CIV/P/2/2007
IN THE HIGH COURT OF LESOTHO
Maseru-Lesotho
In the matter between
MAHALA MOLAPO Applicant
and
HLONEPHO NTSEKHE 1st Respondent
KHOPOLO KUJOANE 2nd Respondent
MALEFETSANE MABASO 3rd Respondent
PAKALITHA 'MEKO 4th Respondent
NEO RAMONTI 5th Respondent
LEHLOHONOLO SEEMA 6th Respondent
ALLIANCE OF CONGRESS PARTIES 7th Respondent
BASOTHO BATHO DEMOCRATIC PARTY 8th Respondent
BASOTHO CONGRESS PARTY 9th Respondent
BASOTHO DEMOCRATIC NATIONAL PARTY 10th Respondent
BASOTHO NATIONAL PARTY 11th Respondent
LESOTHO WORKERS PARTY 12th Respondent
MAREMATLOU FREEDOM PARTY 13th Respondent
NATIONAL INDEPENDENT PARTY 14th Respondent
NEW LESOTHO FREEDOM PARTY 15th Respondent
POPULAR FRONT FOR DEMOCRACY 16th Respondent
INDEPENDENT ELECTORAL COMMISSION 17th Respondent
ATTORNEY GENERAL 18th Respondent
SPEAKER OF THE NATIONAL ASSEMBLY 19th Respondent
LESOTHO CONGRESS FOR DEMOCRARY 20th Respondent
JUDGMENT
(In the Application for Recusal)
8th AUGUST, 2007
2
CORAM:
MOLAI, J.
PEETE, J.
NOMNGCONGO, J.
Peete J:
[1] In this notice of motion filed with the office of the Registrars, the applicant prayed for an order couched thus:
"A Rule Nisi be issued calling upon the respondents to show cause, if any, why an order in the following terms shall not be
made:-
Dispensing with the periods and modes of service of process stipulated by the rules due to the urgency of this matter.
The relief sought in terms of prayer 1(c) below be determined on the 28th May 2007 prior to the determination of the main application in C1V/P/02/2007.
That the Honourable Judges constituting the Full Bench of the High Court consisting of Justices B.K. Molai, S.N. Peete and T. Nomngcongo (and/or any other permanent member of the High Court Bench) should recuse themselves from adjudicating on the main application in CIV/P /02/2007.
That respondents be directed to pay costs of this application only in the event of contesting same.
That Applicant be granted further and/or alternative relief "
3
[2] The matter was duly heard on the 19th June 2007 and the court having considered arguments from both sides dismissed the application
indicating that full reasons would be filed with the judgment in the main application. However the applicant has on 18th July 2007 filed a notice of withdrawal in the main application/petition. The following are the reasons for dismissal of application for our recusal :-
[3] The thrust of Mr. Phoofolo's argument is that due to the fact that
Judges of the panel in the Election Petition no.2 of 2007 have recently purchased some Mercedez Benz cars for paltry amounts. Paragraph 2 of the Applicant's heads of argument reads:
" 2.1 The recusal application is based on the uncontroversial allegations that most of the Honourable Judges of the High Court
(including those whose names have been specified) have directly participated in the said controversial scheme, which can only be
enjoyed by its beneficiaries while the LCD government remains in power.
2.1.1. Consequently, Judges as beneficiaries of the said scheme cannot reasonably be perceived as impartial arbiters in a disputed
return matter which may have an influence on the balance of power in Parliament.
[4] Mr. Phoofolo argued that in the middle of 2006 there was "a public outcry" relating to this scheme which it was alleged was a result of "a corrupt relationship between the Government and Imperial Fleet Services"
4
[5] He submits that the Judges who are the beneficiaries to the scheme
where fruits may only be enjoyed while the LCD Government remains in power. Para 2.1.1 of his Heads reads:
"Consequently, Judges as beneficiaries of the said scheme cannot reasonably be perceived as impartial arbiters in a disputed return matter which may have an influence on the balance of power in Parliament"
[6] He submits that the reasonable perception of an ordinary person is that the Judges are likely to favour LCD government so that Judges can enjoy the fruits of the scheme in peace; and that it is the a vowed policy of the ABC government to bastardize the said scheme.
[7] Mr. Makhethe, the Attorney General, firstly denies the existence of any corrupt scheme or relationship between the Lesotho Government and Imperial Fleet Services and while conceding that while some Judges might have purchased from the Imperial certain Mercedez Benz cars at low prices, he denies that this is not likely to be prejudicial to the impartiality of the Judges. He submits that recusal applied for is first and foremost a matter for Judges' own conscience (Lesotho Electricity Corporation vs Forrester- 1979 (1) LLR440)
He also cited the case of Masupha Sole vs Brendan Cullinan
C of A (CIV) 29/02 where Gauntlett JA had this to say:
"The question is whether a reasonable, objective and informed person would, on the correct facts, reasonably apprehend that the Judge has not or will
5
not bring an impartial mind to bear on the adjudication of the case, that is, a mind open to persuasion by the evidence and the
submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judge to administer justice without fear or favour and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial, and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial."
In Sole, (supra) Gauntlet JA further remarked:-
"In my view, the general test for recusal cited in the previous paragraph - itself since cited with approval by the Court of Appeal of England (LOCABAIL LTD V BAYFIELD PROPERTIES LTD 2000 (1) ALL E.R (CA) AT 76) - should be applied in Lesotho too. As South Africa's Supreme Court of Appeal has noted, in applying this test the purpose of formulating the test as "double-reasonableness" is the emphasis the weight of the burden resting on the appellant (sic) for recusal."
The following has been stated in the Appellate Division of South Africa's Supreme Court:-
6
"In seeking to apply the law to the facts there must steadily be borne in mind the cardinal precept of our common law already
mentioned: the exception recusationis requires an objective scrutiny of the evidence. The test to be applied therefore involves the legal fiction of the reasonable man - someone endowed with ordinary intelligence, knowledge and common sense. That the test prescribed is an objective one, however, does not mean that the exception recusationis is to be applied in vacua, as it were. The hypothetical reasonable man is to be envisaged in the circumstances of the litigant who raises the objection to the tribunal hearing his case. It is important, nevertheless, to remember that the notion of the reasonable man cannot vary according to the individual idiosyncracies or the superstitions or the intelligence of a particular litigant."
[8] For his part Mr. Phafane submitted that there is not a scintilla of evidence - save for a memorandum by the President of the Law Society - which he submit is not evidence, is hearsay opinion (Seeisa Nqojane - 1985 - 89 LAC) and was not copied to the Judges of the High Court. He submits that Mr. Phoofolo's claim is but the beating of a drum of political rhetoric - a false hue and cry. He submits there is no illegality in the purchase of the cars and that the applicant is simply cynical and hypersensitive (Sager vs Smith -2001 (3) SA. 1004).
[9] The recusal process is predicated upon the hallowed principles of judicial independence, impartiality and integrity. It is a process that must be seriously considered and not lightly resorted to, it must be based on cogent grounds, especially where bribery or corruption is
7
relied upon as constituting grounds for recusal, such being very serious (criminal) allegations.
[10] Section 12 (8) of the Constitution of Lesotho reads thus:
"Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within reasonable time."(our underline)
[11] An impartial adjudication of disputes is the cornerstone of democratic justice; it is indeed a hallmark of civilization which has gained universal recognition the world over. Lesotho is no exception, and our Constitution has entrenched this hallowed principle in a most satisfactory manner.
[12] The basic question in these proceedings is whether the Judges of the High Court having been listed in the relevant legal instrument as beneficiaries to the Imperial scheme thereby being able to purchase the said motor vehicles at predetermined prices there is a real likelihood that the Judges of the panel might be inclined to be prejudiced in favour of the Lesotho Congress for Democracy the ruling majority party (respondents Nos. 1 - 6) in the election petition involving the applicants and the respondents.
8
[13] In approaching this issue, people involved in these proceedings including the general public must know and understand that all Judges of the High Court of Lesotho have, on assuming office, taken a solemn oath of office which they have undertaken as men and women of law to administer justice fairly and impartially without fear or favour or prejudice. This solemn oath of office impacts upon the integrity and the inner conscience of every judge (Forrester case (supra))
[14] There exists therefore a presumption of judicial impartiality and the onus is on the Applicant who alleges likelihood of bias on the part of presiding Judge or Judges. The dislodgement of this presumption is not easy, especially where corruption is being alleged (see BTR Industries South Africa v Metal and Allied Workers Union 2000 (3) SA 705 BTR.
[15] There are two important decided cases relevant to the present inquiry: viz. (1) S v Heita - 1992 (3) SA 785, and (2) Wildlife v Minister of Tourism 1996 (3) SA 1095.
(l)Wildlife Society of Southern Africa v Minister of Environmental Affairs and Tourism of SA 1996 (3) SA 1095 - Pickering J - at 1103. The application for recusal was moved by Moerane SC upon the ground that the presiding Judge was also the lawful occupier of a cottage on the Wild Coast (which was under scrutiny) and was likely to be biased for his own interest. The presiding Judge in refusing to recuse himself held that his occupation was legal, and that had the legality been challenged, perhaps he as presiding Judge would be inclined to give a decision not
9
"inimicable to (my) own interests." The learned Judge cited the English case of Bromley London Borough Council vs Greater London Council (1982) 1 ALL E.R 129 at 131.
[16] In this application it is not being alleged that the purchase of the vehicles is illegal nor is legality being challenged. All that is being contended is that there is a hue and cry and a public furore against the government scheme and in his founding affidavit the Applicant alleges that -
"The Law Society of Lesotho addressed a memorandum to different stakeholders including the Attorney General and Director of Public Prosecutions analyzing the said scheme and exposing its illegality,"
This Memorandum was however not copied to the Judges of the High Court. It is signed only by Mr Z. Mda, the President of the Law Society.
[17] Firstly, it should be pointed out that under law the Law Society is not a proper forum to determine the legality or otherwise
of government schemes - see [Law Society Act of 1983 where its role and purpose is succinctly stated]. Anyway, should the public outcry and furore be allowed to influence the judges in adjudicating in this matter? — See S v Heita (infra)
[18] The Applicant further states that whereas Judges were later exhorted showing them that the said scheme was illegal, the "upper
judiciary has not heeded" the advice of the Law Society because most of the
10
Judges of the High Court including Messrs Justices Mofolo, Monapathi, Peete, Nomngcongo and Madam Hlajoane have acquired their vehicles under the said scheme.
[19] Public furore and outcry.
(2) In the case of S v Heita -1992 (3) SA 779 it was held by O'Linn J (Namibia High Court) that the Court held that it was not subject to any dictates of political parties, "even if that party is the majority party". Where presiding Judges had been scandalized, insulted or threatened from public platforms through the media etc., it was held that if such conduct were allowed to continue, Judges could not effectively continue to perform their function independently as guardians of the Constitution, protectors of the fundamental human rights and guardians of a fair trial. We agree.
[20] In similar vein, in casu, the public outcry over the Imperial Scheme and declarations from political forums and exhortations from the Law Society may be justified as an exercise of freedom of expression; but such exercise should not be allowed to unduly reflect upon the judicial impartiality and integrity of the Judges of the High Court.
[21] It should perhaps be noted that different considerations might apply where the Judges who had benefited from the scheme, constituted the a panel adjudicating upon the legality of the very impugned scheme and the Imperial Fleet Services stood as an accused (for example in a corruption case) or as a respondent in a civil claim seeking a declaration of illegality of the said Scheme. This is not the case at present.
11
[22] The test and principle involved in matters of recusal are well known and are settled. Namely, the starting point is that the onus to rebut the presumption of impartiality is rather high. Secondly, the double -reasonableness test requires that not only must the applicant apprehending bias be a reasonable person but the apprehension must in the circumstances be reasonable and mere apprehensiveness on the part of the litigant that the Judge would be biased is not enough. The court has to scrutinize the apprehension fully to determine whether it is to be regarded as reasonable. See BTR Industires South Africa v Metal and Allied Workers Union - 1992 (3) SA. 673 (AD). See also Irvin - 2000 (3) SA 705.
[23] As a matter of public policy, it is always important that the public
always should have confidence in the courts. Upon this, social order and security depend. It is the right of the public to have their cases decided by persons who are free not only from fear but also from favour. In the end the only guarantee of impartiality on the part of the courts is conspicuous impartiality. (Hoexter JA in BTR case)
[24] Having heard submissions of applicant's and respondents' counsel we hold that the fact that some Judges have purchased the
Mercedez Benz vehicles which purchase or transaction according to Applicant is illegal and corrupt (but this having not been proved so in any inquiry or a court of law) is not a fact which in the mind of a reasonable right thinking man could create a reasonable
apprehension that the said Judges would likely be biased in favour of LCD respondents merely
12
because it is apprehended that the Judges have an interest in the outcome of the election petition.
No right thinking judge - contrary to his or her solemn oath of office would be inclined to bend his or her impartiality in favour of any party (including the majority party) merely because Mercedez Benz Kompressor cars have been allocated to them for their use and for their ultimate purchase at whatever terms or price.
[25] The application for our recusal was therefore dismissed with costs.
I agree:
PEETE, J
For Applicant : Mr Phoofolo
For Respondents : Mr Makhethe, Attorney General
