CRI/T/174/2004
IN THE HIGH COURT OF LESOTHO
In the matter of:
JURGEN FATH 1st APPLICANT
IMPREGILO SPA 2nd APPLICANT
and
THE MINISTER OF JUSTICE 1st RESPONDENT
OF THE KINGDOM OF LESOTHO
THE CROWN 2nd RESPONDENT
HEREIN REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS
IN Re:-
THE CROWN
Versus
IMPREGILO SPA (Registration Number 104217)
TRIBUNAL OF MILLAN)
JUDGMENT
Delivered by the Honourable Mr Justice T. Nomngcongo on 17 October. 2005
The applicants have approached the court on a notice of motion seeking the
following orders:
"A. Declaring that the warrant of Apprehension issued in terms of Part VB of the Criminal Procedure and Evidence Act N0.9 of 1981 (as amended) and pursuant to which Warrant of Apprehension the First Applicant was arrested on 23 July 2004 is null and void and of no force and effect.
Declaring that the First Applicant was wrongfully and unlawfully arrested on 23 July 2004 in terms of the provisions of Part V of the said Act;
Declaring that the First Applicant has not been cited as a representative of the second Applicant pursuant to section 338 (2) of the said Act for the purposes of the criminal proceedings which have purportedly been instituted against second Applicant in the High Court of Lesotho under Case No. CRI/T/174/2004 the hearing of which has been set down to commence on 18 April 2005;
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Declaring that the second Respondent has no competence in law to prosecute further the proceedings against the second Respondent under Case No. CRI/T/174/2004;
Declaring that the High Court of Lesotho has no jurisdiction to try the second Applicant under Case No. CRI/T/174/2004 in terms of the indictment which has been annexed to the founding affidavit marked "TMM2".
Directing first and second Respondents to pay costs of the application jointly and severally the one paying, the other to be absolved,
alternatively, in such proportion as Honourable Court deems meet.
The first and second Respondents oppose the grant of this application and opposing affidavits have been filed.
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The proceedings arise from certain criminal charges preferred by the Director of Public Prosecutions (second Respondent herein) against Impregilo Spa, a company incorporated under the laws of Italy (second applicant) herein. The latter being a corporate body it had to be represented in court by its director or its servant in terms of section 338(2) of the Criminal Procedure and Evidence Act No.9 of 1981. To that end Mr Jurgen Fath (first Applicant) was arrested on the 25th July 2004 and brought before the subordinate court for the district of Maseru.
Mr Fath is an employee of a company known as Hochtief Akteingesellschaft (hereinafter referred to as Hochtief). Hochtief is a member of a consortium known as Mohale Matsoku Constructors which was engaged to construct the Mohale Tunnels, the connecting weir and the Mohale dam in the mountains of Lesotho. The Consortium comprised of three companies: Impregilo Spa (the second applicant) Hochtief and Concor Holdings (Pty) Limited.
Mr Fath was seconded by his employer Hochtief to the consortium during
March 2000. He remained so seconded until his arrest under a warrant on the
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23rd July 2004. It would appear that on the 9th September 2004 Hochtief recalled him from secondment and deployed him elsewhere. The consortium itself remains intact.
Following his arrest Mr. Fath appeared before a magistrate. There he was informed that he was before court in a representative capacity and was representing Impregilo Spa. In the meantime he had secured the services of a lawyer, advocate Phafane who arranged for his release on bail.
A charge of bribery against Impregilo Spa was read to Mr. Fath and the case was postponed to 26th October 2004.
On the 26th October 2004 Mr. Fath again appeared before court. This time he was in the company of Mr. Pritchard of Routledge Modise Moss Morris who represented Impregilo Spa. He himself was still represented separately by Advocate Phafane. The matter was then remanded for trial before this court on the 18th April 2005 after various arrangements had been made regarding service
of the indictment.
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On the 18th April 2005 senior and junior Counsel appeared before me representing Impregilo, the accused and second applicant herein. In anticipation of this application Mr Farber SC indicated that their appearance then and prior, and their agreement to appear again in court must not be regarded as any form of implied admission that either Mr Fath or Impregilo were properly before court. In the meantime the indictment had been lodged with the Registrar of this court. It was followed by a request for further particulars which were duly furnished by the Crown on the 11th April 2005.
In argument the applicants say that essentially what they seek is a declaration that this court lacks jurisdiction to try the second
Applicant, Impregilo, for two reasons:
the first applicant, Mr. Fath was wrongfully and unlawfully arrested on the 25 July 2004
the first applicant has not been properly cited in terms of section 338(2) of the Criminal Procedure and Evidence Act.
The Applicants argue that if I find that the first Applicant was wrongfully and
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unlawfully arrested and that he was not properly cited then this court's jurisdiction has been ousted and therefore the crown cannot further prosecute the second Applicant.
The Respondents in limine objected to the manner in which these proceedings were brought to court by way of notice of motion. They
argue that such procedure is not provided for in the Criminal Procedure and Evidence Act and that it is civil in nature.
The Applicants argue that nothing in the Criminal Procedure and Evidence Act ousts this courts' jurisdiction to determine the matter by way of civil proceedings and they see nothing in principle that would prohibit such a procedure being adopted. In this regard they point at a number of examples in this jurisdiction as well as in South Africa where such a procedure was adopted. I was referred in this regard to the unreported judgment in SOGREAH AND TWO OTHERS V DIRECTOR OF PUBLIC PROSECUTIONS (CRI/T/111/99) at p.p. 3-4 and the South African cases of S. V WELLEM SACR 18(E) at 20 c-d and NDLULI AND ANOTHER V MINISTER OF JUSTICE AND
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OTHERS 1978 (1) SA 893(A). There are indeed a number of other cases which were brought by way of notice of motion in criminal cases where it was sought to determine pre-luminary issues such as jurisdiction. In the Sogreah case the civil procedure adopted by the applicant's was taken for granted and no objection appears to have been taken thereto. The same appears to have been the case in the other cases referred to us by the applicants.
In the Court of Appeal case, THE DIRECTOR OF PUBLIC PROSECUTIONS V. HIGHLANDS WATER VENTURE C of A (CR)N0.8 of 2000 (unreported) it was only observed that "it was not contended that it was out of order to raise the issue in a civil proceeding and not in limine at the start of the forthcoming criminal trial". Nothing further was said on that score and the matter was determined as it stood.
In another judgment delivered by the same judges of appeal on the same day Steyn P. had this to say:
"If an accused could delay the commencement of a criminal trial by launching civil proceedings alleging that his right to a fair trial in a
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pending trial was jeopardized because of facts alleged by him, criminal trials would suffer unwarranted disruption and delays".
MASUPHA SOLE V. GUIDO H. PENZHORN AND OTHERS C of A (CIV) 21/2000.
The learned President then went on to say that the objection that had been raised by the appellant (applicant in the court a quo) raised both factual and legal issues which were therefore eminently suited for evaluation and determination in the court that was about to try him and in which in any case he had already raised the objection. In those circumstances it was held that the civil procedure adopted was inappropriate.
I pause here to observe that if the learned President and Judges of Appeal in the Director of Public Prosecutions V Highlands Water Venture (Supra) had considered invoking the civil procedure in pre-luminary criminal matters totally impermissible I can hardly imagine that they would not have said so expressly. It appears therefore that it may be permissible in certain circumstances; there is no blanket prohibition against adopting this procedure. It was prohibited in the
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particular circumstances of the MASOPHA SOLE case (supra) because, inter alia it combined legal and factual issues to be determined by the trial court. Such a situation also arose in the South African case of S. V GQOZO AND ANOTHER 1994 (2) SA 756 where it was held that the special plea that was raised as a defence there was so intertwined with the case as a whole that in disposing of it virtually all the evidence that would be led at the trial would have to be led at that preliminary stage. In dismissing the application Heath J. made this observation that:
"The reliance on the Indemnity Act does not raise a crisp issue, as would be the case when for example, the defence is raised that the court does not have jurisdiction", at p. 799J - 800A (My emphasis)
Thus in the Director of Public Prosecutions v Highlands Water Venture case (supra) the crisp question that arose was whether a partnership was susceptible to criminal liability. The applicant was, on motion proceedings granted a declaratory order. It follows that if the question as contended for by the applicant's is one of jurisdiction essentially and crisply then even if there is no specific provision for it in the Criminal Procedure and Evidence Act there
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appears nothing objectionable in bringing these proceedings on notice of motion. After all these proceedings are essentially still criminal in character although they may in some aspects resemble civil proceedings. As was said in NORTJE AND ANOTHER V ATTORNEY GENERAL, CAPE AND ANOTHER 1995, SA 460 at 485 D-E per MARAIS J.
" The fact that Courts have allowed proceedings of the kind in casu, which resemble in some respect civil proceedings, to be brought before, during, or after the hearing of the trial itself does not alter the fact that the proceedings are criminal in character" I respectfully agree with the learned Judge .
The objection to the jurisdiction of this court seems to me a strained one as, so the argument goes, it depends on the determination of whether 1st Applicant Fath was lawfully arrested on the 25 July 2004 and whether in the first place he is the servant of the second Applicant who is admittedly the accused in the impending trial. In argument the Applicant seems to rely on Section 162 (1) (e) of the Criminal Procedure and Evidence Act (the Act). Which reads in part
"162 (1) If the accused does not object that he has been duly served
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with the copy of the charge, or apply to have it quashed under section 159 he shall either plead to it or except to it on the ground
that it does not disclose any offence cognizable by the court
If he pleads to the charge he may plead
.......................................................
that the court has no jurisdiction to try him for the offence. (My emphasis)
The difficulty I have with this argument is that it is clear that in terms of subsection 2(e) this particular kind of jurisdiction has to be pleaded at the commencement of the trial and it has the effect of determining the trial and secondly the type of jurisdiction referred to in the sub-section means only that the objection taken relates only to the offence charged, that it is not cognizable in the court it has been placed before. Such an objection may be taken, by way
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of illustration, in the Magistrate Court that it cannot try a murder case. There is no suggestion in the present case that this court has no jurisdiction to try the second Applicant for the offence of bribery for which he stands charged.
I proceed now to deal with the matter of the arrest of Mr Fath. Following his arrest he was clearly informed that he had been brought to court in a representative capacity in order to secure the presence of a company of which he was a servant in terms of Section 338 (2) which reads:
" (2) In any criminal proceedings referred to in subsection (1) a director of a corporate body shall be cited as a representative of that corporate body, as the offender and thereupon, the person so cited may, as such representatives, be dealt with as if he were the person accused of having committed the offence."
After appearing before a Magistrate Mr. Fath clearly then followed this up and arranged for the attendance of the "person" accused because on his second
appearance he was with their attorney Mr Pritchard. Thus the attendance of the
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accused had been secured. Arrangements were made for the service of the indictment and it was followed up by requests for further
particulars. The accused was by then preparing fully for the impending trial against. The object of section 338 (2) had been achieved.
Now, for the purpose of a criminal trial, it matters not how the attendance of an accused was secured. If it was tainted with illegality then such a person is left to his civil remedies. (See Sogreah case (supra); NDLULI AND ANOTHER V MINISTER OF JUSTICE AND OTHERS (Supra); S. V MAKHATINI 1984 (2) 685 at 688. In the event I find it unnecessary therefore to consider rather technical arguments whether or not Mr Fath was properly cited or whether his arrest was lawful or not.
The only question left to consider is whether in fact Mr. Fath was in fact a servant of Impregilo, the second Applicant. Mr. Farber conceded that as at his arrest on the 25th July 2004 he was indeed such servant on the principle laid down in the Sogreah case that a servant of one partner in a joint venture is a servant of each and every other partner. He then argued that the situation
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changed on the 9th September when he left the joint venture and his company which had seconded him there deployed him elsewhere on business completely unrelated to the joint venture. The argument ignores the provisions of subsection 2 (b) which provide that:
" (b) if at any stage of the proceedings that person ceases to be a director or servant of that corporate body or absconds or is unable to attend, the court in question may, at the request of the prosecutor, from time to time substitute for that person, any other person who is a director or servant of that corporate body at the time of the substitution, and thereupon the proceedings shall continue as if no substitution had taken place."
The person therefore remains a representative until he has been substituted by the court at the request of the prosecutor. It was
thus held in EX PARTE PROKUREUR - GENERAL 1978 (4) SA 15 (T) per GOLDSTONE J. interpreting an identical section in South Africa:
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" It also follows from the provisions of section 332 (2) that the person summoned remains as such until the court concerned at the request of the prosecutor substitutes that person with someone else. In the event that that person summoned ceases to be a director or servant he nevertheless remains the representative of the corporate body until such time as he is substituted by the court with someone else"
Mr Fath was a servant of Hochtief a member of the joint venture MMC, which among its members was Impregilo, the second Applicant, by virtue thereof he was also a servant of Impregilo. He remains so until properly substituted.
It follows from the above that the plea as to jurisdiction based on the above grounds must fail. The application is dismissed.
The applicants herein had sought costs against the respondents if they were successful of course. The matter of costs does not necessarily,
follow in cases of this nature upon the success or failure of a party. In the case of DIRECTOR OF PUBLIC PROSECUTIONS V. HIGHLANDS
WATER VENTURE (supra)
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no order as to costs was made but it was made in the MASOPHA SOLE case. In the latter case the court remarked that the appeal was without merit at all. I would suggest with respect, that it is because of that, that the order was. As alluded to earlier applications of this nature are essentially criminal matters and unless they frivolous a court would not make an adverse order of costs. As was said in NORTJE AND ANOTHER V. ATTORNEY GENERAL, CAPE (supra) at 485.
" I do not think it would be appropriate to make any order now. In this country those who are charged on behalf of society with the prosecution have never been mulcted in costs when prosecutions fail or appeals against convictions and sentences succeed.
The few statutorily created exceptions are exceptions to the general principle.
The fact that the courts have allowed of the kind in casu.......does not alter the fact that the proceedings are criminal in character."
I respectfully agree with the dicta of the learned judge and add that the same principle should apply to accused persons with greater force since they are, in any case in a much weaker position than the state.
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I make no order as to costs.
T. NOMNGCONGO
JUDGE OF THE HIGH COURT
OCTOBER 17,2005
For Crown: Adv G.H. Penzhorn SC
Adv H.H.T. Worker
For Accused: Adv G.Farber SC
Adv D.F. Dorfling
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