CRI/T/68/2000

IN THE HIGH COURT OF LESOTHO
In the matter
between:

REX

and

LEFU NTOBO Accused 1

JIAN
ZIN Accused 3

JUDGMENT

Delivered by the Honourable Mr. Justice M.M. Ramodibedi
on 26^th day of September 2001

This is an application for rescission of the order of
this Court made on the 7^th day of September 2001 in which
it ordered that the case must start dc novo before another judge. At
the outset I should point out
that my recusal in the event of the
case starting de novo was predicated upon the fact that it would be
unfair on the parties for
me to sit in the matter afresh when I had
already formed an opinion one way or the other at that stage.

2
The reason that necessitated the above mentioned
order is that the

sole assessor in the case sadly passed away in the first
week of September 2001 (may his soul rest in peace) at the stage when
all
that remained in the case was addresses by counsel on both sides.
The court felt then that it was no longer properly constituted
to
complete the case. It must be noted, however, that this was an
impromptu decision made in the absence of counsel. As a general
practice an order for recusal should only be made after all the
parties involved have been given an opportunity to express their
views on the matter.

I should add for completeness at this stage that the
application for rescission is fully supported by the Crown. Counsel
on both sides
have submitted useful heads of argument for which the
court is highly appreciative.

It requires to be mentioned further that the application
is made in terms of Rule 45 (1) (a) and (3) of the High Court Rules
1980
which provides as follows:

3

"45. (1) The court may, in addition to any other
powers it may have mero motu or upon the application of any party
affected,
rescind or vary -

(a) an order or judgment erroneously sought or
erroneously granted in the absence of any party affected thereby;

(3) The court shall not make any order rescinding or
varying any order or judgment unless satisfied that all parties whose
interests
may be affected have notice of the order proposed."

When this matter came before me for hearing yesterday
the 25^th September 2001 I inquired from counsel on both
sides whether the court was not functus officio in the matter but
they were unanimous
that it was not, in the circumstances of the
case, more especially as the order was made in their absence and the
recusal itself
was dependent on the case starting dc nova. I agree
with this submission. Afterall the order in question cannot be termed
a pronouncement
of a judgment which is sententia stricti juris. More
importantly I consider that Rule 45 of the High Court Rules
adequately covers
the point. That this Rule applies to

4
civil cases as well as Criminal cases is borne out
by the fact that no

distinction is made between the two types of cases in
the text of the Rule itself. Moreover it is also borne out by the
case of Molapo
v DPP and Another LLR & LB 1999 - 2000 9 in which
the Court of Appeal per Steyn P not only recognised the applicability
of the
Rule but also went further to emphasise the fact that
subsection (4) of the rule retains the common law right of the court
to rescind
its own judgment. That subsection reads as follows:-

"Nothing in this Rule shall affect the rights of
the Court to rescind any judgment on any ground on which a judgment
may be rescinded
at common law."

I deal then with the question of an assessor in this
country. I should state at the outset that there is, as far as I am
aware, no
case directly in point in this country namely where the
sole assessor as in the instant case dies during the course of the
trial.
For reasons which will become clear in the course of this
judgment the matter is not covered by legislation and this, I venture
to
say, is by design.

5
Section 9 of the High Court Act 1978 provides as
follows:-

"9. (1) The High Court may call to its assistance
at any civil or criminal trial or appeal not more than four
assessors, whose
duty it shall be to give either in open court or
otherwise, such assistance and advice as the judge may require, but
the decision
shall be vested exclusively in the judge.

(2) The agreement or disagreement of the assessor or
assessors with the decision of the judge shall be noted on the
record."

It is useful to bear in mind the interpretation of an
identical section by the Court of Appeal of Lesotho per Schreiner JA
(as he
then was) namely Section 9 Act No.4 of 1967 in Thabo Hlapane v
Rex C of A (CRI)No. 35 of 1971 (unreported). The learned judge of
appeal said the following at page 3 thereof:-

"In this connection one has always to remind
oneself of the fact that the assessors do not form part of the court
in the making
of decisions. When the judge calls in assessors (under
Section 9 of Act 4 of 1967) their role, when he asks them for their
advice,
remains that of helpers and advisers. Their role is

6

not unimportant, but the function of deciding is vested
exclusively in the judge, although he is directed by the section to
note their
agreement or disagreement with the decision on the
record."

In Lethula Leluma and Another v Rex LLR & LB
1997-1998 468 the Court of Appeal once more expressed itself (per
Shearer JA) on
the point as follows at p473:-

"The absence, temporary or otherwise of one
assessor may not, by itself, in Lesotho be fatal to the proceedings;
particularly
where the Judge seeks advice in regard to a limited
issue, where an assessor might well be excused once that issue has
been dealt
with in the evidence, and advice given. But where
assessors are summoned for general advice, wise advice may well
persuade the trial
Judge that his prima facie view on any one of a
number of matters is not incontrovertible. And under those
circumstances if there
is a general custom, as we were informed from
the Bar, that assessors drift in and out or are excused during the
course of the proceedings,
such custom prima facie conflicts with the
High Court Act and deprives the accused of a right accorded him by
that Act and the decision
of the Judge to summon assessors; which
surely would not be motivated by a desire merely to afford
pocket-money for a friend or two."

7

In contrast the position of assessors in South Africa is
totally different from that which obtains in Lesotho. In terms of the
proviso
to Section 145 of the Criminal Procedure and Evidence Act
1977 of that country assessors are actually members of the court and
can
overrule the presiding judge. See S v Malindi and Others 1990 (1)
SA 962 (A) That section requires quotation in full. It reads:-

"145(1) (a) Except as provided in
section 148, an

accused arraigned before a superior court shall be tried
by a judge of that court sitting with or without assessors in
accordance
with the provisions set out hereunder.

(b) An assessor for the purposes of this section means a
person who, in the opinion of the judge who presides at a trial, has
experience
in the administration of justice or skill in any matter
which may be considered at the trial.

(2) Where an attorney-general arraigns an accused
before a superior court -

8

1. 
   for trial and the accused pleads not
   guilty; or

   
   

2. 
   for sentence, or for trial and the accused
   pleads
   guilty, and a plea of not guilty is
   entered at the direction of
   the presiding
   judge,

   
   

the presiding judge may summon not more than two
assessors to assist him at the trial: Provided that where the offence
in respect
of which the accused is on trial is an offence for which
the sentence of death is a competent sentence, the presiding judge
shall,
if he is of the opinion that, in the event of a conviction and
having regard to the circumstances of the case, the sentence of death
may be imposed, summon two assessors to his assistance."
(emphasis added).

The diametrical difference between our legislation and
that of South Africa renders it inadvisable in my judgment therefore
to follow
or have regard to cases emanating from that jurisdiction
save to note that they emphasise the importance of the seriousness of
a
case in which it is sought to engage an assessor as in casu. One
must of course bear in mind that legislation relating to assessors
in
South Africa followed a history of

9
jury trials in that country while in Lesotho we
have never had such a

system. In this country the presiding judge has always
been the trier of both fact and law. Assessors are accordingly not
members
of the Court here. This in my view explains why the
Legislature in its own wisdom deemed it unnecessary to provide for a
situation
where an assessor dies or becomes incapacitated during the
course of a trial. Having said that, however I must confess to having
resisted the temptation of being influenced by such cases as S v
Malinga 1987 (3) SA 490 (A) at 498 D-J per Kumleben AJA (as he then
was) and S v Gqeba and Others 1989 (3) SA 712 (A) in which Grosskopf
AJA (as he then was) agreed with the majority decision (M.T.
Steyn JA
dissenting) that where one of the two assessors had been discharged
for ''compassionate" reasons the court was no longer
properly
constituted. Significantly both learned judges are now judges of our
Court of Appeal. It must be noted that in both cases
the Appellate
Division emphasised the seriousness of the case hence the
desirability of employing assessors in compliance with the
requirement of the proviso which in turn reflected the intention of
the Legislature. It requires to be emphasised that the court
was
there dealing with a different statute from ours.

10
Indeed it is true to say that, unlike in Lesotho,
the position where

an assessor dies during the course of a trial in South
Africa is clearly regulated by statute in terms of Section 147 of the
Criminal
Procedure and Evidence Act 1977 which reads as follows:-

"(1) If an assessor dies or, in the opinion of the
presiding judge, becomes unable to act as assessor at any time during
a trial,
the presiding judge may direct -

1. 
   that the trial proceed before the remaining
   member
   or members of the court; or

   
   

2. 
   that the trial start de novo, and for that
   purpose
   summon an assessor in the place
   of the assessor who has died
   or has
   become unable to act as assessor."

   
   

In its wisdom the Legislature in Lesotho has left the
position of assessors in any trial including those who die before the
matter
is finalised in the discretion of the presiding judge. That
must be so in terms of Section 9 of the High Court Act 1978 and again
it must be stressed that this is regardless of whether or not the
case is a serious one in which the death penalty might be imposed.
More importantly the Legislature in its wisdom has in this country
decreed that the presiding judge alone shall be

11
vested exclusively with the right to make the
decision in the case whether or not there are assessors.

It is no doubt for the aforegoing reasons that the Court
of Appeal in Lethula Leluma v Rex (supra) was constrained to express
itself
as aforesaid namely that "the absence, temporary or
otherwise of one assessor may not, by itself, in Lesotho be fatal to
the
proceedings." It should be noted for that matter that even
in cases where the presiding judge deems it necessary it is
permissible
under sub-section 9 (2) of the High Court Act 1978 to
make use of only one assessor. As will be recalled that subsection
provides
that "the agreement or disagreement of the assessor or
assessors with the decision of the judge shall be noted on the
record."
This is consistent with subsection 9(1) which provides
that the presiding judge may call not more than four assessors. Read
as a
whole this section simply means that the presiding judge is
empowered and does have a judicial discretion to sit either alone, or
with not more than four assessors or still with just one assessor as
he deems fit. Clearly therefore each case must depend on its
own
circumstances.

12
In the exercise of my judicial discretion in
terms of Section 9 of the

High Court Act 1978 and to the extent that the instant
case is a serious one in which the death sentence might be imposed it
is necessary
to record that I have received substantial assistance
from the assessor in question. This was made possible by the fact
that his
sad demise only occurred after all the evidence had been led
and, I might add, after heads of argument by Mr. Nel for the Crown
and
Mr. Sello for Al had already been filed. 1 already have the
benefit of the assessor's views regarding the guilt or innocence of
the
accused. He fully agreed with the court. I consider therefore
that the concerns raised in such cases as S v Malinga (supra) and S
v
Gqeba (supra) either do not arise or have been fully allayed.

Furthermore it is common cause between the parties in
this matter that the prejudice in the event of the trial starting de
novo will
be immense not only for the Crown but also for the accused
who stand to suffer further incarceration pending the flnalisation of
the trial. They have been in custody since 1999 which already
translates to a shocking period of more than (2) years. There is
also
a real possibility, as I am informed, that

13
witnesses may have become unavailable and that it
will generally be

difficult to marshal! all the evidence again. I have
taken all these factors into account in deciding the matter as well
as the substantial
expense in running a trial of this nature. The
inconvenience of all the parties including the court has merited my
attention in the
matter.

On mature reflection and all things being considered I
have come to the conclusion that there is right in granting the
application.

Accordingly the judgment of this Court ordering a trial
de nova and recusing itself from the matter is hereby rescinded and
set aside.

M.M. Ramodibedi

JUDGE
26^th September 2001

For the Crown : Adv. J. Nel

For Accused No.1 : Mr. K. Sello

For Accused No.2 : Mr. B. Sooknanan