrate's Court was not an
   order that could be appealed to this Court.

   
   

2. The
   application for leave to appeal dated 12th of October 2004 is
   refused. The order of the High Court that the trial should proceed

   de novo before a different judicial officer was proper, and in the
   circumstances of this case, including the considerations raised
   in
   the application for leave to appeal, required by the interest of
   justice."

   
   

I turn
now to consider the submissions of counsel. Mr Sello who led the team
of lawyers representing the applicants argued, in essence,
that the
DPP in indicting the applicants for trial before the High Court, has
"completely misread the provisions of the Criminal
Procedure and
Evidence Act and acted under the wrong section to

30

wit
section 5" In making this submission Mr Sello referred to Union
Government v Union of Steel Corporation (SA) Ltd 1928 AD
220 where at
234 Stratford J.A. said:

"If a discretion is conferred by statute upon an individual and
he fails to appreciate the nature of that discretion through

misreading the Act which confers it, he cannot and does not properly
exercise that discretion."

Counsel
argued that the DPP should have acted under section 92(1) of the Act.
This section provides that:

"92. (1) Except as provided for by section 144 no person shall
be tried in the High Court for any offence unless he has been

previously committed for trial by a magistrate, whether or not the
committal was on the direction of the Director of Public Prosecutions

under the powers conferred by section 90 (1) (c), for or in respect
of the offence charged in the indictment, but in any case in
which
the Director of Public Prosecutions has declined to prosecute, the
High Court may, upon the application of any private prosecutor

referred to in section 12 and 13, direct any magistrate to take a
preparatory examination against the person accused."

31

The
submissions I am dealing with now were made in writing before further
affidavits were filed in the matter. (I will turn to those
affidavits
herein below). Mr Sello's argument was that only the Magistrate has
the powers to commit a person for trial and that
power is not vested
in the DPP; he says:

"It is for this reasons that in terms of section 90 (1)(e) where
the Magistrate has discharged an accused person but on consideration

of the evidence, the Director of Public Prosecutions considers that
there is enough evidence the latter remits the matter to the

Magistrate with the direction that accused be committed for trial.
The Director of Public Prosecutions does not do so himself."

The crux
of Mr Sello's argument was that the Director in his answering
affidavit has not said he invoked the provisions of section
144 of
the Act. The section reads:

"144.
(1) Whenever—

1. in
   the opinion of the Director of Public Prosecutions any danger of
   interference with or intimidation of witnesses exists; or

   
   

32

2. the
   Director of Public Prosecutions considers it to be in the interest
   of the safety of the State or in the public interest,

   
   

he may
direct that any person accused of having committed any offence be
tried summarily in the High Court without a preparatory
examination
having been instituted against him."

This
provision is very important. It authorizes a departure from the
provisions in the Act extensively dealing with preparatory

examinations - a sine qua non to all prosecutions even in the High
Court. The prerequisites for exercising this power are spelt
out. The
detailed provision of the Act as to preparatory examinations
underline the importance of the fact that the Crown must
establish a
prima fade case before dragging a person to court for trial. Even in
jurisdictions where the procedure has by and large
fallen into
disuse, procedural mechanisms are in place to meet that principle.
There can be no gainsaying the fact that this principle
and the
assurance that a person is tried before a proper tribunal are an
important element of a fair trial as guaranteed by the
Constitution.

33

Part V11
of the Act contains several sections starting from section 60 and
ending at section 98, but section 92 caps it all by stressing
that,
except as provided in section 144, "no person shall be indicted
in the High Court .... unless he has been previously
committed for
trial by magistrate..."

In the
circumstances of this case section 144, I think, aught to be read in
conjunction with section 8 of the High Court Act which
reads as
follows:

"8.
(1) The High Court shall be a court of appeal from all subordinate
courts in Lesotho with full power –

1. to
   reverse and vary all judgments, decisions and orders, civil and
   criminal, of any of the subordinate courts;

   
   

2. to
   order a new trial of any cause heard or decided in any of the
   subordinate courts and to direct, if necessary, that such new
   trial
   shall be heard in the High Court." (my emphasis)

   
   

But
before considering the effect of these provisions in detail I must
also refer to the submissions of counsel for the first respondent.
In
his first heads of argument Mr Molyneaux squarely

34

relies on
section 5 of the Act as read with section 99 of the Constitution.
After stating that the High Court has jurisdiction to
hear a charge
brought against the applicants, he goes on to say:

"4.1.4
Moreover, the Director of Public Prosecutions (First Respondent) is
clothed with the discretion as to which Court before
which an accused
person is to be brought, In this regard, see section 5 of the
Criminal Procedure and Evidence Act, 1981 and section
99 of the
Constitution which reads as follows:

1. ...

   
   

2. The
   Director of Public Prosecutions shall have power in any case in
   which he considers it desirable so to do –

   
   

1. to
   institute and undertake criminal proceedings against any person
   before any Court (other than a Court-Martial) in respect
   of any
   offence alleged to have been committed by that person;

   
   

2. ...

   
   

3. ..."

   
   

4.1.5 The
power accorded to the Director of Public Prosecutions as set out in
section 99(2)(a) is also

35

not "...
subject to the direction or control of any other person or authority"

Section
99(6) of the Constitution

4.1.6 It
is accordingly submitted that the Constitution itself provides the
First Respondent with the power to indict the Applicants
in the High
Court and affords the High Court jurisdiction to hear the case.
Accordingly, the decision to indict in the High Court
cannot be
faulted on the grounds that it is not in accordance with powers of
the High Court."

In his
supplementary heads of argument he states: "The Crown contends
that:

3.1
Sections 5 and 144 of the Criminal Procedure Act empower the Director
of Public Prosecutions to have the accused tried summarily
in the
High Court without a Magistrate having committed him fro trial.

3.2 As to
the conditions which must exist for the DPP to so direct, one of
those is that the DPP considers it in the public interest
to do so.

36

3.3 The
DPP has stated that, when he indicted the accused in the High Court,
he relied upon the powers afforded to him in section
5 of the Act. In
the Supplementary Opposing Affidavit, he confirms that he acted in
terms of section 5 as read with section 144.

Supplementary
Opposing Affidavit, par 5, p. 26.

3.4 In
the light of the decision by the DPP as well as what is set out in
the judgment of the Court of Appeal in which that Court
stressed how
it was in the interest of justice for the matter to be heard de novo,
it is clear that the provisions of section 144
do apply in this case,
and that it was in the public interest for them to be charged in
another Court, which the DPP decided should
be the High Court."

Counsel
still contends that the decision of the Director is not reviewable.
He states, however that:

"... if the Crown is incorrect on this, it is respectfully
submitted that a review of the discretion exercised by the DPP
will
show that the DPP has acted in terms of the law, especially section
144 ... for reasons set out in the Supplementary Opposing
Affidavit
he acted reasonably, and

37

there is no evidence that he acted mala fide or from ulterior motive
or failed to apply his mind to the matter."

In
further submissions on behalf of applicants, Mr Teele, assisting
Senior Counsel, drew attention to a passage in Anisminic Ltd
v The
Foreign Compensation Commission and Another [1969] 1 ALL Er 208 (HL)
where Lord Ried considered whether the court's jurisdiction
was
ousted by a provision that said:

"The determination by the Commission of any application made to
them under this Act shall not be called into question in ay
court of
law."

In his
consideration His Lordship went on to say at p 213H - 214B: "But
there are many cases where, although the tribunal had
jurisdiction to
enter on the enquiry, it has done or failed to do something in the
course of the enquiry which is of such a nature
that the decision is
a nullity. It may have given its decision in bad faith. It may have
made a decision which it had no power
to make. It may have failed in
the course of the enquiry to comply with the requirements of natural
justice. It may in perfect
good faith have minconstruced the
provisions giving it power to act so that it failed to deal with

38

the
question remitted to it and decided some question which was not
remitted to it. It may have refused to take into account something

which it was required to take into account. Or it may have based its
decision on some matter which, under the provisions setting
it up, it
had no right to take into account ... If it is entitled to enter into
the enquiry and does not do any of those things
which I have
mentioned in the course of the proceedings, than its decision is
equally valid whether it is right or wrong subject
only to the power
of the court to correct an error of law." (See Lord Denning -
The Discipline of Law pp 106 - 108) Mr Teele
concluded that the DPP
misconstrued the provisions "pursuant to which he has to
exercise his powers". Mr Sello in his
oral submissions put
emphasis on the words "if necessary" which appears in
section 8(l)(b) of the High Court Act, and
argued that what the DPP
purported to do in charging the applicants before the High Court, was
an attempt to usurp the power of
the High Court, meaning to say, as I
understood him, that the High Court had already decided that the
applicants would be tried
in the magistrate's court by not directing
that they be tried before the High Court, which it could have done if
'if necessary'.

39

As
against these arguments, Mr Molyneaux argued that both the High Court
and the Court of Appeal left it to the DPP to exercise
his discretion
as to the court before which the applicants should be tried, and that
the DPP rightly decided in terms of sections
144 and 5 of the Act.

I proceed
to examine these opposing contentions. It will be noted that in his
original opposing affidavit the Director of Public
Prosecutions does
not say he relied on section 144 of the Act. He says at paragraph 5:

"Secondly, this application calls into question my powers as
Director of Public Prosecutions as provided in Section 5 of the
said
Act. It is my submission that by indicting the two applicants as I
did, I acted within such powers." (my underlining)

It is
only in the supplementary opposing affidavit that the DPP purports to
have relied on section 144 in addition to section 5
of the Act. It is
trite law that in applications on notice of motion a party must make
his case in his founding affidavit. The
rule, it would seems to me,
applies equally to the respondent in such applications, namely that
the opposing affidavit is the foundation

40

of the
defence case and it is there that a party must establish his defence.
In this case the DPP has of course taken advantage
of the questions I
raised in the request for further submissions, to file the
supplementary affidavit in order to advance the argument
now based,
in addition, on section 144 of the Act. No application for the Court
to disallow the supplementary opposing affidavit
was made by the
applicants. Counsel for applicants confined themselves to attacking
the claim that the DPP's decision was based
on section 144, as an
afterthought. First applicant infact does so in an affidavit in
answer to the DPP's supplementary affidavit.
I think it is proper, in
these circumstances, to have regard to the supplementary opposing
affidavit and of course the reply thereto.

The
reason now advanced by respondent of deciding as he did in terms of
section 144 is that it is in the public interest. Mr Molyneaux

further argued that the "order of Culliuan AJ must be read in
conjunction with the judgement of the Court of Appeal, that
the trial
should commence de novo before a different court". He goes on to
say that there was no specific injunction that
the matter be heard in
the magistrate's court, so "there was no limitation of the first
respondent's power, to decide in which
'different court' the case
should be tried."

41

I pause
briefly to say that the phrase used in the Court of Appeal's judgment
is 'de novo before a different judicial officer'.
While it may be so
that the High Court did not limit his discretion, various provisions
of the Act, and the High Court Act, make
it clear that the DPP may
not exercise his powers to indict persons for summary trial before
the High Court in his absolute discretion.
And as Baron, J.A. said in
Commissioner of Police v Wilson 1981(4) SA 726 (ZAD) at 742 E:

"... the authorities are clear that in construing discretionary
powers given to Ministers and other high ranking persons the
Courts
take into account that the legislature expects those powers to be
exercised responsibly."

In the
same vein, Cameron J, in Realty Homes (Pty) Ltd v Premier of The PWV
Province 1995 CLD 785 (W), referred to the precept embodied'
in
Schreiner, J's judgment in Mustapha and Another v Receiver of
Revenue, Lichtenburg 1958 (4) SA 434, as unassailable namely,
'that
all official action is subject to scrutiny for lawful authorization'.
In the context of this case I would add the phrase
'or on rational
grounds'.

42

I have no
doubt that Cullinan, A.J. considered the provisions of section 8(1)
(b) of the High Court Act and found it not necessary
to "to
direct ... that such new trial shall be heard in the High 'Court"
The Learned Acting Judge said, to repeat, at
this stage, the learned
trial magistrate having made her findings as to credibility, I
consider that it would not be in the interest
of justice to remit the
case to the court a quo for continuation of trial'. Secondly at the
hearing of the appeal, with both sections
144 of the Act and 8(l)(b)
of the High Court in mind, it was open to the Director of Public
Prosecutions at that stage to submit
that it was in the public
interest for the court to act in terms of section 8(l)(b) of the High
Court Act if the DPP was so minded
then. This consideration alone
fortifies the submission by applicants' counsel that reliance on
section 144 by the DPP was an after
thought.

The main
factors the DPP submits influenced his decision are as stated in his
supplementary opposing affidavit, and I quote:

"I
considered that it is in the public interest for the accused to be
tried in the High Court and for one or more of the following
reasons:

43

5.1 The
Court of appeal emphasized that it was in the interest of justice
that the accused be tried by another Court, not the court
which tried
them in the first instance. In my view the interests of justice are
the same as the public interest.

5.2 In
the light of the fact that a judge of the High Court has already held
that the Crown, in the previous hearing, had established
a prima
facie case against the accused, a Magistrate hearing the case might
well be influenced thereby. This would not be the case
if a Judge
were hearing the case. In addition, the 1st Accused is well know to
most Magistrates which might also cause the Magistrate
hearing the
matter to be influenced. The present Presiding Judge has no such
connection with the 1st accused.

5.3 There
would be no material prejudice to the accused by being indicted in
the High Court. Indeed it would lead to a more speedy
resolution of
the case, which would be in the interests of all concerned, and also
in the public interest. Furthermore, the proceedings
in the
Magistrate's

44

Court are
not recorded and this makes it more difficult to prepare a record for
appeal. The proceedings in the High Court are recorded."

These
reasons are sufficiently dealt with by first applicant in paragraph 9
and 10 of his affidavit filed in reply to first respondent's

supplementary affidavit, which, I have already quoted above. Suffice
it to repeat what Friedman AJA said in S v Somciza 1990(1)
SA 361(AD)
at p 366D:

"A magistrate is a trained judicial officer and he knows that he
must decide every case that comes before him on the evidence
adduced
in that case. See R v T 1953 (2) SA 479(A) at 483."

I
respectfully agree with that statement. That view was even more
forcefully expressed in R v T, supra where Contlivres C.J said
at 483
B - E:

"One cannot assume that there is a danger that trained judicial
officers will neglect their duties in performing their judicial

functions. One might as well contend, as pointed out by Mr. Lynn, for
the Crown, that if the magistrate had

45

recused
himself the case should not be tried by the assistant magistrate who
may be averse to giving a decision contrary to that
given by his
chief in the previous case. In the case of a trained judicial officer
the mere possibility of bias not based on a
previous extra-judicial
opinion in relation to the case he is going to try or on hostility or
relationship to or intimate friendship
with one of the parties or on
an interest in the case does not disqualify him from trying the case.
CF. Rex vMilne and Erleigh
(6), 1951 (1) S.A. 1 at p. 11 (A.D.). Then
it was contended that the magistrate's sense of fairness would revolt
against acquitting
the appellant after he had already convicted the
Native woman. Here again one cannot assume that the magistrate would
not in coming
to a decision in the case against the appellant have
regard only to the evidence led in that case and would not acquit the
appellant
if he thought that the evidence against him was
insufficient." (my emphasis)

As to the
plea that a summary trial in the High Court would lead to a more
speedy resolution of the case in the interest of all
concerned and
also in the public interest, the answer is that a preparatory
examination must have been held before the charge was
preferred
against the applicants in the court a quo; there is no

46

suggestion
that the procedure of holding such an examination need to be
repeated.

The
reasons advanced by the DPP for his decision to indict the applicants
before the High Court are not in my opinion, rational
grounds for
such a decision. Furthermore, I find that in advancing these two
reasons in paragraph 5.2 and 5.3 of his supplementary
opposing
affidavit the DPP based his decision on matters which under section
144 he had no right to take into account. As to public
interest
outside paragraphs 5.2 and 5.3, I do not see any other ground on
which the DPP considered it in the public interest or
in the interest
of justice that the applicants should be tried before the High Court
rather than in the Magistrate's Court. As
Lord Denning said in his
book in the passage referred to above. The DPP acted on no evidence
to enable him to exercise his discretion
properly.

For the
reasons I have addressed in the body of this judgment I do not find
it necessary to deal with the question whether or not
the applicants
had any legitimate expectation that they would be tried de novo in
the Magistrate's Court.

47

The
applicants, unlike the DPP, did not ask specifically for an order as
to costs should they succeed; nor did Counsel appearing
on their
behalf make any submission in writing or orally in this regard. The
matter in as sense is a res nova, and in my opinion
the DPP should
not be penalized with any order of costs for resisting the
application. Important principles of statutory interpretation
were
involved in the matter.

In the
result the application succeeds. I accordingly make the following
order:

1. That
   the criminal proceedings relating to the charge in CRI/T/150/04
   shall only be commenced before the Magistrate's Court of
   competent
   jurisdiction.

   
   

2. That
   there will be no order as to costs. MTAMBANENGWE, AJ

   
   

48

For
Applicants Mr. Sello K.C. Mr. Teele Mr. Sooknanan Mr. Phafane

For
Respondents Mr. Molyneaux

The
judgment of the Honourable Mr. Acting Justice S V Mtambanengwe read
and handed down to the parties by the Honourable the Chief
Justice.

ML.
LEHOHLA

CHIEF
JUSTICE

18-04-2005