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

1

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:

1. 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

2. 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

   
   

2

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

3

intent to defraud misrepresent to officials in Treasury Department
that:-

1. 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;

   
   

and/or

2. 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

5.

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.

6

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:-

1. 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.

2. 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.

   
   

3. (i)
   A n order directing that CRI/ T/ 34/ 07 be permanently stayed.

   
   

ALTERNATIVELY

2. 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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4. 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

9

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.

10

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

11

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).

12

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.

13

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

14

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

15

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

16

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.

17

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.

18

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

20

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).

21

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

22

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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