CIV/APN/248/2000
IN THE HIGH COURT OF LESOTHO
In
the matter between:-
MASUPHA EPHRAIM SOLE APPLICANT

vs

GUIDO PENZHORN 1^st RESPONDENT

HJALMER H.T. WOKER 2^nd RESPONDENT

JOSEPH TEBOHO MOILOA MOILOA 3^rd RESPONDENT

ATTORNEY GENERAL 4^th RESPONDENT

DIRECTOR OF PUBLIC PROSECUTION 5th RESPONDENT

JUDGMENT (REASONS FOR)

Delivered by the Honourable Mr Justice S.N. Peete on the
1^st August 2000

On the 11^th July 2000 Mr Phoofolo appeared
before me in chambers and moved an urgent application ex parte in
which he sought and obtained an
interim order couched in the
following terms:-

"1. That a Rule Nisi be, and it is hereby issued
calling upon the respondents to show cause, if any, why-

2

1. 
   The periods of notice provided by the Rules of Court
   and treating this matter as one requiring urgent attention are
   hereby dispensed
   with;

   
   

2. 
   First, second and third respondent should not be
   interdicted from taking any further part in the preparation for
   an/or presentation
   at the trial of the charges preferred against the
   applicant and accused in the Criminal trial No.111/99, on behalf of
   the Crown,
   which Criminal trial is presently pending before this
   Honourable Court.

   
   

3. 
   In the event that respondents oppose this application,
   respondents
   should not be directed to file their opposing papers
   on or before the 20^th July, 2000, and applicant to file
   replying affidavit, if any, on or before 26th July, 2000; and that
   the matter be placed on the
   roll for argument on the 31st July,
   2000.

   
   

4. 
   Respondents should not be directed to pay for the costs
   hereof in the
   event that this applicant is opposed.

   
   

5. 
   Granting applicant further and or alternative relief.

   
   

1. Prayer 1 (a) to operate with immediate effect as an
interim relief." I also ordered that Prayers (a) and (c) operate
with
immediate effect.

3

The respondents having been duly served on the 11th July
2000 with the interim order and founding affidavits deposed to by the
applicant
filed their intention to oppose on the 18th July 2000 and
elected to raise certain points of law without filing any answering
affidavits.
Rule 8 (10) (c) reads:-

"Any person opposing the grant of any order sought
in the applicant's notice of motion shall-

(a)

(b)

(c) if he intends to raise any question of law without
any answering

affidavit, deliver notice of his intention to do so,
within the time stated setting forth such question."

For brevity, the respondents raised the issue of lis
pendens contending that the relief sought in Prayer 1 (b) of the
notice of motion
had been previously raised in the criminal
proceedings in King vs Masupha Ephraim Sole and Others

CRJ/T/111/99 and is a issue pending to be determined by
my Brother Cullinan A.J. The respondents attach an annexure "A"
titled -

NOTICE OF INTENTION TO OBJECT, TO EXCEPT AND TO QUASH
THE INDICTMENT, SECTIONS 152 (1) 153(1) AND 162 OF THE CRIMINAL
PROCEDURE AND
EVIDENCE ACT 1981.

More importantly para 5 of this document reads-

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"5. The accused further contends that the
prosecutors are not objective, impartial and detached as prosecutors
are expected to
be and that the handling of this trial by prosecutors
who are perceived to be partial, and biased (as they represented the
interests
of the complaint herein in other matters) will deprive him
of his fundamental rights to a fair trial as envisaged in Section 12
of
the Constitution of Lesotho 1993. If the prosecutors do not
voluntarily withdraw from the trial of the accused the accused
intends
to apply to this Honourable Court for an order interdicting
and restraining them from further taking part as prosecutors in the
criminal
matter of the accused."

It can be safely assumed that after the notice (Annexure
"A") was served on the Director of Public Prosecutions on
the 9th
June 2000, the original was placed in the file of the
criminal proceedings in CRI/T/111/2000. The question therefore is
whether the
relief or issue raised in prayer 1 (b) is pending before
Cullinan A.J. though not yet decided; In fact in this notice the
applicant
intimates his intention to proceed with the said
application to cause the first and second respondents to be
restrained and interdicted
by "this Honourable Court" -
meaning the Criminal Court in CRI/T/111/2000 - on the grounds the
said respondents will be
biased and partial as prosecuting counsel
thus violating his fundamental right to fair trial as guaranteed
under Article 12 of the
Constitution of Lesotho. Indeed the lengthy
affidavit of the applicant catalogues several grounds for attacking
the impartiality
of the two respondents - (See para 14) - in fact he
alleges categorically that they are even potential or possible
witnesses in the
forthcoming criminal trial (para 21) and have
personally even participated in police investigations.

5

In my view the issue Us pendens should be interpreted
sufficiently wide enough to make provision for cases where a lis has
only been
formally proposed to be instituted - Van As vs Appollus &
Another 1993 (1) SA 606; William vs Shub 1976 (4) SA 567; Noah vs
Union
National South British Insurance Co.Ltd 1979(1) SA 330 at
332-333 A;

In my view the applicant had already mooted the
application and given a formal notice to the Director of Public
Prosecutions requesting
him to withdraw the two respondents as his
representatives in the criminal trial failing which he has intimated
and proposed his
intention to apply to the "trial court"
for an injunction disqualifying the two respondents as prosecutors on
the grounds
that they were biased and not impartial.

When the issue of lis pendens is raised and has been
sufficiently established, the court has discretion to exercise; and
in this case,
the question is whether the application can be more
justly and equitably and indeed conveniently dealt with by the
presiding Judge
in the criminal trial. (Yekelo vs Bodlani 1990 (3) SA
971 at 973 -Considerations of convenience and fairness are important
- Van
As vs Appolus (supra) at 610D. In this case it is not in doubt
that my Brother Cullinan A.J. has seen the Notice "Annexure A"
and regards the subject matter of impartiality of the two respondents
as a matter to be considered before plea. This criminal trial
has
been set down for hearing from Tuesday 1st to 4th August 2000. Even
if the applicant would not raise it before the appellant
pleads, the
trial Judge could bring the notice Annexure "A" mero motu
to the attention of the applicant.

6

This notice - most importantly - stands "unwithdrawn"
from the court file in CRI/T/111/99.

For this court and indeed any court to be seized with
this matter in a proper manner, the applicant must lodge an
application in terms
of Section 22(1) of the Constitution of Lesotho.
(This procedure has however not been followed by the applicant). It
reads :-

"22. (1) If any person alleges that any of the
provisions of sections 4 to 21 (inclusive) of this Constitution has
been, is being
or is liked to be contravened in relation to him (or,
in the case of the person who is detained, if any other person
alleges such
a contravention in relation to the detained person),
then, without prejudice to any other action with respect at the same
matter
which is lawfully available, that person (or that other
person) may apply to the High Court for redress.

2. 
   The High Court shall have original jurisdiction -

   
   

3. 
   to hear and determine any application made by any
   person in pursuance
   of subsection (1); and

   
   

4. 
   to determine any question arising in the case of any
   person which is
   referred to it in pursuance of the subsection
   (3),

   
   

and may make such orders, issue such process and give
such directions as it may consider appropriate for the purpose of
enforcing
or securing the enforcement of any of the provisions of
sections 4 to 21 (inclusive) of this Constitution:

Provided that the High Court may decline to exercise its
powers under this subsection if it is satisfied that adequate means
of redress
for the contravention alleged are or have been available
to the person concerned under any other law."

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If it was the applicant's case that his right to a fair
trial under section 12 of our Constitution had been violated or was
likely
to be violated a formal application on notice ought to have
been made in terms of section 22 (1). I am acutely aware that the
Chief
Justice has yet to make rules with respect to practice and
procedure for the enforcement of the protective provisions under the
Constitution.

In the case of Smyth vs Ushewokunze and Another - 1998
(3) SA 1125 Gubbay CJ. - in dealing with an application almost
similar the
present observed that the objectivity, detachment and
impartiality of prosecution were essential components to a fair trial
as envisaged
under section 18 of the Constitution. Without deciding
the issue in instant case, I can only point out that Gubbay CJ.
described
the right to a fair trial as " a constitutional value
of supreme importance".

My Brother Cullinan A.J. is already seized with the
criminal trial this week and in my view convenience and indeed
justice requires
that he, and he only, should determine the issue -
already on notice - whether the participation of the two respondents
as prosecutors
in the criminal trial due to start before him will
prejudice the right of the applicant to a fair trial under section 12
of our Constitution.
The application before me in so far as it seeks
to enforce section 12 of the constitution is improperly before this
court because
a formal application under section 22 (1) of the said
constitution has not been made to invoke the constitutional
jurisdiction of
the court; the application has been however made ex
parte under the Rule 8(22) (see Certificate of urgency signed by Mr
Phoofolo
in which it should have been stated that relief under Prayer
1 (b) was being sought under section 22(1) of the Constitution.) In
my view

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the High Court can determine this matter only if it has
original jurisdiction as a constitutional court. Section 22 (2) of
the Constitution
reads :-

"The High Court shall have original jurisdiction -
(a) to hear and determine any application made by any person in
pursuance
of subsection (1)"

I therefore hold that since the provisions of section 22
have not been invoked this court cannot sit as a constitutional court
mero
motu and even on this ground alone I am of the view that the
application ought not be allowed. The constitutional jurisdiction of
this court is specially created by Section 22 (2) of the Constitution
and must be specially invoked. It should not be assumed. The
unlimited jurisdiction of the High Court under the High Court Act of
1978 relates to "civil or criminal proceedings and not
matters
constitutional. Subsection 22 (5) of the Constitution reads:-

"Parliament may confer upon the High Court such
powers in addition to those conferred by this section as may appear
to the necessary
or desirable for the purposes of enabling that court
more effectively to exercise the jurisdiction conferred upon it by
this section".

In his heads of argument (paragraph 4) the applicant
states:-

"The subject matter of the application is an
interdict which raises the question of the applicant's right to a
fair trial in
terms of the Constitution."

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I do not agree that sitting as a trial Judge in the
criminal case, my Brother Cullinan A.J. is precluded from sitting as
constitutional
court if the provisions of section 22(1) (2) of the
Constitution are properly invoked before the appellant pleads to the
indictment.
This section reposes in High Court wide and unfettered
discretion to make any order it considers appropriate for the purpose
of enforcing
the provisions of Bill of Rights (See Smyth vs
Ushewokunze (supra) at p.1141).

I am aware of the provision of High Court Rule 22 (15)
which provides:-

"The court hearing an application whether brought
ex parte or otherwise may make no order thereon, save as to costs, if
any,
but grant leave to the applicant to renew the application on the
same papers supplemented by such affidavits as the case may require."

In this case, the applicant's attorney was fully aware
that Annexure "A" had been filed in the court file of the
criminal
proceedings. He ought to have been aware that before the
High Court can make a pronouncement under section 12 of the
Constitution,
its constitutional jurisdiction must be specifically
invoked by the applicant under section 22. This has not been done in
this application.
(Masefabatho Lebona vs DPP- 1997-98 LLR 143)

10

I therefore uphold the points of law raised in limine by
the respondents and dismiss the application with costs which should
include
costs of one counsel.

S.N.PEETE
JUDGE

For Applicant : Mr Phoofolo

For Respondents : Mr Dickson SC and

Ms Hermaj SC

Mr Sello