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CIV/APN/142/2000

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

THESELE
MASERIBANE APPLICANT

and

THE RIGHT
HONOURABLE THE

PRIME
MINISTER 1ST RESPONDENT

THE
ATTORNEY GENERAL 2ND RESPONDENT

For the
Applicant : Mr. K. Mosito

For the
Respondents : Mr. K. Tampi

JUDGMENT
EX TEMPORE

Delivered
by the Honourable Mr. Justice T. Monapathi on the 27th day of April
2000.

This
application was filed as of urgency. It was filed on the 20th of
April, 2000. Indeed on the same date Respondents were served with the
papers. It is clear that it must have been that Thursday preceding
the Easter weekend.

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The
application is about a declaration, interdict and other relief as
shown in the notice of motion. And it concerns a Commission of
inquiry appointed by the First Respondent by Legal Notice number 33
of 2000. That legal notice shows appointment of three (3)
Commissioners, namely Mr. Justice R.N. Leon (Chairman), Mr. Justice
J. Browde and Mr. Justice B.L. Shearer. It shows other appointed
people as shown in section 10 who are styled "Secretariat."
The application seeks to declare the appointment of that Commission
of Inquiry as null and void. It sought to declare the appointment of
that secretariat are null and void as well. It also sought to
interdict the Commission of Inquiry from carrying out its functions
as directed in the terms of reference as shown in that legal notice.

The terms
of reference of that Commission are contained in section 3 of the
legal notice. The terms run up to ten or thereabout and they are very
extensive in their nature. They cover a large area over a period
described as the 1st July 1998 up to November 1998.

The
notice contains appointments of certain Commissioners all of whom can
be described as judges and coincidentally they are retired judges of
the Republic of South Africa. All have served in the Court of Appeal
of this country and it was not disputed that at least one of them was
still serving at present.

A point
was not taken about the extent on the inconsistency of the terms of
reference or otherwise. There was a dispute about the appointment of
the learned judges and also about the secretariat. And also about the
way the Honourable Prime Minister has gone about in making the
appointments. One of the points being that he has exceeded his
powers.

Applicant
is a citizen of this country. There was no dispute that he would

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and did
have the capacity to institute these proceedings. The reason being
that he says there is a pending murder charge against him which
concerns the death of one Kelly Mahase who reputedly died during the
time of what one can call disturbances occurring during the period of
the time covered by the terms of reference which matter (about the
period of the death) was common cause.

After
some time it became clear that the complaint of the Applicant was a
simple one. Briefly state it was that this Commission will be
investigating circumstances in the terms of reference over that
period. That the Commission will probably touch on the facts
connected with the death of the deceased with which Applicant is
charged in the indictment the Applicant stood facing. He says the
potential for unfair trial therefore exists, that the trial against
him will be unfair. That time when the charge against him is tried
there may have been comments, discussions or unearthing of facts that
concern the very charge against him directly. He will suffer some
jeopardy of some kind if those facts are released. That therefore
this Court ought to protect him by stopping (interdict) the operation
of this Commission. If it does not do so it must declare the work of
the Commission as null and void.

This fact
of the application having been filed on the 20th April 2000 has had
the effect that at the time when the hearing of this application was
to be proceeded with the Commission was already proceeding. The
Applicant therefore most wisely decided that he would not insist on
the operation of the Commission being interdicted but if it continued
to run it did so at the risk of its work being declared to be
invalid. So that what remained before this Court for argument was
primarily that remedy normally called a declaration or declarator.
That is, the Court will pronounce that the work of the Commission was
null and void.

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A
declaration has a certain importance to lawyers. If is that it is a
discretionary remedy. It is not a legal remedy strictly speaking. It
is because the Court has to look at all the circumstances and decide
whether relief claim is a fitting Order that it may make. It has to
use a judicial discretion. It looks at imperative and overwhelming
reasons even if the Applicant may have been right in promoting the
issues of rights, the substance of his claim. The Court does not only
consider whether the rights are is valid but looks at the effect of
what may be ordered. Is the remedy proper in the circumstances? That
is why it is called a discretionary remedy.

I start
off by commenting about the learned judges appointed by the
Honourable Prime Minister. The judges are experienced lawyers. All of
them were judges of standing. One of them has participated in not
less than five Commissions of Inquiry instituted by the government of
the Republic of South Africa or other institutions in the Republic of
South Africa. I found it difficult to understand the kind of
prejudice feared by the Applicant by appointment of this learned
judges. They are a fact finding body. Theirs is not to conduct
judicial proceedings. How their finding will affect judges or
judicial officers of this country is difficult to fathom.

To say
their findings will influence the work of a presiding officer in the
intended murder trial against the Applicant is nonsensical if not far
fetched. That is why I did not understand why the learned Attorney
General wanted to evade the issue that those learned judges could
still be judges working in the Appeal Court of this Country. Even if
it was true with that all the judges were occupied as judges of that
Court there would, in my view, be absolutely nothing wrong with
regard to the attack levelled against their positions. It is because
Commissioners are appointed from judges of the Courts of almost every
country and because of their expertise.

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A
government wishing to appoint a Commissioner from body of judges need
not wait for that judge to retire, nor to be disabled nor need the
judge be an old man as long as he is a judge and is able to do fact
finding. So that I find nothing wrong with the appointment of learned
justices. And the fear that their appointment will influence the
working of this Court and that it will influence that charge the
Applicant is facing is nonsensical. So is the perception. One finds
it difficult to understand why judges of this Court will all be after
this case that the gentleman faces. It does not make sense. Learned
judges are not busybodies. It is not convincing that judges of this
Court including learned justices will all of them be after this
pending case that the gendeman faces. And that this that finding
which the Commission will be about will influence the working of this
Court beats everything. So that that one is something that one should
dismiss instantly.

I am not
suggesting that the facts connected with the circumstances of the
charge against the Applicant will not be touched. The probability is
there. But what is important is that anything about those facts or
circumstances will be a then slice of the activity of the Commission
judging from its terms of reference. Because the Commission is not
about the Applicant nor the case that the Applicant faces. It will
occupy a very small piece of activity. That is why Counsel for the
Applicant fount it difficult to show any precedent before this Court
about an objection of this kind. And indeed there was no precedent
for this kind of objection. It could be true that, as Mr. Mosito
pointed out, once people who were appointing Commission's were faced
with a situation like this one they opted out not to issue a
Commission. But he did not show us a precedent. Indeed it was hard to
find.

In the
Section 3 of the Public Inquiries Act, the reading of subsection goes
as follows:

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"3(1)
If the Prime Minister considers that it is in the public interest to
do so, he may by notice published in the gazette appoint a commission
of inquiry consisting of one or more Commissioners to inquire into
any matter that is connected with the good government of Lesotho or
is a matter of public concern." (required emphasis)

Mr.
Mosito submitted that in terms of this subsection there were many
objectionable ways in which the Honourable Prime Minister went about
the opportunity of the Commission. That while the Prime Minister was
entitled in the public interest to appoint a Commissioner of a
Commission of Inquiry. It was fair if he considered that he ought to
do so and this he could do following on his own good judgment. And
that he could do it subjectively that is concerning things that he
himself considers proper or deserving in the circumstances. But Mr.
Mosito complains that it does not show in the legal notice that the
Prime Minister in fact considered it to be a matter in the public
interest.

Counsel
was suggesting that if it was so it should have shown in the wording
contained in the legal notice. That nothing by way of words show that
he did in fact consider things in the public interest. Mr. Mosito
uses the lawyers' words that it is a subjective way in which the
Prime Minister goes about considering that a matter is of public
interest and that is, to repeat the judgment is his alone. But then
as he did argue a matter has either to be connected with good
government or be a matter of public concern. But then the test is
objective that is whether the Prime Minister did in fact consider a
matter of public concern or whether a matter was connected with good
government. He said certain things must show if a matter was
concerned with good government of Lesotho or was a matter of public
concern.

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I have
found it difficult to interpret public interest and public concern as
different concepts. And in (act one of the South African cases that
Mr. Mosito quoted GOVERNMENT WORKERS UNION vs SCHOEMAN 1949(2) 463
which actually dealt with the treatment of the meaning of the two
words or phrases/expressions. It actually declared that the meaning
and effect were mutual and translatable. That they meant the same
thing. If a matter is a matter of public interest is also a matter of
public concern as it was reasoned. And this was corroborated in one
of the decision spoken about yesterday I suspected it was this one of
CONELLY v DIRECTOR OF PUBLIC PROSECUTIONS or CHANDLER v DPP AC 763
(which I had not read). It says this is no how a matter of public
interest cannot be matter of good government if that matter is
investigated by government. A government working for good government
will investigate matters of public interest and public concern. So
that to speak of good government in this context and that of public
concern is redundancy. They seem to have one meaning and effect. If
the Prime Minister did not spell out good government separately or
public concern separately he was not doing what is unusual in this
circumstances where there is mutuality of the two concepts.

I now
speak about this matter of staff that is to be found in section 10 of
the Legal Notice. It appears most clearly in terms of the Public
Inquiries Act that the Prime Minister ought to do nothing more than
to appoint a Commission. He does not appoint other people. A
suggestion was being made, a suggestion, that he appointed the
Secretariat in section 10. I agreed that the way section 10 is drawn,
as I found, there was no other interpretation that he did that the
Prime Minister did so appoint. The question is whether it was within
his power. It was not. It is because there are other people who are
supposed to do that. The Attorney General does the other things
(appointments). The appointed Commissioners do the other
appointments. But one cannot speak of this exercise of the Prime
Minister which 8 appears flawed or irregular as vitiating the
operation of the Commission.

Obviously
the Prime Minister did more than what he should have done because
this interpretation of section 30(b) of the Interpretation Act 1977
contemplates situations such as this. Then the Honourable Prime
Minster should have explained why and how the Secretariat has to
exist as it does. May be he should have referred to another Minister
having made the appointments or the Attorney General having done so
by appointing a person like Mr. Makhethe. So there is no doubt that
only if the appointments were not done by him this does not show on
the face of the legal notice. This is mere surplusage. The Prime
Minister has done more than what he should have done. I need not even
declare that the appointments were incorrect. I will later show the
reasons why I should not.

The
comments by Counsel about the so called origins of the Commission of
Inquiry are correct. Originally the appointment of Commissions was a
Crown prerogative. It was what is sometimes called a ceremonial
privilege, Executive prerogative, whatever one may or would call it
according to the jurisdiction and circumstances. Meaning that the
Crown or the Executive President would be using this so called
prerogative. Prerogative is a residue of all powers and acts of
government. This means that when all have been empowered to do
certain things either by Acts of Parliament or other sources the
remainder of the power which are unallocated belongs to the Crown for
purposes of functionality completeness and effective government. And
this was the powers through which Commissions were appointed. In this
country all was done was to give Commissions certain powers by
proclamation. So that they come to deal with certain powers dealing
with witnesses and punishing people for disobedience of certain
orders was one of the powers.

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As it has
been explained in argument of Counsel all the exercises and powers of
prerogative were consolidated in the Public Inquiries Act No.24 of
1994. Meaning that all these experiences that belonged to the period
of the prerogative were now concretized or codified in an act of
parliament which has now become a complete law. There were certain
experiences and precedents built into that Act of 1994. It is also
called an administrative act, meaning that everything that has to do
with the meaning the powers and regulation of every Commission of
Inquiry is to be found in this Act. It actually means more than that.
It means that if there are protections or remedies they should be
found in that Act. If anybody complains against any functions of a
Commission then we must investigate as to what is contained in the
Act itself. How far it protects one? How far it prohibits certain
things to be done and how far it allows certain things to be done.
Hence the question would be: Does this Applicant have any remedy in
the Act itself as on the alternative of scuttling the whole
Commission. My belief is that this was not hard to find.

Looking
at section 12 of the Act of 1994 one is allowed Legal Counsel. It is
provided that a Counsel will be allowed to be called when a person's
interest is at risk before a Commission. In the Act in any matter of
concern to a person the Commission is enjoined to call that person.
And then one can make his submissions or representations. This is
more so if a person such as the Applicant initially has an advance
warning that his matter will be touched by the investigations. The
Applicant therefore has an initial notice that his matter may
feature. Then one should speak of section 8 of the Act as follows.

A report
of a Commission may be excised. A portion can be taken out of the
report. There are various reasons why a portion of a report can be
taken out. Vide section 8(3). One of them is national security. One
of these is privacy of an

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individual
and most important "the right of a person to a fair trial."
I am not even suggesting that I would know how the Prime Minister
would come about the exercise of taking out a portion as provided in
the Act. But my suspicion is that an Applicant would have to move
before the Court having heard what the Commission was about
concerning his interest. Someone would, amongst others, have to come
to Court and say that a certain portion of the report ought to be
taken out having heard what the commission was about concerning his
interest. I suspect that someone would have to do so on his own
initiative. Indeed we even have instances in South Africa where
people have moved for taking out certain contents or portions of a
Commission's report. These we read about so many times in the papers.
An example was a report by the T R C where the ANC party had asked
for removal of a certain portion which worried the party. If I recall
well Honourable Mangosutu Buthelezi or some other luminary had had
such a motion or a complaint (not necessarily similar to the present)
made. It means that this can be done. And this seems to be the
protection provided for under section 8 of the Act.

I want to
re-visit the matter of public interest and public concern that
Counsel has spoken about yesterday. Why this matter assumed interest
was that things such as the sport of rugby had to be put under
Commissions for Inquiry. The administration of the sport such as
rugby were being inquired into. And in that South African case that
Mr. Mosito has spoken about it was a Commission into the
administration of rugby. And then a good and legitimate question was:
Is this matter a matter of public interest? A management or
mismanagement of a sport by sportsmen and administrators. Should the
President actually institute a Commission for that marginal and
sectional sport that some people took rugby to be. That is why it was
important to investigate whether it was a matter of public concern or
a matter of public interest. Because the sport was perceived to be a

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marginal
or sectional one by some people. The interpretation of the two
phrases and the decision on their interpretation were made in that
context of that debate.

Here we
are to haggle about a matter of public importance as to whether it
was a matter of public concern or interest where virtually to whole
town centre was burnt down after a visible public commotion. Where
there was disturbance spreading over three months. And a question is
now being asked whether this is matter of public concern and public
interest. And indeed the Prime Minister may have not spelled it in so
many words such as:

"I have considered that because of this and that a Commission
should be appointed."

But
looking at the terms of reference themselves, even man in the street
can see that this is a matter of public concern. And as a Court would
take judicial notice of the fact that there was disturbance of that
kind which would have to be inquired into. And I do take judicial
notice. And I therefore do not understand what more explanation would
be needed from the Prime Minister. The introduction to the legal
notice tells us many things. That he acted in terms of section 3
which speak about public interest and public concern. I would further
speak about the meaning of those two words to say that. To have a
concern in a matter is to have an interest in the matter and to have
an interest is to have a concern as every student's dictionary will
show.

I come to
what I suspect will be my last comment. And a very important one
coming to the issue that I earlier on spoke about. It is about the
discredonary remedy. And what declaration means where a Court is
being asked to declare some action invalid. What is called for from
the Court and the aspect of delay. This aspect of delay has been
discussed in so many cases the Court of Appeal. The last

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one which
I recalled was that one of LESOTHO BANK v STANLEY MOLOI. That in
litigation whether someone has come to Court on time or whether not
is very important.

When the
Court is being asked to give a discretionary remedy lawyers always
pretend not to understand this. Because they forget that litigation
is a serious thing. It is a serious thing in which one must show bona
fides (good faith). If one does not demonstrate serious interest or
if one does is very important. Delay is very important. The Court
having to speak about delay because litigation is a serious activity.
It is costly and it is expensive to run. The Court is this claim for
a discretionary remedy does not look at the claimant alone. It does
not look at one's own interest only. It also looks at the interests
of other people. That is why in an extreme a Court can deny one his
rights if the interests of other people are affected. And if when one
is to be given the relief it adversely affects the other people. Most
of the time innocent people could be inconvenienced. This is more so
when a matter is said to be urgent (as the present one) when it
should not have been so.. That is why lawyers can cleverly create
urgency. They do so because it gives them certain advantages mostly
some clients of theirs would be interested in merely embarrassing
other people (by getting undue orders) to their own ends. That is why
you will hear a litigant say "Even if I do not ultimately get
what I claim "Ak'u mo tsoare matsoho" (Just interdict him
in the meantime or for a while"). "Even if I do not get
what I want tie his hands". That is the trick about seeking
interdicts when they are not being genuinely sought. That is what
lawyers do.

And the
Applicant herein did say the matter is urgent. It was not. He had
created the urgency himself. How has he done it? The Commission was
appointed on the 9th of March 2000. He waited and waited and came to
Court on the 20th of April 2000. At the time government must have
gone into costs and expenses of

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bringing
up/setting up the Commission. And it was during Easter vacation. It
is against this background, the inconvenience of other people, the
costs and expenses which things are important and matter to a Court.
If the Applicant came to Court at the time that he did how does he
demonstrate that he has good interest and bona fides in this
litigation? He does not.

We hear
references to the Deputy Prime Minister having said something in
parliament about the existence of the Commission or intention to set
up on a certain day in April. Those things do not interest us as a
Court. What is interesting or of concern is the time that the Legal
Notice appoints as the one of the establishment of the Commission
which was the 9th of March 2000 appointing the date of the 25th April
2000 as date of commencement of the work of the Commission.

These
other matters found in the answering affidavit including of course
that the Prime Minister has said that it is intended that the whole
report will be publicized to the whole world and international
institutions, this primarily (as it was alleged) to prejudice or
aggravating the potential for unfair trial do not concern us. They
are threats of a merely potential nature and as such do not concern
us here. We are concerned that everybody including the Prime Minister
should comply with the law and the procedure set out in the Act. And
section 8 tells us what the Prime Minister should do. If he goes
about publicizing the Commission at the United Nations and such like
that would not be our business. Our business is that he must comply
with the law.

Where
certain provisions of the law are not complied with that we must deal
with. This includes of course the disputed Secretariat. About that if
the Applicant come to Court on the 20th April 2000 one would surely
find fault as I have with the

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contents
of section 10 as I have. But how can it be rectified in the
circumstances of the Commission having even commenced before the
hearing of this application that is on Tuesday the 25th April 2000.
Would it be judicial discretion and would it make sense if I were to
order for expunction of section 10? And say all that the six people
have been doing had amounted to nothing? If I am expected to apply
judicial discretion is this what I may do. Where one was seeking for
assistance of this Court at that hour of the 20th April 2000.

My
finding is that this Applicant has got remedies in the Public
Inquiries Act itself. He has got a protection of his rights in that
Act. He must exercise them accordingly. The Act prescribes remedies
to people such as Applicant to which he must resort. He cannot expect
the scuttling of the Commission.

So this
application fails with costs. Meaning that the Commission might as
well proceed in its work.

T .
MONAPATHI

JUDGE

27th
April 2000