C of A
(CRI) No. 15/06

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

MILLENIUM
TRAVEL & TOURS FIRST APPELLANT

JAYAKRISHNAN
APPUTATTAN NAIR SECOND APPELLANT

MAMOLISE
MARY KAMOHI THIRD APPELLANT

and

THE
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

Held in
Maseru on 2nd April 2007

CORAM;

Steyn, P

Ramodibedi,
JA

Grosskopf,
JA

Smalberger,
JA

Melunsky,
JA

SUMMARY

The appellants were indicted in a summary trial in the High Court on
numerous counts of fraud and bribery. They raised two points
in
limine. The first related to the alleged improper exercise by the
respondent of his discretion in terms of section 144 of the
Criminal
Procedure and Evidence Act 1981 ("the Act"); the second
alleged that the appointment by the respondent of outside
counsel to
conduct the proceedings, in terms of section 6(2) of the Act, was in
conflict with the provisions of section 99 of the
Constitution. The
court a quo dismissed both points in limine. Held that the dismissal
of the first point in limine was not subject
to appeal at this stage.
Held further that the dismissal of the second point in limine,
involving as it did the interpretation
of a constitutional provision
in respect of which there had been a final decision, was appealable
in terms of section 129(1)(a)
of the Constitution. Appeal

2

considered.
Held that the provisions of section 6(2) of the Act are not
inconsistent with section 99 of the Constitution. Appeal
accordingly
dismissed.

JUDGMENT

SMALBERGER,
JA

1. The
   three appellants stand indicted in a summary trial in the High Court
   on 258 counts of fraud and four counts of bribery. In
   respect of the
   latter counts they face alternative charges of contravening section
   22 (2) of the Prevention of Corruption and
   Economic Offences Act 5
   of 1999. The indictment comprises 64 pages, relates to events
   spanning a number of years and involves
   amounts totaling more than
   two million maloti.

   
   

2. After
   several postponements the trial was scheduled to proceed before
   Mofolo J. In terms of section 6 (2) of the Criminal Procedure
   and
   Evidence Act 9 of 1981 ("the Act") the respondent had
   retained outside counsel to prosecute at the trial. Before
   the
   commencement of the hearing the appellants, through their counsel,
   raised two points in limine. In broad outline they were:

   
   

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1. That
   the respondent failed to exercise, alternatively did not properly
   exercise, his discretion under section 144 of the Act when
   directing
   that a summary trial be held.

   
   

2. That
   the appointment of outside counsel was improper and unconstitutional
   in that section 6 (2) of the Act is in conflict with
   section 99 of
   the Constitution of Lesotho.

   
   

3. On
   18 August 2006 Mofolo J handed down a comprehensive written ruling
   in which he dismissed the points taken in limine. The appellants

   subsequently noted an appeal against his ruling. The Grounds of
   Appeal read as follows:

   
   

"1. The Court erred in finding that the point was argued that
section 144 of the CP and E Act (Act 1981) finds no application:
what
was argued is the fact that the Crown did not establish a factual
basis to invoke the provisions of section 144(1)(b) 'in
the public
interest'.

2. The
   Court erred in finding that because of the provisions of section
   144(1) (b) 'in the public interest1 a summary trial in the
   High
   Court, was justified, without the holding of a preparatory
   examination.

   
   

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2. The
   Court erred, in holding as it did, that the Director of Public
   Prosecutions, was in law permitted to delegate his prosecutorial

   power, to officers other than those subordinate to him as
   contemplated by section 99 of the Constitution of Lesotho.

   
   

2. The
   learned Judge a quo erred, and/or misdirected himself in holding as
   he did, dismissing the contention that section 45 of Act
   No 5 of
   1999 was invalid without first hearing and/or inviting argument
   thereon. The learned Judge ought to have invited both
   parties to
   address him on the validity or otherwise of the said section if he
   was to make a decision thereon."

   
   

4. The
   first two grounds of appeal relate to the first point in limine: the
   third ground relates to the second point in limine; and
   the fourth
   ground arises from what it is claimed was held by Mofolo J during
   the course of his judgment. It is not clear that
   he made such a
   ruling. In any event it is strictly speaking extraneous to the
   points raised in limine - and being no more than
   a ruling, not final
   in effect and therefore open to reconsideration.

   
   

4. In
   terms of section 129 (1) (a) of the Constitution an appeal shall lie
   as of right to the Court of Appeal from decisions of the
   High Court
   in respect of, inter alia, "final decisions in any civil or
   criminal

   
   

5

proceedings on questions as to the interpretation of this
Constitution." The second point in limine (and therefore the
third
ground of appeal) raises a constitutional issue - the proper
interpretation of section 99(2) and (3) of the Constitution and
whether
section 6(2) of the Act is in conflict with those provisions.
The ruling by Mofolo J in respect of the second point in Mine has
the
attributes of a final decision (cf S v Western Areas Ltd And Others
2005 (5) SA 214 (SCA) at 224 (para 20)). It is therefore
appealable
in terms of section 129(1) (a) of the Constitution. Mr. Dickson, for
the respondent, conceded this.

6. By
   contrast, the first point in limine does not in my view raise a
   constitutional issue or involve an interpretation of the

   Constitution (nor do the grounds of appeal associated therewith, or
   the fourth ground of appeal). The appellants are of course
   bound by
   their grounds of appeal. See in this regard Rule 4 (5) of the Court
   of Appeal Rules, 2006 published as Supplement No.2
   to Gazette No.55
   of 17 November, 2006 which provides as follows:

   
   

6

"The appellant shall not argue or rely on grounds not set forth
in the notice of appeal unless the Court grants him leave
to do so.
The Court, in deciding the appeal, may do so on any grounds whether
or not set forth in the notice of appeal and whether
or not relied
upon by any party."

6. In
   any event the exercise by the DDP of his discretion under section
   144 of the Act to order a summary trial cannot per se constitute
   an
   infringement of the appellants' right to a fair trial. A preparatory
   examination is not an essential pre-requisite for a fair
   trial;
   equally a summary trial cannot per se be labeled as unfair. The
   requirements essential for a fair trial enshrined in section
   12 of
   the Constitution, including the right to be informed with sufficient
   particularity of the charge; the right to be given
   adequate time and
   facilities to prepare a defence; the right to a fair hearing within
   a reasonable time by an independent and
   impartial court; the right
   to legal representation; and the right to challenge and adduce
   evidence, are all rights that have
   to be respected and catered for
   in a summary trial. The question of whether or not there will be a
   fair trial, in the absence
   of any allegation of pre-trial
   irregularities, is not

   
   

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a matter which can be determined in advance of the actual
proceedings; nor can the question of whether there has been a fair
trial
normally be answered until after the conclusion of the trial
proceedings. Everything will depend upon the circumstances of the
particular case (cf Shabalala and Others v Attorney-General,
Transvaal, and Another 1996(1) SA 725 (CC) at 743-4 (paragraphs 37

and 38)).

6. I
   proceed to consider whether this Court has jurisdiction to entertain
   an appeal against the dismissal of the first point in limine.
   Before
   doing so it should be noted that the first point in limine was
   directed against the exercise by the DPP of his discretion,
   in terms
   of section 144 of the Act, to order, in the public interest, that
   the appellants be tried summarily in the High Court.
   Mofolo J held
   that the DPP had exercised his discretion in that regard in a proper
   manner. In my view any challenge directed
   at the exercise of the
   DPP's discretion should have been by way of appropriate review

   
   

8

proceedings. It is inapposite to raise a review issue by taking a
point in limine.

6. The
   question of when appeals to this Court are competent was dealt with,
   but not finally decided, in Mda and Another v The Director
   of Public
   Prosecutions C of A (CRI) No. 10 of 2004 (unreported) ("Mda's
   case"). As pointed out in Mda's case, as this
   Court is governed
   by Statute its jurisdiction is limited to those matters which are
   prescribed by law. This raises the fundamental
   question, as stated
   in paragraph 9 of Mda's case, "whether this Court has the
   jurisdiction (power) to hear an appeal which
   is not directed at
   challenging a conviction or acquittal of an accused, or an order
   which is made consequent upon a conviction
   such as sentence, a
   forfeiture order, compensation order or the like."

   
   

6. The
   relevant statutory provisions in this regard have been set out and
   reviewed fully in Mda's case and there is no need to repeat

   
   

9

them. Two
provisions are of particular importance. The first is section 7 (1)
of the Court of Appeal Act of 1978 which provides:

"Any person convicted on a trial by the High Court may appeal to
the Court [of Appeal] on any matter of fact as well as on
any matter
of law."

The other
is section 15 of the Court of Appeal Act which deals with the right
of this Court to adjudicate upon a question of law
reserved by the
High Court and confines the powers of this Court to adjudicate upon
such question pursuant to a conviction.

11. The
    Court in Mda's case concluded (in paragraph 12):

    
    

"Prima facie therefore it would seem that this Court in a
criminal appeal has no power to adjudicate on any matter other than

issues that arise concerning or pursuant to a conviction or an
acquittal. However, this matter was not fully argued before us and

should therefore not form the basis for this judgment."

11. Apart
    from the statutory limitations placed on the jurisdiction of this
    Court, the prima facie conclusion reached is consistent
    with

    
    

10

the generally recognized principle that a criminal trial should not
be disposed of piecemeal. Thus it was said in Mda's case (paragraph

17):

"Adams and Wahlhaus and numerous subsequent decisions in the
South African courts have held that it is not in the interests
of
justice for an appellate court to exercise any power 'upon the
unterminated course of criminal proceedings' except 'in rare
cases
where grave injustice might otherwise result or when justice might
not by other means be attained' (Wahlhaus). In Adams the
Court of
Appeal held that as a matter of policy the courts have acted upon the
general principle that it would be both inconvenient
and undesirable
to hear appeals piecemeal and have declined to do so except where
unusual circumstances called for such a procedure
(per Steyn, CJ at
p. 763). The authorities on the point are legion."

(The
reference to Adams is to R v Adams and Others 1959 (3) SA 753 (A);
The reference to Wahlhaus is to Wahlhaus and Others v Additional

Magistrate Johannesburg and Another 1959 (3) SA 113 (A).)

11. The
    question of appealability was raised and argued before us in the
    present appeal. Nothing arose from the argument which in
    my view
    detracts from the correctness of the prima facie view

    
    

11

expressed in Mda's case that "this Court in a criminal appeal
has no power to adjudicate on any matter other than issues that
arise
concerning or pursuant to a conviction or an acquittal" (subject
of course to the provisions of section 129 of the Constitution

insofar as constitutional issues are concerned). That view falls to
be endorsed in the present matter as correctly reflecting the
legal
position.

11. In
    any event, even if the dismissal of the first point in limine had
    been appealable, it seems highly unlikely that the appeal
    could have
    succeeded. It is not disputed that the DPP had a discretion to order
    a summary trial if he considered it to be in
    the public interest to
    do so. The reasons advanced by him for considering it to be in the
    public interest were said to be, inter
    alia, the following:

    
    

1. "This
   is a complex commercial matter which in my experience is best suited
   for trial in the high court.

   
   

2. This
   case involves millions of Maloti of state funds and there is a
   genuine concern that such funds will not be recovered by reason
   of
   their for instance, being taken

   
   

12

out of the country. Any delays such as that occasioned by a
preparatory examination had to be avoided.

3. This
   case involves allegations of corruption against senior members in
   Government and it is in the interest of the public as well
   as the
   administration of justice that these allegations be ventilated
   properly and as soon as possible."

   
   

15. The
    reasons advanced by the DPP for the exercise of his discretion
    strike me as being both reasonable and rational having regard
    to the
    nature of the case against the appellants. There would seem to be no
    legitimate basis for concluding that there was a
    failure on his part
    to exercise his discretion properly. Nor would there appear to be
    any legal grounds on which either the court
    below, or this Court,
    could have interfered with the exercise of his discretion. However,
    it is not necessary to reach a final
    decision in this regard, and I
    refrain from doing so.

    
    

15. In
    support of his argument that the dismissal of the first point in
    limine was appealable, Mr. Engelbrecht (who appeared with
    Mr. Mosito
    for the appellants) referred us to the cases of S v De Beer

    
    

13

and Another 2006 (2) SACR 554 (SCA) and S v Mclntyre and Another 1977
(2) SACR 333 (T). De Beer's case is clearly distinguishable
from the
present matter. In that case there was a plea to the jurisdiction of
the High Court to try the offences alleged. The plea
was dismissed.
The Supreme Court of Appeal entertained an appeal against the
decision. In the course of its judgment the Court
said (at page 559):

"In the present case the appeal ought to be entertained at this
stage because it is clear that the Court has no jurisdiction
and also
because it is manifestly in the interests of justice to permit an
appeal against the ruling without the appellants first
having to be
exposed to the prejudice of an irregular trial. This court therefore
has jurisdiction to entertain the appeal."

17. 17
    De Beer's Case dealt with a jack of jurisdiction — the
    

    
    

appellants in that case were not triable in the High Court on the
charges against them. In the present matter the High Court has

jurisdiction to entertain the charges - the only issue is whether the
matter should proceed by summary trial or be preceded by
a
preparatory examination. As the appellants' ultimate prospects of
success on appeal against the dismissal of their first point
in
limine

14

are in my view practically non-existent they are not likely "to
be exposed to the prejudice of an irregular trial." But
even in
the unlikely event of success on appeal, it does not necessarily
follow that the time and money spent on the trial will
be wasted,
because in that event this Court, in terms of section 9(2) of the
Appeal Court Act, "may, if it considers that
no substantial
miscarriage of justice has actually occurred, dismiss the appeal."
Whether or not there has been a miscarriage
of justice will largely
depend on whether the summary trial was fair. Ultimately in De Beer's
case the court did no more than apply
the principles referred to in
paragraph 12 above relating to "rare cases" or "unusual
circumstances." Likewise
the decision in McIntyre's case
reflects an application of those same principles.

17. It
    follows that the court a quo's decision dismissing the first point
    in limine is not appealable. Even applying the broader principles

    referred to in paragraph 12, the present matter does not

    
    

15

fall into the category of rare cases where injustice might otherwise
result if the appeal is not entertained.

19. I
turn to consider the appeal against the dismissal of the second point
in limine. In Sekoati and Others v President of the
Court Martial and
Others LAC (1995-1999) 812 at 820C to 821H this Court, sitting as a
Full Court, set out what it considered to
be the correct approach to
disputes as to the interpretation of the Constitution. I do not
propose to reiterate all the guiding
principles laid down. It will
suffice for present purposes to quote the following (at 820E to
821C):

2. "Similar
   reasoning gives rise to the general approach in constitutional
   matters that a court will not determine a case on
   a constitutional
   basis if it is properly capable of being appropriately adjudicated
   on another basis (S v Mhlungu and Others
   1995(3) SA 867 (CC) at para
   [59]; Gardiner v Whitaker 1996(4) SA 337 (CC) at para [14], and
   that, by virtue of the presumption
   in favour of constitutionality, a
   court will prefer an interpretation of a statute which saves it
   (Minister of Home Affairs v
   Bickle 1984 (2) SA 439 (ZS)at 448E-G).

   
   

2. Constitutional
   instruments are further to be interpreted in a very different way to
   ordinary statutes. The courts are to avoid
   what Lord Wilberforce has
   memorably termed 'the austerity of tabulated legalism' (Minister of
   Home

   
   

16

Affairs
(Bermuda) v Fisher [1980 AC 319 (PC) at 328H. See also R v Big M Drug
Mart Ltd (1985) 18 DLR (4th) 321 (SCC) at 395-6; 18
CCC (3rd) 385
(Canada); S v Marwane 1982 (3) SA 717 (A) at 748-9 and S v Zuma 1995
(2) SA 642 (CC) at 651 (South Africa); Minister
of Defence, Namibia v
Mwandinghi 1992 (2) SA 355 (Nm SC) at 362 and Kauesa v Minister of
Home Affairs 1996 (4) SA 965 (Nm SC) at
975-6 (Namibia);
Attorney-General v Moagi 1982 (2) Botswana LR 124 at 184 (Botswana)).
As was held in S v Makwanyane 1995 (3) SA
391 (CC) at paragraph [15],
by South Africa's Constitutional Court:

'A
constitution is no ordinary statute. It is the source of legislative
and executive authority. It determines how the country is
to be
governed and how legislation is to be enacted. It defines the powers
of the different organs of State, including Parliament,
the executive
and the courts, as well as the fundamental rights of every person
which must be respected in exercising such powers.'"

20.
Section 6(2) of the Act provides:

"The Director of Public Prosecutions may retain counsel for the
purposes of conducting any criminal proceedings instituted
or
continued by him."

It is
common cause that, acting in terms of the above section, the DPP has
retained outside counsel for the purpose of conducting
the trial
against the appellants. It is contended by the appellants that

17

this is
inconsistent or in conflict with section 99 of the Constitution. In
this regard section 2 of the Constitution provides:

"This Constitution is the supreme law of Lesotho and if any
other law is inconsistent with this Constitution, that other law

shall, to the extent of the inconsistency, be void."

21.
Section 99 of the Constitution, to the extent relevant, provides:

1. "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 -

   
   

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. to
   take over and continue any such criminal proceedings that have been
   instituted or undertaken by any other person or authority;
   and

   
   

3. to
   discontinue at any stage before judgment 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."

   
   

18

22. Section
    99 (2) of the Constitution corresponds to section 5 of the Act
    (which preceded the Constitution), and section 99 (3) is
    virtually
    identical to section 6 (1) of the Act. The Constitution contains no
    provision similar to section 6 (2) of the Act.
    Section 99 falls
    under Chapter VIII of the Constitution which deals with The
    Executive. The office of the DPP in the public service
    is part of
    the executive structure of government. Section 99 (2) defines the
    powers of the DPP and section 99 (3) provides for
    the delegation of
    those powers to "officers subordinate to him". The
    sub-section, seen in its context, clearly contemplates
    officers in
    the public service.

    
    

22. The
    powers conferred on the DPP by section 99(2) vest in him (subject to
    the rights of the Attorney-General referred to in section
    99(4)) the
    ultimate control of all criminal prosecutions in the Kingdom. That
    would include the authority to institute, and the
    ultimate
    responsibility to oversee (undertake), all criminal

    
    

19

prosecutions, the right to take over private prosecutions and to
discontinue any criminal proceedings. The DPP's overriding executive

authority and decision-making functions in that regard may be
exercised by him in person or by officers in the public service
subordinate to him acting on his general or special instructions. The
powers and functions referred to are matters which only the
DPP or
his delegated officers may attend to.

24. The
    Constitution does not, either expressly or by necessary implication,
    preclude the DPP from retaining counsel outside the public
    service
    to attend to the performance of the actual prosecutorial function -
    the conduct of proceedings in court - on his behalf.
    The conduct of
    such proceedings amounts to the carrying out of a process incidental
    to the DPP's powers as set out above. By
    engaging outside counsel
    the DPP does not delegate or abrogate his section 99(2) authority to
    such counsel; he retains overall
    control over the proceedings. Thus,
    for example, no prosecution may be stopped or abandoned, or a plea
    to a lesser

    
    

20

charge under the indictment accepted, without his approval or that of
a duly authorized subordinate officer. No logical reason
exists why
the DPP should be precluded from engaging outside counsel if he
considers there is a need to do so. To deny him that
right would
place an unwarranted fetter on his powers. There are many instances
where prosecutions require special expertise or
skills in relation to
the subject of the charge, expertise and skills which may be lacking
on the part of the DPP or his subordinate
officers. It would hamper
the DPP in the performance of his duties, and the proper
administration of justice, if he could not appoint
counsel with such
knowledge or skills to conduct the proceedings. Proper and sensible
constitutional interpretation would seek
to avoid such a result.

24. In
    my view there is no inconsistency between the provisions of section
    99 (2) and (3) of the Constitution and section 6(2) of
    the Act. They
    employ different language, operate in different spheres and do not
    compete with each other in any way. The fact
    that

    
    

21

sections 5 and 6 (1) of the Act have counterparts in the Constitution
but section 6(2) of the Act does not, is of no significance.
The
simple explanation for the omission is that section 6(2) is not the
kind of provision that one would normally expect to find
in a
constitution. It follows that the appeal against the dismissal of the
second point in limine cannot succeed.

24. In
    the result the appeal arising from grounds 1, 2 and 4 of the Notice
    of Appeal is struck off the roll; the appeal arising from
    ground 3
    is dismissed.

    
    

J W
Smalberger

JUDGE OF
APPEAL

I agree:

J H Steyn

President
of the Court of Appeal

I agree:

M M
Ramodibedi

Judge of
Appeal

22

I agree:

FHGrosskopf

Judge of
Appeal

I agree:

L S
Melunsky

Judge of
Appeal

Delivered
on the 4th day of April 2007

For the
Appellants: J, Engelbrecht SC and K.E. Mosito

For the
Respondents: A.J. Dickson SC