CRI/APN/152/2000

IN THE HIGH COURT OF LESOTHO
In the matter
between

MAKHEBE RAMOKOENA APPLICANT

AND
THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

For applicant: Mr Khauoe
For Respondent: Ms
Dlagamandla

RULING

Delivered by the Honourable Mr Justice T. Monapathi
on
the 3^rd day of May 2000.

This was a review case on Accused's application after
his conviction. In the application the Crown did not really offer any
opposition.
1 did not allow the application on its grounds.

I did not find why the Magistrate did not, after asking
the Accused to plead, ask him if he understood the charge.

Secondly, I did not find why the Magistrate did not ask
the Accused whether he had a lawyer of his choice or not. That would
lead
to the issue of whether a subsidized representation would be
sought if events led to that.

Thirdly, I did not understand why the learned Magistrate
could not state that the statement in the outline of the Public
Prosecutor
was translated into English having

-1-

been interpreted from Sesotho language because of the
two requirements which follow.

Fourthly, it is a requirement that proceedings should be
rendered in a language that an accused person understands, which in
all probabilities
of this case was Sesotho language. This fact should
find a place in the record of the initial statement of the
Magistrate. If not
a serious doubt arises more especially when
attempt was not made to have the learned Magistrate states what the
position was. In
that case I would have decided in the way I would
having noted that fact.

Fifthly, a magistrate is required to cause proceedings
to be interpreted from Sesotho to English and vice versa. It did not
appear
that this was done. Hence the absence of any statement to that
effect nor indication on the charge sheet that there was an
interpreter.
See REX VS MAFEKA CRI/T/10/95, Ramodibedi J., 31^st
October, 1996.

I ordered that the matter be tried de novo within 30
days from today. Accused remains remanded in custody until he may
have applied
to be admitted to bail. My reasons will follow. All
should be brought to the attention of the Chief Magistrate and the
Director of
Public Prosecutions.

T. MONAPATHI
JUDGE

CIV/APN/228/98
IN THE HIGH COURT OF LESOTHO

In the matter between:

MASUPHA MOHALENYANA SEEISO MAAMA APPLICANT

and

CHAIRMAN CHIEF DISCIPLINARY COMMITTEE 1^st
RESPONDENT

MABELA SEEISO MAAMA 2^nd RESPONDENT

MINISTER OF HOME AFFAIRS 3^rd RESPONDENT

ATTORNEY-GENERAL 4^th
RESPONDENT

For
Applicant : Mr K Mosito

For Respondents : Mr M Mapetla

REASONS FOR JUDGMENT

Delivered by the Honourable Mr Justice T Monapathi on
the 22^nd day of August 2001

The following are the reasons for my ruling of the 12^th
April 2001. In this application the Applicant sought the following
orders: "1. Dispensing with the ordinary rules of Court
pertaining
to the periods of

notice and modes of service.

2

2. Directing the First Respondent to dispatch a record
of the disciplinary proceedings held against Applicant on the 1 l^th
June 1998 to this Honourable Court and delivering same to the
Registrar of this Court within fourteen days (14) for review.

2. A rule nisi be issued returnable on a date and time
to be determined by the above Honourable Court calling upon the
Respondent
to show cause why:

1. 
   The disciplinary decision by the 1^st
   Respondent against Applicant
   handed down on the 11^th
   June 1998 shall not be reviewed corrected
   set aside and be
   declared null and void.

   
   

2. 
   The operation of the said decision shall not be stayed
   pending
   finalization hereof.

   
   

3. 
   The purported filling of the chiefly position of the
   Applicant by
   another person shall not be declared null and void.

   
   

4. 
   The Respondent shall not be restrained from filling the
   chiefly position with another person pending finalization hereof.

   
   

5. 
   Applicant shall not be granted costs hereof in the
   event of opposition."

   
   

So protracted became this litigation.

The Applicant had raised a point of law that in terms of
section 17{j) of the Chieftainship Act No. 22 of 1968. It was that
there
ought to have been a recommendation by the Court (Majara Local
Court) which convicted Applicant of a criminal offence to the effect
that disciplinary action be taken against him. And that in the
absence of such recommendation the Committee had misdirected itself
in taking action against Applicant. At the first hearing of the
application the Applicant's Counsel has to concede that the proposed
point of law was misconceived inasmuch as the said section 17(j) had
been amended by section 8(2)

3

of the Chieftainship (Amendment) Order 1972. This
amendment did away with the requirement that there shall be a
recommendation by
a convicting Court before disciplinary action could
be taken against a chief convicted of a criminal offence.
Consequently, the Crown
submitted that the application stood to be
dismissed on that ground.

Applicant's Counsel had further contended that he was
going to apply for calling of viva voce evidence on ground that the
witness
had not been allowed to give evidence and when the Court
rejected the request to lead evidence the Court had been unduly
influenced
thereto. The Respondent's Counsel had indicated that this
approach was going to be strongly opposed. There were a number of
reasons
on which the Respondents wanted to show that the request was
devoid of merit. The request was not pursued. This may presumably
have
been because on the last day of hearing the record of
proceedings which had not been put before the Court then surfaced.

The discovery of the record of proceedings must have
suggested to the Applicant that he ought to amend his notice of
motion (which
amended notice he duly filed) and pursue the only
ground or grounds related to the additional prayer in that amended
notice of motion.
It was said the amendment was made in terms of Rule
50(4). The notice of motion was accompanied by the supplementary
affidavit of
Masupha Mohalenyana Seeiso Maama (the Applicant). It was
couched in the following terms:

" 1. Declaring the disciplinary committee that
heard the Applicant's disciplinary case culminating in his suspension
as wanting
in jurisdiction by reason on the ground that if not
independent and imported as contemplated by section 12(8) of the
Constitution
of Lesotho 1993.

4

2. Granting Applicant such further and/or alternative
relief as this

Honourable Court may deem fit."

The
question being asked was whether that Disciplinary Committee which
tried the Applicant (validly appointed by the Minister in terms
of
section 15(2) of Chieftainship Act 1968) constituted as it was by
people including public officers (civil servants) the committee
lived
up to the import of section 12(8) of the Constitution. It was argued
that if the appointees to the Committee (or some of them)
were civil
servants appointed by the Minister there cannot be any: "Strong
contention in favour of civil rights and obligation
of a person being
determined by a committee of public officers." The section 12(8)
of the Constitution reads:

"(8) Any Court or other adjudicating authority
prescribed by law for the determination of the existence or extent of
any civil
rights or obligations shall be established by law and shall
be independent and impartial, for such determinations are instituted
by any person before such a Court or adjudicating authority, the case
shall be given a fair hearing within reasonable time."
(My
underlining)

Mr Mosito contended, notwithstanding that he conceded
that the Committee was constituted in terms of the law, that the
appointment
(even though allowed by that law in question) this cannot
be enforced because it is not supported by the Constitution. If it
was
the express intention of the legislature that the committee shall
be independent and impartial there could be no valid argument that
a
Committee so constituted was independent. Reference was made in that
regard to the Zimbabwean Supreme Court case of SEKAI HOLLAND
AND
OTHERS v THE MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE
NO. SC 15/97. The case makes interesting reading and was only
relevant in advising of the correct approach by the Counsel in
matters involving "the existence

5

or extent of their civil rights and obligations". I
agreed that the matter of the

discipline
or misconduct of the Applicant involved his civil rights and
obligations.

See pages 4 and 5 of the judgment. And the learned
author C E Devenish in

South African Law Journal 1981 would add:

"Where freedoms and rights of individual are
involved, the Courts in accordance with the ethos of our Roman Dutch
Law have emphasized
their peremptory nature."

The second ground was that to the disciplinary hearing
against the Applicant was heard in the office of Mr. Nthako a public
servant
and an officer in the Ministry of Home Affairs. That this was
so was borne out by the record of proceedings which indicated further
that the decision was made in that office. The question was therefore
whether, as Mr. Mapetla submitted, even if the office was not
a
public place strictly speaking it was a place where the public
normally had access to. The relevant provision in of the Constitution
was section 12(a) which read as follows:

(a) Except with the agreement of parties thereto, all
proceedings of every Court and proceedings from the determination of
the existence
of any civil right or obligation below any other
adjudicating authority. including the announcement of the decision of
the Court
or other authority, shall be held in public." (My
underlining)

I respectfully agreed in that if it was unarguable the
dispute about the chieftainship rights and their abrogation which was
the subject
of the present dispute in its generally was a matter of
civil rights and obligation of the Applicant. And that this was
within the
contemplation of the section 12(8) of the Constitution.
Those rights should in general be more strictly protected and where
there
is a doubt be interpreted in favour of liberty of the
individual (in fauorum libertatis). I would add

6

the following that:

"It has been clearly established that in our law
where a statute authorizes judicial or quasi-judicial powers which
may influence
individual or property rights there is a preemption
that in the absence of an express provision or a clear intention to
the contrary,
the powers so given are to be exercised in accordance
with the principles of natural justice. Baxter explains the position
by stating
that "like all presumptions" of statutory
intention, the presumption that natural justice is applicable has
independent
weight deriving from the common law in which the
principles have first developed."

This is to say that in all challenges as Mr. Mosito
argued there has to be peremptory compliance with what is prescribed
in the Constitution
lest the result in an illegality where there is
that non compliance which would bring about an illegality. The
question whether there
has been prejudice or not does not arise. The
decision has to be struck down as a nullity as Counsel submitted
further.

As Applicant argued further the question of the fact
that the hearing was not held in public is indicative of a fair
hearing having
been denied. I would instantly comment about the
factual situation Mr. Mapetla agreed that the hearing and the
decision was announced
from one of the offices of the Ministry of
Home Affairs. But he argues that it was in public because the public
generally had access
to that office (See S v Sibanda 1972(4) 88 (RAD)
(place to which public have access). Supposing the question was what
kind of access
the public had to that office the answer would be in
the purposes for which the office catered for the public. But it
would not certainly
be that the office was intended for the purpose
of hearings such as that of the First Respondent's proceedings.
Perhaps the office
can be adapted or arrangements be made for
hearings such as that against Applicant. Still the question would
still be what arrangements
were those and how was the general

7

public made aware of the particular proceedings. I
thought Mr. Mapetla was not able to convince the Court that
arrangements had been
made for the general public to be aware that
they had access to the office for that purpose. May be office doors
were open into the
office, and may be there was an official
announcement to that effect. I doubted if there were such
arrangement. It was only fair
to decide in favour of the Applicant on
this fact and as to the true factual situation. I would say right
away that I would find
that on the facts it cannot be that the
hearing was in public.

That would not be the end of the story. Applicant's
Counsel argued that because the Disciplinary Committee dealt with the
determination
of the existence of any civil right or obligation by
any other adjudicating authority the Committee was in the same
standing as a
court of law and that in the circumstance of the
proceedings having been heard in an office the hearing amounted to
one being held
in camera. That the hearing could not have been a fair
one.

Fairness being the cornerstone of any judicial hearing
or administrative action the question remained to be whether the
hearing in
the office of Mr. Nthako was necessarily procedurally
unfair because it was not held in a room or space that was at the
same time
accessible to the public in the way proceedings in Courts
of law are held for those proceedings to be said to have been held in
public.
In South African Constitution the provision nearing our own
section 12(a) is to be found in section 34 which says:

"Everyone has the right to have a dispute that can
be resolved by application of law decided in a fair public hearing
before
a Court or where appropriate another independent and impartial
tribunal or forum." (My underlining) I have particularly
underscored
"a fair public hearing" for the purpose of my

13

committee was impartial, nor was it being said that
Applicant was prejudiced. All that was said was that objectively the
committee
could not have been independent. One would have found
impossible to pronounce on the issue of independence unless the
content of
its absence was disclosed in a more issuable rather than
in the abstract approach that could only be termed far-fetched and
strained,
as Applicant's argument exhibited itself to be in this
case. With respect this was untenable and on that ground the
application ought
to be dismissed.

The application was dismissed with costs.

T. Monapathi
Judge

22^nd August, 2001

8

decision. Again a similar provision in the Constitution
of South Africa is to be found in section 35(3) (c) which says:

"Everyone who is arrested for allegedly committing
an offence has the right:

(1)

(2)

(3)

(a)

(b) ..

(c) To a public trial before an ordinary Court.

(d)

(e)

Hlophe J and Brand J in dealing with an almost similar
objection or point raised by

applicant in Hamata v Peninsular Tecknikon Internal
Disciplinary Committee (2000) 3 All SA 415 said at 433

59. 
    However, be that as it may. For the contention that
    administrative
    proceedings in camera are procedurally unfair, Mr
    Farlam proposed
    only one legal basis. That legal bass being a
    reference, by way of
    analogy, to the provisions in the
    Constitution with regard to court
    proceedings. More specifically,
    Mr. Farlam pointed out that in terms
    of section 34 of the
    Constitution, court hearings are to be held in
    public. Similarly
    that, in terms of section 35(3)(c), accused persons
    have the
    right to a public trial.

    
    

60. 
    It has already been pointed out earlier in this
    judgment that it is not
    permissible simply to transpose the
    rights created by section 35(3) on
    administrative hearings. The
    same goes for the provisions of section
    34. An administrative
    tribunal is not a court of law. It therefore
    cannot be required
    of an administrative tribunal to follow the
    procedure insisted
    upon in courts of law. Different considerations may

    
    

9

apply". (My underlining)

The learned judges had previously, with regard to other
objections, commented that they were "high sounding"
meaning that
they were "pretentious and bombastic". See
Concise Oxford Dictionary. I would have added they were far-fetched.
For the
same reason and that no prejudice was demonstrated I would
dismiss the objection.

I would comment further that things to consider may be
that such investigations or inquiry is essentially that they are not
strictly
public and convenience dictates that they may not be dealt
with like open court hearings. That does not make them necessarily
unlawful,
unreasonable and procedurally unfair just because they were
held in an office space.

The last point taken by Applicant would indeed attract
quite a brief comment. When an issue of disciplinary nature or
misconduct "affecting
chiefs" arises the Minister for
Chieftainship Affairs will appoint a committee in terms of section 15
of Chieftainship Act 1968.
The Minister appoints a chairman and such
additional members as the minister "may think fit" to
appoint. In the first place
there is no mention for appointing "fit
and proper people" (which is not an excuse for appointing wrong
people) it is nevertheless
expected that people of competence,
experience and indeed fit and proper people will be appointed by the
Minister. Secondly, the
Minister has an unfettered power to appoint
who "he may think fit". This means that he has a discretion
as to who to appoint.
They should only be capable of doing the
functions envisaged in the mentioned section and will not be confined
to any class of persons.
As to another interpretation of "as he
thinks fit" see Arkell v Carter N.O and Others 1971(3) SA 243
(SR).

It was conceded by the Applicant that the Committee was
rightly constituted

10

in terms of the law. However it was contended that the
law in question (section 15) cannot be enforced as against the
Constitution.
In addition that the committee members should perform
their functions "under this Constitution or any other law, be
independent
and far from interference and subject only to this
Constitution and any other law." See section 118(2) of the
Constitution.
See a similar contention in the comment about "an
independent Court martial" in 2^nd Lieutenant Rantšo
Josias Sekoati and 4 Ors v President of the Court Martial (Lt Col.
Lekanyane and 2Others of A (CIV) No 18/1999 (full Court) where
it was
said that:

"If it was the express intention of the legislative
that the committee shall be independent and impartial there can be no
valid
argument that a committee so constituted is independent the
main reason as already stated was that as appointees of the minister
the committee would not be reason of such appointment be objectively
independent much as the inquiry was concerned with civil rights
and
obligations of the Applicant then could not be any strong contention
in favour of the rights. (My emphasis)

In the present case it was not even necessary to show a
likelihood of bias which would be the case where lack of impartiality
was
charged against the committee. There was no such a charge. In
that other case (where lack of partiality and bias was suspected) one
would speak of subjective independence. That must have been the
complaint.

From whichever angle one chose to look at the problem,
that even if it were to be thought as a requiring objective as
against subjective
independence, the reality is that tribunals such
as the one subject of this case is not a court of law strictly

11

speaking. But likewise what is expected is the
tribunal's independence which in substance is like:

"The generally accepted core of the principle of
judicial independence of individual judges to hear and describe cases
that come
before them without interference from any outsider. See
Queen In Right

of Canada v Beaugegard (1986) 30 DLR (4^th)
481 SCC at 491. See also Law Society of Lesotho v Prime Minister and
Another (1986) LAC (Const.) 481 (CA) at 493-4."

See 2^nd Lieutenant Rantšo
Josias Sekoati's case at page 18. What is important for our purpose
is that:

" The conditions of independence are however
susceptible to flexible application in order to suit the needs of
different tribunals.
The question in every case is whether an
informed and reasonable person would perceive the tribunal as
independent. See Genereux
supra. In Genereux the Supreme Court of
Canada was called upon to construe the impact of section 11(d) which
of the Charter of Rights
on the constitutionality of the National
Defence Force Act section 11 (d) guarantees a person charged with an
offence the right:

"To be presumed guilty according to law in a fair
and public hearing by an independent and impartial tribunal."

Second Lieutenant Rantšo Josias
Sekoati and 48 Others case at page

48.

I
would pertinently remark that nothing has been specially alleged to
have

12

impeached the independence of the committee except that
it was said to be under "influence and shadow of the Minister
who appointed
the tribunal". One of the things being said was
that much as the members constituting the committee were as civil
servants appointed
by the Minister" no fairness would be
expected. In my view nothing of significance could be pointed out as
derogating or militating
against a perception that the tribunal was
independent. The attack was surely far-fetched and farcical and out
to be dismissed as
such.

I would refuse to equate the committee with the
qualities of judges or magistrates who are appointed upon stringent
terms and conditions
as the Constitution provides. That kind of
purity that is expected from the independence and impartially of
civilian courts that
the Court of Appeal commented about a court
martial has most realistically been expressed in 2^nd
Lieutenants Rantšo Josias Sekoati and 48 Others case at page 20
where the Court said:

"In our judgment a proper contention of section
118(2) read in the context of the Constitution as a whole and in
particular having
regard to section 24(3) a Court Martial in order to
comply with section 118, cannot be completely lacking in
independence, nor can
it be completely subject to outside
interference. On the other hand it is not required to have the same
degree of independence nor
to enjoy the same degree of freedom from
interference as is required of an ordinary civilian court."

I repeat that this was a most realistic way of putting
the situation in the thoroughness that was not easy to surpass.

Most unfortunately in the present case there was no
charge that the

13

committee was impartial, nor was it being said that
Applicant was prejudiced. All that was said was that objectively the
committee
could not have been independent. One would have found
impossible to pronounce on the issue of independence unless the
content of
its absence was disclosed in a more issuable rather than
in the abstract approach that could only be termed far-fetched and
strained,
as Applicant's argument exhibited itself to be in this
case. With respect this was untenable and on that ground the
application ought
to be dismissed.

The application was dismissed with costs.

T. Monapathi
Judge

22^nd August, 2001