CRI/APN/515/2007
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the matter between:-
MOTSOTUOA BERNARD NTAOTE APPLICANT
AND
THE DIRECTOR OF PUBLIC
PROSECUTIONS RESPONDENT
RULING
Delivered by the Honourable Acting Judge Mr. G.N. Mofolo On the 14th March, 2008
Accused persons Motsotuoa Bernard Ntaote and Mamahlohonolo Peko were charged in the High Court of Lesotho it being alleged:-
Count 1: Fraud
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The accused are guilty of the crime of fraud in that during or about 1st September to 5th September, 2005 and at or near Maseru in the district of Maseru, the said accused did unlawfully and with intent to defraud misrepresent to officials in the Treasury Department that:
A particular trip which Accused 1 was required to take to the Republic of South Africa for the SARPCCO games was not funded and that, therefore, accused 1 and five others attending such games were entitled to full per diem payment;
and/or
That the Minister of the Department had authorized full per diem payment for the aforesaid persons to attend such games; and by means of the aforesaid misrepresentations, or either one of them, did induce the said
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treasury officials to the prejudice, actual or potential, of the Treasury Department, Government of Lesotho, to pay the said per diem costs in the amount of R12,38744 to each of accused 1 and the other five officers, whereas, at the time the accused made the aforesaid misrepresentations, they knew full well that the said games were funded and/or that the said Minister had only authorized one quarter of the said rates, not the full rate.
In acting as aforesaid the accused acted in concert alternatively accused 2 acted on the ostensible instructions of accused 1.
Count 2: Fraud
The accused are guilty of the crime of fraud in that on or about the 5th December 2006 and at or near Maseru in the district of Maseru the said accused did unlawfully with
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intent to defraud misrepresent to officials in Treasury Department that:-
A particular trip which accused 1 was required to undertake to the Republic of South Africa in order to attend Macro Surveillance
meeting was not funded and that, therefore, accused 1 and two other officers attending such meetings were entitled to full per diem payment;
That the Minister of the Department had authorized full per diem payment for the aforesaid persons to attend such meetings;
And by means of the aforesaid misrepresentations, or either one of them, did induce the said Treasury officials to the prejudice. Actual or potential, of the Treasury Department, Government of Lesotho, to pay the said per diem costs in the amount of R6,022.34 to
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each of accused 1 and the other two officers, whereas, at the time the accused made the aforesaid misrepresentations they knew full well that the said meetings were funded and that the Minister had only authorized one quarter of the rate.
In acting as aforesaid, the accused acted in conceit alternatively accused 2 acted on the ostensible instruction of accused 1.
Earlier on Mr. Mda for the accused had given notice that he intended moving an application and the court having granted the application when the case was called later, calling upon accused to plead first, counsel for the Crown had informed court he intended withdrawing charges against accused 2 as there was the intention to call her as an accomplice witness. The court had accordingly read the indictment
against accused 2 whereupon Mr. Mda lodged his application. In lodging the application for stay of proceedings, Mr. Mda explained
that should Mrs Peko be called as an
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accomplice, accused l's case would be prejudiced and should the court disagree he was applying in the alternative that, for the same reason, accused 2 be barred from giving evidence in that by withdrawing a case against a co-accused on verge of a trial, a fair trial would be vitiated. It appeared, according to Mr. Mda, that while accused 1 and 2 were indicted, a common defence strategy had been mooted between accused 1 represented by Mr. Mda and accused 2 represented by Mr. Mokaloba. To this end, according to Mr. Mda, as supported by accused 1 {para. 4(a)}, to avoid a conflict of interest, a common strategy was mooted by which both accused protested their innocence meeting at Mr. Mda's Chambers on 9 July, 2007 and 27 August, 2007 where joint consultations took place notes and documents being exchanged between lawyers thus evolving a common strategy {para. 4 (h) (i) of accused's Founding Affidavit}. According to para. 4 (h) (ii), accused persons agreed to be called as defence witnesses in support of each other, should such need arise.
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It would seem, both Mr. Mda for accused 1 and Mr. Mokaloba for accused 2 were non-plussed by sudden change of events, Mr. Mda by the fact that there was a common strategy in place by which accused's approach to the offence was known to Mrs Peko and Mr. Mokaloba by the fact that representing accused 2 it seemed the Crown was poaching on his territory. Needless to say Mr. Mokaloba supported accused 1 in all material respects. On the contrary, Mrs Peko denies there ever having been a common strategy between herself and accused 1 and more particularly that the two of them were brought together not having disclosed to his lawyer Mr. Mokaloba what her defence would be.
Disagreeing with the Crown at the eleventh hour to withdraw charges against Mrs Peko and turn her into an accomplice witness, Mr. Mda for accused 1 has applied to this court for an order in the following terms:-
An order declaring unlawful the consultation between 'Mamahlohonolo Peko and the member(s) of the
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Directorate on Corruption and Economic Offences and/or officers subordinate to the respondent without consent of her lawyer, after
the former was formally charged with two counts of fraud.
An order declaring that the turning of 'Mamahlohonolo Peko into a state (accomplice) witness constitutes a violation of applicant's fair trial in terms of Section 12 (1) of the Constitution of Lesotho.
(i) A n order directing that CRI/ T/ 34/ 07 be permanently stayed.
ALTERNATIVELY
In the event of the Honourable Court not granting the relief sought in (c) above, an order restraining 'Mamahlohonolo Peko to testify as a Crown witness.
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That applicant be granted further and/or alternative relief as this Honourable Court may deem just
Both Mr. Mda for the applicant and Mr. Leppan for the respondent have addressed this court accompanied by their exhaustive Heads of Argument and this court goes out of its way to express its appreciation for the sterling effort undertaken by counsel to help
the court reach a just decision given the thorny circumstances of this case.
As shown above, the application is for permanent stay of proceedings and/or alternative relief. This court draws attention to the fact that in this application the court has relied on Lesotho binding precedents where these are to the point, South African authorities taken by this court as persuasive and English precedents also taken as persuasive.
It will be seen that the application does not follow Criminal Procedure legislation in terms of which an accused may take an exception to the indictment; summons or charge
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that, for example, the charge is defective in that it does not disclose an offence and when the application is properly taken more often than not the indictment is quashed. Noticeably, the exception is taken before an accused pleads and depending on the circumstances of each particular case, the indictment is quashed or the prosecution given an opportunity to amend it. At English law stay of proceedings is covered by their Criminal Procedure and Evidence Act while in our case by rules of practice.
It does seem, however, by our Criminal Procedure and Evidence Act which, in this respect is substantially the same as that of South Africa, that before an accused pleads the role of the Attorney-General or as it were the Director of Public Prosecutions is dominant as where he withdraws a charge against accused persons; in doing so the court cannot be heard to demur or object. After the plea the court takes over and its discretion is unfettered.
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Although I have used terms "quash", "defect" as appear in the legislation, it seems to me an indictment can be challenged by an accused as the applicant has done so long as he shows that the charge as it stands is calculated to prejudice or embarrass him in his defence.
It is worth emphasis to note that as a general rule the court will not interfere with the discretion of the Attorney-General (DPP) in execution of his functions unless there is proof either that the legal limitations of such functions have been transferred, or the exercise of discretion is not bona fide (State v Nell) - Nellmapius, 1885-1888 S.A.R. 121; R v Waldeck Thine, 1913 T.P.D. 568; Gillingham v Attorney-General and Ors, 1909 T.S. 572.
It was also said that unfettered discretion vested in the Attorney-General refers not only to the actual trial or actual issuing of the indictment but to all proceedings taken for the purpose of prosecution — per Mason J; in Gillingham case at p.575 (and see R v Mohr, 13 S.C. 694) and an application for
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interdict against the Attorney-General will not succeed (Allen v Attorney-General, 1936 C.P.D. 302), nor will the court interfere with proper exercise of this discretion by means of a declaratory order as exercising future or contingent right or obligation in terms of Section 102 of the Act of 1935 (Exparte Farguhar, 1938 T.P.J. 213. Has also been said the case is in the hands of the Attorney-General until the accused pleads but that once the accused has pleaded not guilty to the charge the position changes.
In the instant application, it will be seen that the position has not changed in that the applicant has not pleaded in that at this stage the Attorney-General (DPP) may accept a plea of guilty of a lesser charge of which the accused may be convicted and the court is bound by the plea so accepted - see R v Komo, 1947 (2) SA 506 (W). Has also been said the AG (DPP) may before conviction, stop any prosecution commenced by him. (See Criminal and Procedure Evidence Act, 1981 as amended).
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Quoting from dicta by Curlews J, in Gillingham case above it has been said:-
“The Attorney-General has an absolute discretion to initiate and prosecute criminal proceedings at the instance of the Crown. He does so upon his own responsibility and in the performance of that duty is wholly independent of the court which cannot interfere with the discretion conferred upon him by the statute."
It was said, in addition, in Willis v The Solicitor-General 1926 E.D.L. 321 at 325 the AG is the sole arbiter whether he shall go on with the case or stop proceedings and in this regard the court cannot control him. Remarks above in Gillingham case above apply with equal force in the instant application and, in addition, it has not been claimed and even were it claimed, this court is not persuaded that proceeding as the respondent has done he was not bona fide.
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As for prayer (a), above of the Notice of Motion, I would have thought a legal practitioner's mandate abides and endures, many things apart, so long as an accused is indicted and faces a specific charge and that as soon as a charge against him/her is withdrawn as is the case with Mrs Peko, the mandate seizes. Also, acknowledging the withdrawal against Mrs Peko, Mr. Mokaloba has not participated in these proceedings.
I fail to see how this court, in circumstances in which Mrs Peko is no longer an accused person but witness for the Crown the court can grant the prayer seeing relations between Mrs Peko and Mr. Mokaloba have been severed. Thus in Goodricke and Son v Auto Protection Insurance Co. Ltd (in liquidation) 1968 (1) SA 717 (A) where the company, a client was provisionally liquidated and the manager requested attorneys to continue to render professional services in connection with uncompleted matters, the court per Potgieter JA, Steyn CJ, van Clerk JA, Botha JA and Williamson JA concurring Held the mandate given appellant had
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automatically terminated when the provisional judicial management order had been granted and by the same token when the charge against Mrs Peko was withdrawn, Mr. Mokaloba's mandate terminated making Mrs Peko available to the prosecution as a witness.
Regarding prayer (b) above of the Notice of Motion, notwithstanding that in the case below it is a question of delay whereas in the instant application it is on account of Mrs Peko an accomplice witness claimed to constitute a violation of applicant's fair trial should she be allowed to give evidence on behalf of the Crown, it is enough to say the Appeal Court per Steyn P, in Director of Public Prosecutions and Another v Lebona (1995-1999) LAC 474, an analysis of Sectionl2 (1) of the Constitution on the question was considered and the Appeal Court on the subject of the delay found applicant's right to a fair trial as envisaged by the constitution had been violated. What this court has also to consider and determine is whether by withdrawing charges against Mrs Peko and turning her into an accomplice witness for the state
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applicant's right to fair trial as enunciated by Section 12 (1) of the Constitution has been violated. As I understand Mr. Mda, it was unlawful to withdraw charges against Mrs Peko turning her into an accomplice witness for it is this turning Peko into an accomplice for the state that has violated applicant's right to a fair trial as stipulated by the constitution.
It has been said when an individual is prosecuted for an alleged criminal offence, it is open to him to defend the charge by challenging the validity of the legislation or administrative order in question and if the charge is invalid he will not have committed an offence because his action will not have been unlawful there being no actus reus - see cf. e.g S v Adams, S v Werner 1981 (1) SA (A) 222 H.
I don't know whether I should say R v Abdurahinan 1950 (3) SA 136 (A) tightened or loosened the knot. Nevertheless, in this case the appellant was charged with contravening certain railway regulations by inciting blacks to enter coaches reserved for whites. He raised the defence that
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the regulations were either unreasonable per se or that they had been applied unreasonably. In an appeal against conviction the latter, alternative, contention was upheld and the conviction was set aside at 150 of Abdurahinan above Centlivres-JA.saying:-
"If the Crown prosecutes a person under see 36 (b) of the Act for entering a reserved coach in contravention of a regulation and it is shown that such reservation was not authorized by or was in breach of the regulation, it is clear that the accused is entitled to a verdict of acquittal."
It is worth noting that the decision to withdraw charges against Mrs Peko and turn her into an accomplice is the statutory discretion of the Director of Public Prosecutions and the Director of Public Prosecutions was authorized to act as he did. If he acts without
authority or in breach of regulations guiding him, this court will stop him.
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I may also add it seems to me that all the prayers above overlap and arguments relating to one may relate to others.
I have already said that depending on circumstances of each case, the defence may stop a prosecution as happened in Lebona's case above save that there courts were dealing with unreasonable delay of prosecution while in the instant application it is stay of
proceedings occasioned by breach of Legal Privilege between Attorney and client and conversion of Peko into an accomplice seen by the applicant as violating principles of a fair trial.
Need I repeat, in converting Peko into an accomplice the respondent herein was exercising a discretion imposed on him by statute and I don't see how acting in course of duty and within the scope of one's employment that can violate a fair trial.
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Now, dealing with prayer (c) (i) of the Notice of Motion, the operative, decisive words or phrase is STAY OF PROCEEDINGS.
In Connolly v DPP (1964) N.C. 1254, H.L. at pp. 1354-1355 it has been said power to stay proceedings for abuse of process includes power to safeguard an accused person from oppression and prejudice; that the guidelines have been developed by the common law to protect persons from being prosecuted in circumstances where it would be seriously unjust to do so (Attorney-General of Trinidad and Tobago v Phillip 1955 1 AC, 396 P.C). An abuse of process was defined in Hui Chi-Ming v R (1992) A.C 34 P,C. as "Something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a regular proceeding".
According to Winsra v R (1865) L.R.I.Q.B. 289 at 390,
when it is proposed to call an accomplice for the crown, it is the practice, amongst other things, to omit him from the
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indictment. In R v Turner (B.J.) 61 Cr App. R67, C.A, it was contended for the defence there was a practice not to admit evidence of accomplices who could still be influenced by inducements and the court rejecting the submission concluded:-
"There is nothing either in the arguments or the judgment itself to indicate that the court thought it was changing a rule of law as to the competency of accomplices to give evidence which had been followed even in the 17th century ----. Its ratio decidendi is confined to a case in which an accomplice, who has been charged, but not tried, is required to give evidence of his own offence in order to secure the conviction of another accused. Pipe on its facts was clearly a correct decision. The same result could have been achieved by adjudging that the trial judge should have exercised his discretion to exclude (the accomplice) evidence on the ground that there was an obvious and powerful inducement for him to ingratiate himself with the prosecution and the court and that the existence of this
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inducement made it desirable in the interests of justice to exclude it" (per Lord Lawton L.J. at 78).
And Lord Parker CJ. in his judgment in Pipe describing what had happened being wholly irregular said:-
"It does not follow that in all cases calling a witness who can benefit from giving evidence is "wholly irregular". To hold so would be absurd. Examples are provided by the prosecution witness who hopes to get a reward which has been offered "for
information leading to a conviction" or even an order for compensation, or whose claim for damages may be helped by a conviction. If the inducement is very powerful, the judge may decide to exercise his discretion, but when doing so he must take into consideration all factors, including those affecting the public. It is the interest of the public that criminals should be brought to justice; and the more serious the crimes, the greater is the need for justice to be done"(ibid at pp.78-79).
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And in Sinclair, the Times, April 18, 1989 S.A O'Connor L.S. is reported to have said whilst it was undesirable to try to say what must be done in every case, because circumstances are so infinitely variable, in principle the prosecution must be careful before deciding to call as a witness an accomplice who is a participant in a crime of which the defendant is accused and ordinarily this should not be done without a clear indication from the accomplice that he is (as Mrs Peko has done) willing to give evidence in favour of the Crown. I read these cases as supporting the procedure that, even where one is co-accused, on being made available to testify for the Crown as the DPP has done by withdrawing charges against Mrs Peko in the interest of justice, the prosecution has to be circumspect in calling an accomplice; not only calling him/her but might also consider excluding his/her evidence. I don't read these authorities as laying down the rule that considering hazards associated with accomplice evidence his/her evidence can be excluded before the trial but that, at the trial the prosecutor may decide to do so and I may add, it is at the trial that
the defence may apply for the exclusion of such evidence
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given the fact that after plea the court has a discretion whether or not to exclude an accomplice evidence. Except the respondent exercising his powers in terms of the Law nothing has happened to cause stay of proceedings in this trial and as I have said the court is not empowered to do so.
Regarding (c) (ii) the alternative prayer, this court has already said the prayers overlap and in any event the court has answered this prayer at prayer (c) (i) above and the court is not persuaded to grant prayer (c) (ii) and like prayers (a), (b) and (c) (i) above, they are refused.
Consequently, the application is, as a whole, dismissed.
PUISNE JUDGE
For the Applicant : Mr. Z. Mda
For the Respondent : Messrs Griffiths and Leppan
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