CIV/APN/99/85

IN THE
HIGH COURT OF LESOTHO

In the
Application of:

LAW
SOCIETY Applicant

v

THE HON.
THE PRIME MINISTER 1st Respondent

ATTORNEY-GENERAL
2nd Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice D. Levy on the 6th day of May, 1985.

By reason
of the great importance and urgency of this application, I have
decided not to make reference to the numerous authorities
quoted to
me by Mr. Farlam in his eloquent and most able address on
constitutional law. I hope I have not lost sight of the principles

adumbrated by him.

This
application concerns the appointment of Mr. Semapo Peete as an acting
Judge of the High Court of Lesotho which appointment
was made by the
King of Lesotho acting on the advice of the Prime Minister. I assume
that in so doing, the King purported to exercise
the powers conferred
upon him by Section 3(1) of the High Court Act 5 of 1978 nor am I
aware of any other statutory authority to
make such an appointment.
Mr. Farlam for the applicant has challenged this appointment on the
grounds that it was made beyond the
powers vested in the King by the
pro-vions of the High Court Act of 1978 and he refers to Sec­tion
3 (1) in terms of which
it is the King who shall appoint the Chief
Justice and Judges acting in accor­dance with the advice of the
Prime Minister,
while in terms of Section 3(4), it is the Prime
Minister who shall for the reasons set out in that Section appoint
acting judges.

2

Sub-section
5 of Section 3 also provides that such acting Judge shall so act for
the period of his appointment or if no such period
is specified
,until his appointment is revoked by the Prime Minister. There would
therefore appear to be no explicit authority
vested in the King to
make or revoke an acting appointment and that it is only the Prime
Minister who may so appoint an acting
Judge and revoke such an
appointment. Mr. Farlam has argued that the prerogative of the throne
in the Kingdom of Lesotho has been
defined by the High Court Act in
so far as it affects the appointment of Judges and acting Judges of
the Courts of the Kingdom,and
that once that is so,then the King may
not fall back upon his common law authority whatever its terms may
have been, to appoint
acting Judges.

1 am of
the view, however, that an authority vested with power to appoint a
Judge may also appoint a Judge to fill a somewhat lesser
office, that
is,to act for a limited period or for an indefinite period.

I hold
the view that the power to appoint a Judge to fulfil the judicial
functions required of a Judge, must carry with it by necessary

implication, the power to appoint a Judge to fulfil the same
functions for a limited or indefinite period. I find support for this

view in the consideration that the wording of Section 3(1)
empower­ing the King to appoint Judges is in peremptory form,
while
the wording of Section 3(4) empowering the Prime Minister to
appoint acting Judges is permissive only. It follows that the Prime

Minister's authority to appoint acting Judges is only supplementary
or additional to the King's power to appoint an acting Judge.

The
consequences of another interpretation of the High Court Act would of
course, carry with it the impli­cation that my own
appointment,
which is in similar terms to that of Mr. Peete, has been invalidly
made, and that all these proceedings before me
would, therefore
become nullity.

In the
view I form, while I am not anxious to protect myself in my own
office, I nevertheless find that

3

Mr.
Peete's appointment was validly made by the King.

I cannot
agree that the High Court Act has put the authority of the Throne to
appoint Judges and acting Judges within the narrow
confines of Mr.
Farlam's interpretation of the Act, that is, that only the King may
appoint Judges and only the Prime Minister
may appoint acting Judges.
I am constrained to the view that the King may also appoint acting
Judges and that this is not the sole
prerogative of the Prime
Minister. I think it must be regarded as an incident of the powers of
the King to appoint judges that
he may also appoint acting Judges. I
accordingly find that the appointment of Mr. Peete as an acting Judge
was properly and validly
made.

I turn
now to consider the allegation that Mr. Peete's permanent employment
in the Government service in the Law Office renders
him unfit for an
acting judicial office . It has not been suggested that Mr. Peete is
not qualified to act as a Judge. On the contrary,
the applicant has
hastened to assure the respondents and this Court, and I quote from
the applicant's memorandum addressed to the
Prime Minister, the first
respondent, that :

"Mr. Semapo Peete is regarded by his colleagues and members of
the bench as an outstanding member of our profession and a

practitioner of the greatest integrity and dedication".

But
relying upon the provisions of Section 16(6) of the Human Rights Act
No. 24 of 1983, which states in its relevant form that
"The
State shall have the duty to guarantee the independence of the
Courts", the applicant contends that Peete's appointment
as an
acting Judge is a violation of that Act and it seeks a declaritur to
that effect from this Court.

The first
question that arises and one that has been adequately dealt with by
Mr. Farlam is the justi-ciability of this provision
of the Human
Rights Act. I am prepared to accept without deciding that the Act is
justiciable at the instance of concerned individuals
and that the Law
Society as applicant in this matter had a proper interest in bringing
these proceedings.

4

It
remains, therefore, to consider the grounds upon which the applicant
relies for the conclusion that Mr. Peete's appointment is
a violation
of the Human Rights Act. These arise from the fact that at the time
of his appoint­ment as an Acting Judge, Mr.
Peete was and remains
a member of the staff of the Director of Public Prosecutions and of
the Solicitor-General who are the agents
in litigation for the
Government of Lesotho.

The
applicant infers from this fact that Mr. Peete remains under the
authority and control of the Director of Public Prosecutions
and of
the Solicitor-General. This is an unjustifiable inference.

While no
doubt at the end of his appointment, Mr. Peete may well return to his
employment on the staff of the Director of Public
Prosecutions and of
the Solicitor-General, the suggestion that while on the Bench,he will
be subject to or that he would be asked
to accept or if asked that he
would yield to the directions of the Director of Public Prosecutions
and/or of the Solicitor-General
is not only unjustifiable and
unwarranted but a direct contradiction of the applicant's own
testimonial to Mr. Peete as a prac­titioner
of the greatest
integrity and dedication.

It is my
understanding of the motivation of a Government in appointing its
Judges and acting Judges, that they are chosen not only
for their
ability in the practice of Law but also and equally importantly
because they are persons whose integrity is above reproach.

To
suggest of such a person as Mr. Peete, therefore, that he might well
in the execution of his functions as a Judge accept the
directions of
the Director of Public Prosecutions or of the Attorney-General is
indeed an unwar­ranted attack on his character
and integrity.

It has
also been suggested that since Mr. Peete had never been a member of
any Judicial Bench anywhere, and that his only experience
in Law has
been gained in his present employment, that this also would make him
the more amenable to such influence as the Director
of Public
Prose­cutions or the Attorney General might wish to subject him
to. Apart from Mr. Peete, this amounts to be an attack

5

on the
integrity of the persons holding these offices which I regard as an
unwarranted denigration of their characters and integrity
for it
contains the broad infe­rence that Mr. Peete's seniors in those
Departments have and would continue to exercise their
authority over
him, while he acts as a Judge in matters that concern only the
litigants before him to the improper advantage of
the Govern­ment
of Lesotho as a potential litigant in any such disputes.

By the
oath of office which Mr. Peete swore before the Chief Justice, he
undertook to administer justice to all in accordance with
the Laws of
Lesotho without fear, favour or prejudice. If applicant's testimony
to Mr. Peete's character is justified then there
can be no reasonable
grounds for fear that he might act in breach of his oath or in such a
way as to threaten or undermine the
independence of the Courts. On
the contrary, of such a man, we can expect that he will do all in his
power to uphold it, and if
Mr. Peete is somewhat lacking in
experience, then we can expect that he will nevertheless learn to
cope adequately with his work
on the bench.

It has
also been argued before me that not only should justice be done but
that it also should manifestly be seen to be done. This
argument was
advanced in the applicant's memorandum to the Prime Minister before
the launching of these proceedings and it was
said then with some
force perhaps that in matters where the Government of Lesotho or the
Crown are litigants even if only in the
broad sense then justice
would not palpably be seen to be done where the matter is being tried
before an acting judge who, it might
almost be said has been seconded
to the bench in a temporary capacity. This is the expression of a
fear that Mr. Peete will possibly
defer the administration of Justice
to the interests of his employer in breach of his oath. As a
reasonable man, I would rather
believe and expect that Mr. Peete will
not be subservient to the lesser inte­rests of the Crown and the
Government and that
he will pay deference only to their and his true
interests which always are to administer justice to all without fear,
favour or

6

or
prejudice. I prefer to believe also that both the Director of Public
Prosecutions and the Attorney-General would expect the interests
of
their offices to be protected by Mr. Peete only where justice demands
it.

Applicant's
counsel has conceded that if Mr. Peete had been appointed as an
acting Judge for, say two months that this difference
in the term of
his appointment would be sufficient to give him such independence in
the eyes of public and of the applicant, as
would lead them away from
any thought that he is not acting independently in his office on the
bench.

To me the
difference between such an appointment and Mr. Peete's present
appointment is so small that I cannot see that any inference
can be
drawn from Mr. Peete's actual appointment that could not be drawn
from such an hypothetical appointment. And, if not from
the latter,
then it cannot be drawn from the terms of the present appoint­ment.

To say
that Mr. Peete's independence would be visibly affected by an
indefinite appointment and not by an appoint­ment for some
fixed
period, is to state a difference which has no existence either in
appearance or content.

Mr. Peete
no doubt will return to his employment in the Law Office on the
termination of his appointment as an acting Judge, but
while on the
bench as an acting Judge, he will have laid aside the duties and
responsibi­lities of his employment. And even
if he is an
ambitious man he would know that his ambitions will not be advanced
by any untoward care or improper concern for the
interests of the
Crown or of the Government. In my view, no reasonable man would have
such thoughts in his mind, and he would be
satisfied as I am that Mr.
Peete will find for the State and for the Government and for the
Crown only where justice demands it.

There
might be some support to be found for the respondents in the
provisions of Section 14 of the High Court Act, which exempt
acting
Judges from the prohibition against holding other offices of profit.
I did not find

7

it
necessary to consider this aspect in view of my judgment as I have
already expressed it.

For these
reasons, I dismiss the application.

There has
been notice of an application given by the respondents of their
intention to seek atorney and client costs against the
applicant. I
am satisfied that the applicant has been motivated by the unselfish
wish to rectify a situation which it bona fide
believes to be
contrary to the best interest of the public and of the courts and I
am satisfied that bringing this applica­tion
in no way merits any
mark of displeasure by the Court.

The
application is accordingly dismissed with costs.

D. LEVY

ACTING
JUDGE

6th May,
1985.

For
Applicant : Mr. Farlam,

For
Respondent : Mr. Tampi.