CIV/APN/160/04
IN THE HIGH COURT OF LESOTHO
Held at Maseru
In the matter between:-PAUL MOSA MOSUOE APPLICANT
and
PRESIDENT - COURT MARTIAL 1ST RESPONDENT
COMMANDER - LDF 2nd RESPONDENT
MINISTER OF DEFENCE 3rd RESPONDENT
THE ATTORNEY GENERAL 4th RESPONDENT
JUDGMENT
CORAM : THE HON. MR JUSTICE S.N. PEETE
DATE : 12th SEPTEMBER 2007
Summary
Court-Martial - Absence without leave contrary to section 55 of the Lesotho Defence Force Act No.4 of 1996 — Applicant going on study in South Africa. Formal authority not granted despite admission to University.
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Where, the applicant, a soldier in the Lesotho Defence Force having
obtained an admission to pursue studies at Fort Hare in the Republic of South Africa had left the Barracks for his studies whilst
permission or authority for study leave had not been obtained or was not forthcoming.
Held— The court-martial was correct in finding that applicant's absence
without leave had been proved despite seemingly frustrating surrounding circumstances indicating prevarication and intransigence
on the part of the authorities.
On review, the court is only limited to the inquiry whether from the record
no substantial miscarriage of justice occurred. The question in casu being absence without leave and the applicant having elected not to give evidence controverting evidence case of that absence, there are no good reasons for disturbing the decision of the court-martial.
Introduction
1. This is an application made in terms of Rule 50 of the High Court Rules 1980 in which the Applicant sought an order couched thus:-
"1. That a Rule Nisi be issued returnable on the date to be determined by this Honourable Court, calling upon the Respondents to show cause (if any) why:
Ordinary rules pertaining to service of process should not be dispensed with due to the urgency hereof;
First Respondent should not be ordered to dispatch to this Honourable Court for review, a record of proceedings in R v MOSUOE with (14) days after receipt hereof;
The decision of First Respondent in the Case of R v MOSUOE should not be suspended pending correction, confirming and/or setting aside thereof;
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The proceedings in the aforementioned case in R v MOSUOE should not be reviewed, quashed, set aside and/or declared unlawful by this Honourable Court;
Respondents should not be ordered to reinstate Applicant herein to his former position at work;
Respondents should not be ordered to pay costs hereof only in the event of their opposition;
Applicant should not be afforded such further and/or alternative relief as this Honourable Court may deem fit and/or expedient in the circumstances.
2. That prayers 1 a, b, and c operate with immediate effect in the interim. "
Historical Background
2. That the hearing of this matter has protracted for so long is to be regretted — justice delayed is justice denied. This was due to unavoidable postponements and long submissions during the hearing.
3. Be that as it may, it is important to recount the historical background that preceded this application.
4. The Applicant had been employed as soldier in the Lesotho Defence Force (LDF) for over twenty years and was stationed at Ha Ratjomose Army Barracks - in the Transport Unit of the LDF.
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5. Sometime in January 2001 the Applicant applied for a study leave in order to pursue his legal studies at the University of Fort Hare in the Republic of South Africa.
6. What happened after this application is a matter of controversy but salient from the events is that the Applicant made an application
for admission at the University of Fort Hare in the Republic of South Africa and also for a scholarship at Manpower Secretariat.
7. The critical issue in this review is whether after when he had secured admission at the University of Fort Hare, the Applicant had also obtained authority for his study leave from the responsible authorities in the LDF; in other words which his proceeding to Fort Hare had been authorized or permitted by his superiors. This is principally a question of fact and fact only.
8. It is common cause that the applicant at the beginning of the 2001 academic year having received a letter of admission to University then proceeded to Fort Hare to begin his legal studies. When his absence was noticed he was taken to have been absent without leave (AWL) and he was later arrested at the offices of the Right Honourable the Prime Minister where he had sought refuge and succour. He was later court-martialled for this conduct.
9. It is the proceedings of the court martial that are being sought to be reviewed. In the court martial convened by the LDF Commander,
the charge sheet preferred seven counts - counts one to four are for
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absence without leave on different periods starting from 2nd February 2002 to 30th September 2003 when he was apprehended at the offices of the Senior Private Secretary to the Right Honourable The Prime Minster. Count Five related to resisting arrest and threatening to shoot military police officers and himself and other counts related to his flouting military complaint procedure thus conducting himself in a manner prejudicial to good order and military discipline. All these are chargeable and prosecutable under the Lesotho Defence Force Act No.4 of 1996, and 1998 Regulations.
Interim Order 2004
10. On the July 2004 Majara J. granted an interim order couched thus:
"A Rule Nisi be issued returnable on the 16th day of July 2004 at 9.30 a.m calling upon the Respondents to show cause (if any) why:-
(a) Ordinary rules pertaining to service of process be dispensed with to the urgency hereof;
(b) First Respondent be ordered to dispatch to this Honourable Court for review, a review of proceedings in R v Mosuoe within (14) days after receipt hereof;
(c) The decision of First Respondent in the case of R v Mosuoe be suspended pending correction confirming and/or setting aside thereof;
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(d) The proceedings in the aforementioned case in R v Mosuoe be reviewed, quashed, set aside and/or declared unlawful by this
Honourable Court.
(e) Respondents be ordered to reinstate Applicant herein to his former position at work;
(f) Respondents be ordered to pay costs hereof only in the event of their opposition;
(g) Applicant be afforded such further and/or alternative relief as this Honourable Court may deem fit and/or expedient in the
circumstances.
2. That prayers 1 (a), (b) and (c) operate with immediate effect in the interim."
11. The Respondents represented by the Attorney General deny that applicant was ever formally granted leave to study in the Republic of South Africa and allege that his absence from the Barracks was without leave.
12. Court Martial Proceedings
It appears that the first court-martial was presided by the now late Colonel Polisa (convened on 3rd December 2002) but the proceedings
thereof had been dissolved by Commnder of the LDF Lieutenant General Mosakeng on the 16th October 2003 due to the untimely death of the Court martial President Colonel Polisa - the reason being that the death of the Colonel had reduced the number of members of the court- martial to below the legal minimum. Much about this later.
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13. On the 16th October 2003 the LDF Commander re-constituted the court-martial under the presidency of Lt. Col. Lefa, the other
members being: Major Mohlahatsa, Major Moqhotsooa, Lt. Mohololi, 2nd Lt. Maboloka, Captain Peete, Lt. Matlali, 2nd Lt. Makamase. Lt. Mathatjane was appointed Judge Advocate.
14. The court-martial proceedings duly began at the Airwing Barracks of the LDF on the 21st October 2003. The Applicant was represented by Advocate Mpaka.
15. The perusal of this record indicates that all necessary steps were taken before the court martial proceedings began in earnest that is the applicant was asked whether he had any objection to being tried by the panel of the court martial. This was to ensure
impartiality. Anyway no formal objections were tendered by the applicant's counsel.
16. Several prosecution witnesses were duly called and led by the prosecutor Private Mpanye. Each witness was cross-examined at length by the defence counsel Mpaka who also elected not to cross examine some.
17. The purport of the prosecution witnesses was to show that at the times or days material to the several counts, the applicant was absent without leave at the Barracks as alleged in the counts of the charge.
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18. It should be noted that the Lesotho Defence Force Act No.4 of 1996 creates an offence of being absent without leave (AWL) (sections 54 and 55). The applicant faced three counts in this regard.
19. He also was charged with having resisted arrest in contravention to section 69 of the Act and that he also sought refuge at the office of the Senior Private Secretary to the Right Honourable The Prime Minister without having first exhausting proper procedures and channels for the redress of wrongs as provided by Regulation 28 of Defence Force (Discipline) Regulations.
Court-martial verdicts
20. At the end of the Court martial proceedings, the Applicant was found guilty as follows
Count One - Absence without leave
- Guilty
Count Two - Absence without leave
Count three - Absence without leave
- not Guilty
Count Four - Absence without leave
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Count Five - Absence Without Leave
Count Six - Not Guilty
Count Seven - Guilty
Sentence: "The accused to undergo detention for a period of three months — less the time spent in custody and be discharged
with ignominy from the force ".
21. On the 12th day of February 2004 the Honourable Minister of Defence confirmed the court martial's decision but set aside the
sentence imposed by the court martial but exercised his powers and discretion and substituted a sentence of one month but retained
discharge with ignominy from the LDF.
22. The matter is before this court on review as expatiated in paragraph 1 (supra).
Constitution of the Court-martial
23. Be that as it may, when the court-martial proceedings presided by Lt. Col. Lefa began in earnest on the 21st October 2003 and the charges were read to the applicant who then pleaded not guilty thereto, the records indicates that no formal challenge to the constitution of the court was ever made by applicant at the start of the proceedings.
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24. I should at this point digress a bit and state the following: A court-martial is part of the Lesotho judiciary under section 118 of the Constitution and it adjudicates on matters military. It must be impartial and independent in the sense that no influence is to be brought to bear upon it when it discharges its judicial functions. Court-martial is subject to the Constitution, to the law and to the tenets of natural justice. A disciplined morale in the army is very necessary at all times and in all situations. The court martial is there to ensure there is rule of law in the army.
Local remedies — guaranteeing fairness impartiality and expedition - are provided for under Lesotho Defence Force Act 1996,
relevant Regulations and Rules of procedure. In all cases where a military offence has been committed, the defaulter must be subjected
to law without bias, discrimination, favour or prejudice. Every soldier must be treated with equality before the law and must enjoy
protection of that law in the fullest sense.
25. When this matter was argued before court, the Applicant had withdrawn his mandate from Advocate Mpaka and had elected to "row
his own boat" This he was entitled to do - but this resulted in many other collateral and peripheral issues being raised such as the propriety of the re-constitution of the court-martial after Colonel Polisa's untimely demise; also raised was the point that the record was incomplete or was inconsistent with Polisa's record. Although these could be well-taken points, the review now before this court is not premised on the omissions in the record or its
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defect. All what this court is enjoined under law to inquire into is whether the record of Colonel Lefa's court-martial accords with substantive justice - that is, was the C court-martial independent and impartial? Was the applicant afforded opportunity to
cross-examine the prosecution witness? Were proceeding fair and just (see Makhele v Commander LDF - CIV/APN/169/99), were proper appellate procedures followed after the decision of the court-martial? It is not necessary to come to any definitive decision on these issues; all that is pertinent to the present inquiry is whether the court-martial was properly constituted or not and whether the evidence established applicant's guilt and were conducted with all fairness.
26. Several witnesses were called by the prosecution and these were fully cross-examined by the Applicant's counsel Advocate Mpaka — who at the end of the prosecution case made an application "for no case to answer" in terms of relevant rules of procedure. Well researched submissions were then made by the applicant's counsel and by the prosecution and the Court martial finally ruled-
"The court finds that there is a prima facie evidence against him."
27. Advocate Mpaka "then closed his case without leading evidence". This was a considered step or decision on the part of counsel for the applicant. Having elected to close his case without leading evidence, the applicant cannot now say his case has been
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misconceived. Indeed the Court of Appeal of Lesotho decided in one case where on a charge of theft, the accused had made an application
for discharge at the end of the crown case and it being unsuccessful, accused then closed his case that where there is a prima facie case established by the crown, the prima facie case becomes conclusive.1
28. The court-martial was primarily constituted to determine the issue of absence without leave and other charges as preferred. The court martial also had to determine whether study leave was granted by the relevant authorities justifying applicant's absence from the Barracks.
29. The Applicant does not deny that at the relevant dates he was not present at the Barracks. He admits that he was then away at Fort Hare in the Eastern Cape pursuing his legal studies. He says he had been granted leave. It seems the question at issue was whether infact the applicant had been granted leave. Evidence of Second Lieutenant Ranthiti is very clear that Applicant "was not permitted to go to school" and that there appeared to have been a rather bitter misunderstanding between Colonel Lesitsi and the Applicant over the issue study leave; but that the applicant "was never released". In fact retired Colonel Lesitsi clearly stated -
"I did not release the accused to go to school. "
1 Lerato Mahanye vs Rex - 1999-2001 LLR24(CA)
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This was confirmed by the Colonel when he was giving evidence on this particular issue before this court even explaining that at the material period all study leaves had been put on hold (suspended for the time being).
30. This court sitting on review is not charged with the duty of determining such issues of fact; that was the primary function of the court-martial which heard witnesses called by the prosecution to establish the Applicant's unauthorized absence (AWL); that the Applicant, represented by the counsel of calibre, elected not to controvert these factual allegations that he absented himself without leave, sowed seeds of destruction to his own case.
31. Whether permission was unfairly or capriciously denied or refused is not in here issue - because internal or local remedies to redress such grievances are available in the legal infrastructure of the LDF. The court can but sympathise with the Applicant if the necessary permission was refused or sabotaged without good reasons.
32. I reiterate whether such consent was given was basically a question of fact to be determined by the court martial. It is not a matter for this court on review.
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33. A letter authorizing study was never presented at the court martial . What seems to have occurred is that once he got his letter of admission from the University of Fort Hare, the Applicant, still having not received proper authority or consent to go on study leave, immediately packed his bags and left for the University, perhaps upon belief that the letter of admission would finally convince his superiors to relent. Reticent bureaucracy in the process was perhaps unbearable to the applicant. But military discipline is, unlike in other institutions, premised upon orders, authority and obedience as the ethos.
34. The fact that the Applicant voluntarily reported on duty on every occasion when he was on vacation in Lesotho does not retract
from the inference that when he attended his law classes at Fort Hare University, the Applicant had not secured the necessary authority;
the fact that Manpower also granted Applicant scholarship does not per se indicate that authority or that consent had been obtained.
35. This court even called retired Colonel Lesitsi and Mr Mabote, the Director of Manpower Secretariat, to ventilate the issue of authority; both were candid and were ad idem that when the applicant was granted scholarship no letter authorizing him to go on study leave had been issued or received by the Manpower Secretariat.
2 See also the case of Boholo v Compol 1999-2001 870
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36. In a matter of factual dispute as in casu where the prosecution produced prima facie evidence that a certain state of affairs existed e.g. no authority to proceed on study leave had been granted for a study leave for studies and the legally represented accused elects on his own free will not to give evidence to controvert these allegations, the trial court-martial was entitled, as it did, to take the prima facie case as being conclusive. That is the law. The matter cannot legitimately be re-opened on review to investigate the matter afresh. It was only an indulgence afforded the applicant that this court went beyond the parameters of the record and re-visited the matter. Much latitude and benevolence was granted applicant at the hearing because the applicant truly seems to be a very conscientious person who was seemingly brazenly treated despite his over-zealousness to pursue his legal studies; he alleges he was being thwarted and frustrated by the bureaucratic intransigence. Perhaps received a raw deal at the hands of his susperior who frustrated his pursuit for further studies. A bitter fact that stands uncontroverted is that he absented himself from the Barracks and proceeded to the University of Fort Hare to pursue his studies when he had not obtained the necessary permission. His motive was indeed very noble and laudable but lo! It infringed his military duties.
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The application is therefore dismissed with costs.
S.N. PEETE
JUDGE
For Applicant : In person
For Respondents : Mr Molokoane
