CIV/APN/116/07
IN THE HIGH COURT OF LESOTHO
In the matter between:-
MAREMATLOU FREEDOM PARTY Applicant
and
THE INDEPENDENCE ELECTORAL COMMISSION
& 53 OTHERS Respondents
JUDGMENT
(On Application for Recusal)
CORAM : THE HON. MR JUSTICE S.N. PEETE,
THE HON. MRS JUSTICE A.M. HLAJOANE
THE HON. MRS JUSTICE M. MAHASE
DATE : 13th AUGUST, 2007
DATES OF HEARING: 2nd and 3rd JULY 2007
PEETE, J.
[1] Introduction
The applicant seeks an order couched in the following terms:-
That the panel of judges appointed to hear the elected in the above-mentioned case recuse themselves from determining this election petition on the basis that there is reasonable likelihood that they might be biased or be perceived to be biased in favour of the opposing Respondents.
2
That any substantive or acting Judge of the High Court of Lesotho should equally recuse himself or herself on the basis that there is a reasonable likelihood that she/he might be biased or be perceived in favour of the opposing Respondents.
Granting Applicant/Petitioner further and/or alternative relief
That Respondents pay the costs hereof in the event of opposing this application.
[2] In the pending principal application filed on the 9 March 2007, the applicant has sought an order couched thus:
declaring as unconstitutional and invalid the final allocation of seats in the National Assembly, by the First Respondent following the 2007 Elections;
declaring the alliance between the LESOTHO CONGRESS FOR DEMOCRACY (LCD) and the NATIONAL INDEPENDENT PARTY (NIP) to contest the 2007 Elections as a single entity for purposes of allocation of seats in a mixed member proportional representation in the National Assembly;
declaring the alliance between the ALL BASOTHO CONVENTION (ABC) and the LESOTHO WORKERS PARTY (LWP) to contest the 2007 Elections as a single entity for purposes of allocations of seats in a mixed member proportional representation in the national Assembly;
following the declarations in (a,) (b) and (c) above directing first Respondent to re-allocate the seats in the National Assembly in accordance with the formula provided for in Schedule 5 of the National Assembly (No.1) (Amendment) Act No16 of 2001;
3
e. directing First Respondent to pay the costs hereof and any other Respondents to pay such costs in the event of opposing this petition;
granting the Petitioner further and/or alternative relief
[3] The hearing of this application had been set down for argument on the 2nd and 3rd July 2007, the applicant urgently filed the application seeking the recusal of the present panel as in paragraph 1 above, and the hearing of arguments from both sides lasted for two days.
[4] Having perused the applicants notice of motion and the supporting affidavit and having heard arguments from all counsel for
the applicants and for the respondents, the Court dismissed the application and indicated that full reasons will follow later. These are the reasons:
[5] Section 12 (8) of the Constitution of Lesotho reads thus:
"(8) 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 emphasis)
[6] An independent and impartial Court is a bastion of a fair trial - civil or criminal. If there exist cogent reasons for an apprehension that a Judge might not be independent or impartial an application for recusal may be made for the recusal of the trial Judge.
4
[7] In his affidavit, Mphosi Matete - an incumbent deputy president of the applicant alleges as follows:
That the Election Petition - CIV/APN/116/07 "concerns the distribution of seats in the National Assembly (of the 7 Parliament
of Lesotho) for the proportional representation."
That the present panel has been appointed by the Chief Justice to deal with the said Election Petition.
That Minister Lesao Lehohla, a deponent for the 53rd Respondent is the "blood brother of the Chief Justice", ...and the main petition questions the legality of the actions of the Chief Justice's brother who is alleged is alleged to have signed a certain electoral pact between the Lesotho Congress for Democracy and National Independent Party. It is alleged the said pact had the effect of bastardizing the formula provided for allocation of seats for proportional representation.
It is also alleged that while Mr Moiloa is currently an Acting Judge of the High Court of Lesotho, he is also an instructing attorney for the 1st Respondent (The Independent Electoral Commission) and that Mr Molyneaux is an instructing attorney for the 2nd and the 3rd Respondents namely — the Speaker of the National Assembly and the Attorney General (cited nominally)
That because the panel has been appointed by the Chief Justice to adjudicate on a matter that may affect the political career of the Chief Justice's blood brother and because Mr Moiloa though currently a Judge of the High Court, is a party to this election
petition, therefore
"there is a real likelihood of bias in favour of the opposing respondents and also a perception that there will be bias in favour of the opposing Respondents. Even if the present panel of Judges were to recuse themselves, as they should
5
in the present circumstances, any other Judge or Judges appointed to replace them will suffer the same fate. "
[8] The Respondents' counsel - Mr Brett SC, Mr Viljoen SC and Mr Trengove SC elected not to file any answering papers - the matter
thus being heard on an urgent basis. Mr Viljoen explained that all factual allegations in the founding affidavit were being admitted
save the inference of bias sought to be drawn under paragraph 8 of the founding affidavit.
[9] When he rose to address the Court, Mr Ntlhoki, for the applicant, emphasized the failure of the Respondents to file answering affidavit to controvert applicant's allegations and also submitted that even those in para 8 should be taken as admitted. Well, well, even if the respondents had agreed to our recusal, the matter of recusal rests finally with the Court, whose impartiality
and independence is being impugned.
[10] Mr Ntlhoki submits in the main that since the panel of Judges has been appointed by a Judicial Service Commission whose Chairman is the Chief Justice and because the subject matter of the election impacts on the political interests of the Chief Justice's blood
brother, there is a reasonable apprehension that the panel will be biased in favour of the Chief Justice's brother - Mr Ntlhoki even remarking that Judges of the panel felt a ""sense of gratitude'' to the Chief Justice for their appointment! Mr Ntlhoki argues that because of this there
6
exists a real perception that Judges of the panel may be biased on that ground.
[11] Mr Ntlhoki, relying on the Swazi case of Sappire, advanced the other leg of his argument: that of Mr Moiloa's current position as an acting Judge and the uncontroverted allegation that he has participated as a party in the election petition, a sense of "judicial collegiality" would create a real likelihood of bias - adding that the bias need not be actual or even conscious.
[12] He submitted that the two legs of his argument should carry the day and that the Judges of the panel recuse themselves.
[13] Mr Brett for the respondents firstly argued that the application for recusal is not bona fide and that it has filed with
ulterior motive to procrastinate the hearing of the election petition and that since April 2007 when Minister Lehohla's affidavit was filed some two months have gone by.
[14] He submitted that Mr Moiloa was not a member of the panel while perhaps he, being and instructing attorney, was a party to the proceedings.1 He conceded that whereas Mr Moiloa was currently an Acting Judge of the High Court - that fact of acting appointment was far too removed to found any cogent reason for recusal. He contended that Sappire's case could be distinguished as Justice Sappire was the litigant and his colleagues on the bench recused themselves upon the
1 High Court Rules 1980 - Interpretation Section
7
ground that nemo sibi esse index Duis uis dicere debet2 — whilst Mr Moiloa is admittedly an instructing attorney, he is not
listed as a litigant amongst the respondents. His personal or proprietary interests or status are not at all in jeopardy due to any result of this application.
[15] Mr Viljoen, for his part submitted that the principles and tests in recusal applications are quite clear. Firstly the "double
-reasonableness test" inquires whether a reasonable man, well informed and right-minded might in the particular circumstances of the case be influenced or be biased in favour of the respondents. He then cited the Masupha Sole case3, where the following was stated:-
"[21] It is necessary in this regard first to state the legal test applicable to recusal of a Judge. This is because earlier
decisions grappling with this issue as a matter of English law have aptly been described by Lord Gqff of Chieveley as 'not only large in number but bewildering in their effect1 ... the highest Courts both in South Africa more recently in Swaziland have applied this test. Minister of Justice v Sappire, Case No.49/2001, Swaziland High Court, 10 June 2002 (unreported) p9. See also the previous decisions by this Court in Sekoati & Ors v President of the Court Martial & Others, LAC (1995-1999) 812; 2001 (7) BCLR 750 (Les CA) and Law Society of Lesotho v Prime Minister of Lesotho LAC (1985-9) 129.
The question is whether a reasonable, objective and informed person would, on the correct acts, reasonably apprehend that the Judge has not or will not bring an
2 Nemo debet esse index in propria causa (no one should be a judge in his own cause) - R v Plaatjes, 12SC 351; Rhodesian Railways v Mackintoch 1932 AD 373, Director of Education v Wilkinson 1930 TPD 480; 1966 THRHR 325.
3 Sole v Cullinan - LAC (2000 - 2004) 572 at 586 J.
8
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 Judges 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 of predispositions. They must take into account the fact that they have a duty to sit in any in which they are not obliged to recused 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.
President of the RSA v SARFU, 1999 (4) 147 at 177B-E.
In my view the general test for recusal cited in the previous paragraph, itself since cited with approval by the Court of Appeal in English (Locabail Ltd v Bayfield Properties Ltd, Supra), 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 to emphasize the weight of the burden resting on the appellant (sic) for recusal."
[16] Mr Viljoen strenuously submitted that it was "outrageous" for the applicant's counsel to suggest that despite their having taken a judicial oath, the Judges on the panel would likely be biased in the adjudicating upon a case in which a brother of the Chief Justice has interest.
9 [17] Mr Trengove's submissions are as follows:
There exists a presumption of impartiality once a Judge has taken a judicial oath wherein he or she makes a solemn declaration to dispense justice without fear or favour. He cited the case of S v Basso a 2007 (3) SA 582.
In the case of South African Commercial Catering and Allied Workers Union v Irvin & Johnson 2000 (3) SA 705 (CC) it was emphasized that this presumption is not easily dislodged, and that cogent and convincing evidence is necessary in order to do so, and that Cameron AJ had stressed the fact that the onus resting on the applicant alleging bias is quite considerable and that "the threshold for a finding or real or perceived bias is high". It is a finding that must be carefully considered since it calls into question an element of judicial integrity (R v S (RO) [1997] 3 SCR 484 (SCC) para 113]. This is more so when the Bench is composed of more than one Judge because the allegation of "concerted" bias must be alleged and established. It cannot easily be assumed.
Mr Trengove further submitted that there was no cogent reason that despite their judicial oath the Judges of the panel could feel beholden to the Chief Justice first for their respective appointments to the Bench, to the panel and for their continued
existence on the Bench. Preposterousness and illfoundedness of this allegation can dumbfound any reasonable man and that
10
such a perception is not at all reasonable. Security of tenure which the permanent Judges enjoy under the constitution renders impossible their removal from the Bench by Chief Justice without resort to provisions of Section 121 (3) (4) of the Constitution of Lesotho.
[18] Definitions
(a) Oxford English Dictionary defines "recusal" as
"(of a judge) excuse oneself from a case because of a possible lack of impartiality".
In the Dictionary of Legal Words and Phrases "recusation"
"Takes place when a judicial officer decides to withdraw from a case because he has come to the conclusion that it would be improper for him to adjudicate in that particular case"4
Thus where two judicial officers as colleagues sit on the same bench and one is a litigant or an accused, it is proper for the other to recuse himself — SA Motor Acceptance Corporation (Edms) Bpk v Oberholzer - 1974 (4) SA 808 T and Nemo debet esse index in propria causa - No one should be a judge in his cause. R v Plaatjies 12 SC 351; Rhodesian Railways v Mackintosh 1932 AD 373; 1966 THRHR 325; nemo sibi esse index suis jus dicere debet and Director of Education v Wildinson - 1930 TPD 480.
4 Head and Fortuin v Woolaston and de Villiers 1926 TPD 549
11
Bias: Dictionary of Legal Words and Phrases states:-
"Every person who undertakes to administer justice, where he is a legal or official or is only for the occasion engaged in the work of deciding the rights other is disqualified if he has a bias which interferes with his impartiality " —
Liebenberg v Brakpan Liquor Licencing Board 1944 WLD 52, S v De Vries Diary Board vs Imperial Cold Storage and Supply Co Ltd
- 1977 (3) SA 659 (A) - See 1964 SALJ (for real likelihood of bias). See also R v Silber 1952 (2) SA 475 per Schreiner JA, S v Khala 1995 (1) SACR 276 (A) (e-j) - Lord Denning in Jones v National Coal Board - [1957] 2 All ER 155 (CA) at 159B. S v Dzukuda - 2000 (4) 1078.
[19] The double-reasonableness test was perhaps well articulated in the Irvin case 2000 (3) (SA) 705 (CC) where the Constitutional Court of South Africa held that in considering an application for recusal, the Court should as a starting point presume that judicial officers are impartial in adjudicating disputes; and that the onus rests on the applicant to rebut the presumption of judicial impartiality, also bearing in mind that his presumption is not easily dislodged because it requires cogent or convincing evidence to be rebutted. It was further held that not only must the person apprehending bias be a reasonable person but the apprehension itself must in the circumstances be reasonable; and that mere apprehensiveness on the part of the litigant that the Judge would be biased is not enough; and that the Court has to
12
scrutinize the apprehension carefully to determine whether it is to be regarded as reasonable. In adjudging this, the Court superimposes
a normative assessment on litigant's anxieties thus attributing to litigant's apprehension a legal value and thereby deciding whether it is such that it should be countenanced in law. Legal standard of reasonableness is that expected of a person in the circumstances of the individual whose conduct is being judged.
[20] It has also been held that a junior judicial officer should recuse himself where his senior judge is a litigant or witness on the ground that there would be a tendency for his or her mind to be inclined towards bias - S v De Vries - 1964 (2) SA 110.
[21] Furthermore, in casu it has not been shown or even alleged that in deciding favourably with the 53rd respondents (of which the Chief Justice's brother is the deputy leader of the ruling LCD party) replace the panel Judges stand to gain any advantage, dividend or patronage from the Chief Justice and that they shall forever stand beholden to the Chief Justice.
[22] Recusal of the Entire Bench
Mr Ntlhoki in his notice of motion also prays that all other Judges of the High Court of Lesotho should recuse themselves upon the same grounds advanced. Putting aside procedural points such as non-joinder this is a far reaching prayer which if granted would create a very serious constitutional crisis or dead lock and other practical
13
difficulties, the upshot of which would be to nullify the basic claim of the applicant by sowing the seeds of its own destruction. In this world of the living, complete neutrality or impartiality is not always possible; Judges are but human beings how have taken a judicial oath and have some legal training and experience. They also have conscience as Judges.
[23] We hold that Mr Trengove's submission on this aspect is quite ingenious and appealing. The doctrine of necessity provides that:
"...Although there is a general rule that a Judge who is not impartial is disqualified from hearing the case, there is an
exception to this rule that allows a Judge who would otherwise be disqualified to hear the case nonetheless, if there is no impartial
Judge who can take his place. The law recognized that in some situations a Judge who is not impartial and independent is preferable
to no Judge at all. This doctrine seems to have gained general acceptance since 1430; and it has been applied by the highest courts
of the several common law jurisdictions in Canada, Australia, United States and England. "
Halsbury's Law of England 4th ed (Butterworths 1989 Vol. 1 (1) para 93 states:-
"If all members of the only tribunal competent to determine a matter are subject to a disqualification, they may be authorized and obliged to hear and determine that matter by virtue of the operation of the common law doctrine of necessity." [Tracey — Disqualified Adjudicators: The Doctrine of Necessity in Public law
[1982 - Public Law 628 at 641.
14
This doctrine seeks to prevent possible frustration of justice through any subterfuge and is raised only in exceptional circumstance.
[24] High Court Rule 8 (10)
About Mr Ntlhoki's procedural point that the respondents did not file any answering affidavit to controvert all the allegations in the founding affidavit, we wish to point that nothing turns on this argument because even if they filed such answering affidavits, the issue sui generis is between the applicant who bears the onus and the Court and nothing rests upon the respondent and no adverse finding needs to be made concerning their failure to controvert the applicant's allegations. Indeed the application could have been made ex parte without notice even to the respondents!
[25] The following must be clear:-
Each of the Judges on the panel and indeed all Judges permanent on the Bench of the High Court of Lesotho including the Chief Justice have all taken an oath of office to adjudicate in all cases without fear or favour prejudice.
Judicial independence has two aspects. First, institutional independence as guaranteed under section 118(2) of the Constitution and individual independence which each Judge enjoys in every case he adjudicates and in this latter
15
independence, Judge cannot be influenced by any person or authority in deciding the matter in casu.
Recusal application necessarily impinges on judicial integrity of the Judge in that his impartiality is being called into question under circumstances sometimes not of his own making, sometimes of his own volition and creation. He or she must make a choice from his or her own conscience. At times the Judge may for a good reason recuse himself or herself mero motu. A Judge must never feel himself or herself slighted or offended by an application for recusal except where uncourtly language or insinuations are made without good reason.
The appointment to the panel of three Judges in this election petition has been done in accordance with the provisions of the law and the Constitutional Litigation Rules. No covert or ulterior motive or unethical instructions have been shown to emanate from the Chief Justice regarding the conduct of the case. If such were shown, the gravity of the matter would then be clear to all to see and perceive.
Mr Moiloa, a current Acting Judge, is not a member of the panel, and though a party in terms of Rules of this Court as an instructing
attorney, he is not one of the respondents. Mr Moiloa has no personal stake in the outcome of the case. As a professional man,
his personal interest is perhaps limited to his professional fees.
16
If Mr Moiloa was perhaps cited as one of the respondents in the petition, then the apprehension of bias would be reasonable, or if the Chief Justice despite the blood relationship alleged was a member of this panel in the election petition — (see also Liebenberg v Brakpan Liquor Licencing Board - 1944 WLD 52 at 59; S v Bam 1972 (2) SA 41.
It should however be remarks that Mr Moiloa was currently still holding a position of Acting Judge when he purportedly acted also as an instructing Attorney for the 1st Respondent as evidenced by Annexures "A" and "B" to this Application.
Annexure "A" being the session roll for Mohale's Hoek from 18 June to 6th July 2007. Annexure "B" being correspondence to Applicant's Attorney by Mr Moiloa dated 20th June 2007. This dual role could create some confusion and possible
apprehension of conflict of interest. It would be confusing to being a Judge in the morning and Counsel in the afternoon of the same day. The two roles have to be clearly separated.
[26] We therefore hold that the relief sought by the applicant should be refused upon the sole ground that the apprehension of bias does not pass muster of the double-reasonableness test and is thus not well founded.
17
[27] It must lastly be pointed out that if at anytime the impartiality of a judicial officer is sought to be impugned, applicant counsel must always indicate his intentions to the Judge in chambers out of etiquette so that the matter of the recusal can be thrashed out confidentially in the presence of the other side. A Judge - out of his own conscience may then recuse himself - or elect that the matter be thrashed out in open Court because the application for recusal must never be sprung on the Court. Application for recusal can sometimes involve the very integrity of the Court.
HLAJOANE, J.
On Costs
[1] There is always a purpose for giving an award and as such an award of costs in no exception to that general principle. Normally
costs are awarded to a successful party so as to enable him to recover the expenses to which he has been put by having been compelled to either initiate or defend litigation. We say costs as a general rule follow the event. These costs are sums of monies the Court orders one litigant to pay to the other litigant as compensation for the expenses incurred in litigation, Jonker v Schultz 2002 (2) SA 360 at 363.
[2] Authorities have shown that a costs order is not intended to be compensation for a risk to which one has been exposed, but a refund of expenses actually incurred, see Payen Components
18
South Africa Ltd vs Bovic Caskets cc and Other 1999 (2)
SA 409 at 417.
[3] The former statement does not contain a full explanation of the purpose of an award of costs. The statement refers only to an award of party and party costs which is in no way is a full indemnification because if an award of costs is to serve as an indemnification, then award of costs on a Attorney and client scale should have been the rule rather than an exception.
[4] In casu, the applicant filed an application for recusal on Friday 29 June 2007 when the main application was already set for
hearing for the 2nd and 3rd July, 2007, which was Monday and Tuesday of the following week. Instead of dealing with the main application
the Court was faced with the recusal application.
[5] On the date of hearing, counsel for respondents indicated that they were not going to file any opposing affidavits but were going to argue from the bar. Applicant's counsel on the other hand submitted that his application should be taken as unopposed in the absence of any answering affidavits by the respondents. The Court had been of the feeling that it was ex pacto that answering papers as well as replying were not going to be filed. Applicant's counsel showed that he was not in agreement with the proposition that answering affidavits be not filed.
19
The Court had that feeling because as the matter was being discussed in chambers applicant's counsel had remained silent. But when
advancing his argument in court he indicated that he could not respond as he wanted to use that novel kind of procedure as his
weapon to show that he had not been challenged in his averments. He referred the Court to the case of Theko v Compol 1991-92 LLR & LB 239.
[6] Theko's case is distinguishable from our case in that, in casu no answering papers were filed at all, but in Theko the answering
affidavit was filed but in it respondents failed to respond or challenge the correctness of the averments contained in the founding
affidavit. That was why the Court decided that under the circumstances it was of the view that the issues were going to be resolved on the basis of the acceptance of the unchallenged evidence of the applicant.
[7] The Court had already given its ruling on the question of costs, that each party bear its own costs. It has to be remembered that as suggested by some jurists, there is no all embracing rationale covering all award of costs. It was said in Philipp v Lindau 1948 (1) SA 1033 at 1036 that, "costs lie where they fall". This was decided by the Court in the case where the Judge presiding resigned on the ground of ill health and the Court on considering the question of costs said, "the loss must be borne where it falls, " and made no order as to costs.
20
[8] But in casu a decision has been made of dismissing the application for recusal. As already stated above, there is no all embracing rational covering all awards of costs safe to say that each case has to be decided on its own merits. Even a successful party can be deprived of the costs where in the Court's discretion it appears just.
The application of the general rule that costs follow the event might create some certainty in some instance whilst lacking justice in quite a number of cases. The Court usually retains its unfettered discretion in awarding costs. So that even the general rule is still subject to the overriding principle of the Court's discretion, Union Government (Minister of Railways and Harbours) v Heiberg 1919 AD 477 at 484.
[9] The Court therefore in the exercise of its discretion considered that though there is no time limit within which to bring an application for recusal there has been some delay in bringing this application. But the respondents also on the other side failed to oppose the application as they not even file an intention to oppose. They therefore decided to argue from the bar. They did not even attempt to ask for a postponement with an award for costs against the applicant. The Court had even asked as to how it was going to be possible to decide the matter in the absence of having heard the respondent's side of the story on the averments by the applicant; but respondents argued will
21
argue from the bar as they were only disputing only one prayer out of the eight from the founding affidavit.
The application for recusal of the panel of Judges is dismissed.
The Court has thus in the exercise of its judicial discretion ordered that each party bear its own costs.
[10] In conclusion we say the following: Applications for recusal always need to be considered by counsel with all due sincerity
because the integrity of the presiding Judge is thereby being brought to book — not that every judicial officer is impeccable or beyond reproach. In year 2002 a rather unique application was made by counsel to the High Court of Lesotho for an order that the Court should declare itself to be "not independent and impartial"! - This application was being brought before High Court that had previously solemnly admitted as advocates and as attorneys of the High Court, the very counsel seeking who were then seeking the High Court to bastardize itself. It was like a child telling its parents that they are illegitimate!
[11] An application for recusal is indeed very serious matter which deserves much reflection; it should not be resorted to as a subterfuge to thwart the hearing or adjudication of seemingly sensitive or high profile cases. Judges are endowed each with conscience and having taken the solemn judicial oath they are
5 Basotho National Party v Government of Lesotho - Constitutional case no.5 of 2002.
22
under a solemn duty to hear all cases - small and big, simple and complex, ordinary and even the highly sensitive. Judges should not always recuse themselves merely because of any complexity or sensitiveness of any case for to do so it may appear is timidity that would not be acceptable to the right thinking people ofLesothao.
SN. PEETE
JUDGE
I agree
A.M. HLAJOANE
Iagree
M. MAHASE
For Applicant : Mr Ntlhoki
For Respondents : Mr Brett, Mr Viljoen and Mr Trengove
