Embargo:
9.30 Wednesday 20 April 2005

STATEMENT
BY THE PRESIDENT OF THE

COURT OF
APPEAL AT THE CONCLUSION OF THE APRIL 2005 SESSION,

The Court
of Appeal of Lesotho today concludes its session. Over two weeks the
Court heard argument, deliberated and has written
judgments in three
criminal and 15 civil appeals.

One of
the civil appeals has been postponed for hearing at the next session
(October 2005). The appeal concerns a claim by a lay
litigant that
the Court of Appeal has jurisdiction under the Constitution to hear
appeals from the Labour Appeal Court. The Law
Society of Lesotho has
been asked and has agreed to assist the Court by providing the
services of an AMICUS CURIAE ("friend
of the court"), to
advance argument on this important issue independently of the
litigants in the case.

Despite
its heavy workload, the Court also agreed to hear two appeals (with
the consent of both parties) on an urgent basis. This
related to:

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(i) an order made on 1 April 2005 by a High Court judge declaring
invalid an important regulation regarding the licensing of buses
in
Lesotho;

(ii) an appeal by Bishop Khoarai of the Diocese of Mohale's Hoek and
the Catholic church. This case involves the termination of
the
services of a Priest and has been the subject of various judicial
pronouncements since 1999. The Court felt that it was in
the public
interest that this matter should be disposed of urgently.

Copies of
all the judgments delivered by the Court are available through the
office of the Registrar upon request (and payment of
copying
charges). What follows is a brief outline to inform the public and
interested parties as regards the justice system of
Lesotho of some
of the Court's rulings this session:

1. Thabo
   Monyau v Rex

   
   

The Court
confirmed the conviction for sedition of a priest related to events
leading up to the 1998 mutiny of certain dissident
LDF

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elements.
It set aside however his conviction and sentence on a further charge
of conspiracy to murder members of the Cabinet because
in law there
was a duplication of the facts relating to this charge with those
founding the charge of sedition.

In
confirming the conviction of sedition, the Court dealt with the
elements of the offence. It raised for future consideration the
need
for these to be measured against the Constitution. The Court also
emphasized the seriousness of the offence. But it held that
the High
Court had misdirected itself and had erred in imposing a sentence of
15 years' imprisonment for sedition. This sentence
was also even more
severe than that imposed on the ringleaders of the army mutiny.
Recognizing the need for an appropriately severe
sentence for an
offence which had sought to undermine constitutional democracy, it
imposed instead a sentence of 10 years' imprisonment.

(2)
Attorney-General v Moletsane

The
Government appealed against a High Court interdict preventing the
eviction of residents of an area 11km from Maseru and the
demolition
of their homes. The area had been declared a Selected

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Development
Area in terms of the Land Act, 1979. But the respondents claimed that
they could not be evicted without compensation,
because they were
bona fide occupiers of the land who had effected useful improvements
(on the evidence substantial homes totaling
some M3 million in
value).

Dismissing
the Government's appeal, the Court finds the right of the respondents
to compensation before eviction to be established
on the facts, and
on the application of the right to property entrenched in s.17 of the
Constitution. S.17 includes in its protection
any right or interest
in land, and a taking by Government such as that applicable here.

(3) Road
Transport Board & others v Northern Venture Association and
another

The Court
agreed to hear this appeal on an urgent basis, because the order
appealed against could well have a profound impact on
the general
public and the safety of those who use privately operated vehicles.

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The High
Court declared unconstitutional and null and void a regulation for
granting permits for buses (as classified) for public
transport. The
respondent (as applicant in the High Court) had applied for such an
order on the basis that the right to protection
against
discrimination (in terms of s.18 of the Constitution) applied to the
disqualification of one make of motor vehicle, the
Venture.

The
appeal against the High Court order was upheld for two reasons.
First, the facts indicate that other makes of motor vehicle
do not
comply with the regulation in question. (If the appellants did not
intend this, the regulation will need urgent amendment).
Second, and
in any event, the protection accorded by s.18 of the Constitution
relates to disabilities imposed by status. Governments
have to
regulate, and they usually have to differentiate when regulating. No
disability attributable to status relating to property
was imposed by
the road traffic regulation in this case.

(4)
Khathang Tema Baitsokoli & another v Maseru City Council &
others The appellants in this matter are a registered society
of
street traders, and one individual member. They had been moved by
Maseru City

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Council
from trading along Kingsway to a new market, some 200m away. A full
Bench of the High Court had rejected their claim that
the right to
life protected by s.5 of the Constitution extends to protecting a
right to livelihood.

In the
course of its judgment, the Court points to the fact that the right
to a livelihood is addressed (with other socio-economic
rights like
education and health) separately in the Constitution, not as a
fundamental right protected under chapter II but as
a Principle of
State Policy protected under chapter III. For this and related
reasons, the Court rejected the argument that the
right to life does
not include the right to a livelihood. It also distinguished, and
declined to follow the decisions of the Supreme
Court of India and
the Supreme Court of Bangladesh.

Because
the appeal however raised a substantial constitutional issue of
public concern, the Court made no adverse order of costs
against
appellants.

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5. The
   appeal by Bishop Khoarai and the Catholic Church.

   
   

In this
matter the Bishop and the Catholic Church in Lesotho (referred to as
The Church) have been embroiled in an ongoing and unseemly
dispute
with one of its clergy who is the respondent in this appeal. The
merits of the dispute, i.e. as to whether the respondent
(the Priest)
has been unfairly dismissed from the Priesthood (unfrocked), have not
yet been adjudicated upon. This is largely attributable
to the fact
that the Church has from time to time raised a range of formal
procedural defences. One of these, viz that the Church
should have
been cited as the Catholic Church not the_Roman Catholic Church was
rejected by the High Court as long ago as November
1999. Before us
the contention was that it had been incorrectly cited as the Catholic
Church in Lesotho, that the Bishop should
not have been joined in the
proceedings, but that the Congregation for the Evangelization of
People ("the Congregation")
located in the Vatican should
have been. The Court upheld the decision of the High Court that both
the Bishop and The Church have
locus standi in judicio (the right to
sue and be sued) and that it was not necessary to join the
"Congregation" a division
of the Church domiciled in Rome.

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5. The
   Education Authorities v St. Patrick's High School and another.

   
   

This
appeal could well be identified as "The case of the teacher in
Limbo". Because this High School teacher was literally
in limbo
from August 2001 to today's date i.e. the 20th of April 2005. The
facts are that there had been a protest at the school
and a "strike"
by the students. They returned, but she did not. Eventually
disciplinary proceedings were instituted against
her. She invoked the
assistance of the High Court. The dispute was referred to an
adjudication process to which the Education Authorities
appointed an
adjudicator from their ranks. A settlement was achieved and it was
agreed that the teacher was to be transferred to
another school and a
substitute teacher would be appointed to St. Patrick's High School.
For many months the Education Authorities,
despite numerous requests
did nothing. Eventually after many months when they did reply they
said the application for transfer
was submitted on the wrong form!

This was
both spurious and wrong. It was in fact the right form. Eventually
the school and the teacher had to sue the authorities
to get them to
act. Before us they raised for the first time the defence

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that they
were not obliged to "implement the settlement because they were
not a party to it!" This defence was as spurious
and as devoid
of merit as the first They had been a party to the disciplinary and
court actions, their adjudicator had achieved
the settlement and they
had at no time repudiated it. We describe their conduct as deplorable
and their appeal against the High
Court judgment as irregular and
without merit.

(7)
Chabeli v Commander of Police

This
appeal arises out of the police mutiny that took place in 1995 during
which the wife and later the daughter of the deceased
sued the State
for damages arising from the killing of their father the late Major
Chabeli by the dissident police officers. The
judgment of this Court
was handed in by consent as the only evidence. The High Court found
that the dissident police who shot the
deceased was in fact acting
outside the scope of their employment and that the unlawful acts they
committed were an abuse of their
powers and contrary to their duties
to maintain law and order. There was no way the State could be held
liable for these unlawful
acts, they were not acting as its employees
when they did so. There appears to be a

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need for
the State to provide compensation for victims of crimes of violence
to alleviate the suffering of the often forgotten victims
of offences
involving violence.

(8)
Minister of Home Affairs & others v Mofolo

Certain
important matters relating to the validity and interpretation of
retirement ages for police officers were dealt with in
this case. Two
of the conclusions reached were:

1. The
Minister of Home Affairs is authorized by the Police Service Act 1998
to make regulations for conditions of service of officers.
This power
includes the right to make regulations dealing with the retirement of
members of the Police Service (overruling the
decision of the High
Court).

2.
Regulation 11(1) which fixes the retirement ages of police officers
must be interpreted so as not to remove existing rights.
The
respondent, a subordinate officer, had the right to retire at the age
of 55 in terms of the regulation provided for compulsory
retirement
of subordinate officers at the age of 50. The Court held that the
regulation did not apply to the respondent as it could
not

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reasonably
be interpreted to remove her right and of others in the same position
to retire at a later date.

(9)
Monaleli & Another v Rex

The two
appellants were convicted of murder with extenuating circumstances
and a robbery committed in the course of the murder.
They were each
sentenced to 40 years imprisonment on each count. They appealed both
against their convictions and sentences. They
were rightly convicted
and their appeal is dismissed.

The
murder was a brutal crime. The first time they shot the deceased in
her shop, they fired two shots into her body. Shortly thereafter
and
after having fired some shots outside, they re-entered the shop and
fired a further 6 shots into her body.

We have
held that sentences in excess of 25 years should only be imposed in
exceptional circumstances. The youth and immaturity
of the two
offenders (18 and 19 years) as well as the fact that they are first
offenders militated against the imposition of sentences
of 40

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years on
each count. We reduced the sentences to 25 years for murder and 7
years for robbery - the sentences to run concurrently.

10. Mahabanka
    Mohale v 'Makholu Leuta Mahao

    
    

This case
concerned a challenge to the Paramount Chiefs demarcation of a
boundary made 64 years ago on 27 May 1941. The demarcation
was
between the parties' predecessors in title at a place called Thabana
Morena Mountain in Mafeteng district. In terms of the
demarcation the
disputed area north of the mountain comprising the villages Meqecheng
to Lebung was allocated to the Respondent's
predecessor in title,
namely Tumo Qamako.

The
Appellant's claim was dismissed by all the lower courts namely the
Ramokoatsi Central Court, the Judicial Commissioner's Court
and the
High Court respectively.

The
appeal against the High Court decision was dismissed on the ground
that the Paramount Chiefs decision was valid and had never
been
changed.

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The Court
was of the opinion that certainty and finality required that this
matter be now put to rest It is more than 6 decades
since the
boundary was settled.

The Court
of Appeal of Lesotho has no current backlog of criminal or civil
cases. Save in cases where the records cannot be transcribed.
By
seeking the co-operation of legal practitioners in ensuring timeous
filing of records (this is critically important), heads
of argument,
with copies of statutory provisions attached, the Court endeavours
not only to hear all appeals set down for each
session, but to
deliberate, research its judgments and write these before the end of
each session.

The
support of the legal profession in ensuring that compliance with the
rules and circulars, as well as that of Government in seeing
that the
court is supplied with the necessary statutes and law reports, is
essential for the Court to be able to make a meaningful
contribution
to the delivery of quality justice.

During
the course of this session we have had meetings with the Principal
Secretary of the Department of Justice and Human Rights

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as well
as with the Deputy Attorney-General and the Law Society. We have in
these meetings debated steps that can be taken to address
some of the
persistent problem areas in the administration of justice and the
practice of the law. We have been encouraged by the
commitment of
those with whom we inter-acted to act decisively to eliminate the
backlogs and address the delays in the criminal
and civil justice
process.

However
these parties need to work as a team. We would appeal to them to join
forces and to work together to improve the quality
of service we as
colleagues and professionals are duty bound to give the people of
this Kingdom.

JH STEYN.

PRESIDENT
OF THE COURT OF APPEAL OF LESOTHO

MASERU 20
April 2005

Media
Inquiries:______j.h.steyn@mweb.co.za