CIV/APN/116/07

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

MAREMATLOU
FREEDOM PARTY Applicant

and

THE
INDEPENDENCE ELECTORAL COMMISSION

& 53
OTHERS Respondents

JUDGMENT

(On
Application for Recusal)

CORAM :
THE HON. MR JUSTICE S.N. PEETE,

THE HON. MRS JUSTICE A.M. HLAJOANE

THE HON. MRS JUSTICE M. MAHASE

DATE :
13th AUGUST, 2007

DATES OF
HEARING: 2nd and 3rd JULY 2007

PEETE, J.

[1]
Introduction

The
applicant seeks an order couched in the following terms:-

1. That
   the panel of judges appointed to hear the elected in the
   above-mentioned case recuse themselves from determining this
   election
   petition on the basis that there is reasonable likelihood
   that they might be biased or be perceived to be biased in favour of
   the opposing Respondents.

   
   

2

2. That
   any substantive or acting Judge of the High Court of Lesotho should
   equally recuse himself or herself on the basis that there
   is a
   reasonable likelihood that she/he might be biased or be perceived in
   favour of the opposing Respondents.

   
   

3. Granting
   Applicant/Petitioner further and/or alternative relief

   
   

4. That
   Respondents pay the costs hereof in the event of opposing this
   application.

   
   

[2] In the pending principal application filed on the 9 March 2007,
the applicant has sought an order couched thus:

1. declaring
   as unconstitutional and invalid the final allocation of seats in
   the National Assembly, by the First Respondent following
   the 2007
   Elections;

   
   

2. declaring
   the alliance between the LESOTHO CONGRESS FOR DEMOCRACY (LCD) and
   the NATIONAL INDEPENDENT PARTY (NIP) to contest
   the 2007 Elections
   as a single entity for purposes of allocation of seats in a mixed
   member proportional representation in
   the National Assembly;

   
   

3. declaring
   the alliance between the ALL BASOTHO CONVENTION (ABC) and the
   LESOTHO WORKERS PARTY (LWP) to contest the 2007 Elections
   as a
   single entity for purposes of allocations of seats in a mixed
   member proportional representation in the national Assembly;

   
   

4. following
   the declarations in (a,) (b) and (c) above directing first
   Respondent to re-allocate the seats in the National Assembly
   in
   accordance with the formula provided for in Schedule 5 of the
   National Assembly (No.1) (Amendment) Act No16 of 2001;

   
   

3

e. directing First Respondent to pay the costs hereof and any other
Respondents to pay such costs in the event of opposing this
petition;

5. granting
   the Petitioner further and/or alternative relief

   
   

[3] The hearing of this application had been set down for argument
on the 2nd and 3rd July 2007, the applicant urgently filed
the
application seeking the recusal of the present panel as in paragraph
1 above, and the hearing of arguments from both sides
lasted for two
days.

[4] Having perused the applicants notice of motion and the
supporting affidavit and having heard arguments from all counsel for

the applicants and for the respondents, the Court dismissed the
application and indicated that full reasons will follow later.
These
are the reasons:

[5]
Section 12 (8) of the Constitution of Lesotho reads thus:

"(8) Any court or other adjudicating authority prescribed by law
for the determination of the existence or extent of any civil
right
or obligation shall be established by law and shall be independent
and impartial; and where proceedings for such a determination
are
instituted by any person before such a court or other adjudicating
authority, the case shall be given a fair hearing within
reasonable
time. " (Our emphasis)

[6] An
independent and impartial Court is a bastion of a fair trial - civil
or criminal. If there exist cogent reasons for an apprehension
that a
Judge might not be independent or impartial an application for
recusal may be made for the recusal of the trial Judge.

4

[7] In his affidavit, Mphosi Matete - an incumbent deputy president
of the applicant alleges as follows:

1. That
   the Election Petition - CIV/APN/116/07 "concerns the
   distribution of seats in the National Assembly (of the 7 Parliament

   of Lesotho) for the proportional representation."

   
   

2. That
   the present panel has been appointed by the Chief Justice to deal
   with the said Election Petition.

   
   

3. That
   Minister Lesao Lehohla, a deponent for the 53rd Respondent is the
   "blood brother of the Chief Justice", ...and
   the main
   petition questions the legality of the actions of the Chief
   Justice's brother who is alleged is alleged to have signed
   a
   certain electoral pact between the Lesotho Congress for Democracy
   and National Independent Party. It is alleged the said
   pact had the
   effect of bastardizing the formula provided for allocation of seats
   for proportional representation.

   
   

4. It
   is also alleged that while Mr Moiloa is currently an Acting Judge
   of the High Court of Lesotho, he is also an instructing
   attorney
   for the 1st Respondent (The Independent Electoral Commission) and
   that Mr Molyneaux is an instructing attorney for
   the 2nd and the
   3rd Respondents namely — the Speaker of the National Assembly
   and the Attorney General (cited nominally)

   
   

5. That
   because the panel has been appointed by the Chief Justice to
   adjudicate on a matter that may affect the political career
   of the
   Chief Justice's blood brother and because Mr Moiloa though
   currently a Judge of the High Court, is a party to this election

   petition, therefore

   
   

"there is a real likelihood of bias in favour of the opposing
respondents and also a perception that there will be bias in
favour
of the opposing Respondents. Even if the present panel of Judges were
to recuse themselves, as they should

5

in the present circumstances, any other Judge or Judges appointed to
replace them will suffer the same fate. "

[8] The Respondents' counsel - Mr Brett SC, Mr Viljoen SC and Mr
Trengove SC elected not to file any answering papers - the matter

thus being heard on an urgent basis. Mr Viljoen explained that all
factual allegations in the founding affidavit were being admitted

save the inference of bias sought to be drawn under paragraph 8 of
the founding affidavit.

[9] When he rose to address the Court, Mr Ntlhoki, for the
applicant, emphasized the failure of the Respondents to file
answering
affidavit to controvert applicant's allegations and also
submitted that even those in para 8 should be taken as admitted.
Well,
well, even if the respondents had agreed to our recusal, the
matter of recusal rests finally with the Court, whose impartiality

and independence is being impugned.

[10] Mr Ntlhoki submits in the main that since the panel of Judges
has been appointed by a Judicial Service Commission whose Chairman
is
the Chief Justice and because the subject matter of the election
impacts on the political interests of the Chief Justice's blood

brother, there is a reasonable apprehension that the panel will be
biased in favour of the Chief Justice's brother - Mr Ntlhoki
even
remarking that Judges of the panel felt a ""sense of
gratitude'' to the Chief Justice for their appointment! Mr
Ntlhoki
argues that because of this there

6

exists a real perception that Judges of the panel may be biased on
that ground.

[11] Mr Ntlhoki, relying on the Swazi case of Sappire, advanced the
other leg of his argument: that of Mr Moiloa's current position
as an
acting Judge and the uncontroverted allegation that he has
participated as a party in the election petition, a sense of
"judicial collegiality" would create a real likelihood of
bias - adding that the bias need not be actual or even conscious.

[12] He submitted that the two legs of his argument should carry the
day and that the Judges of the panel recuse themselves.

[13] Mr Brett for the respondents firstly argued that the
application for recusal is not bona fide and that it has filed with

ulterior motive to procrastinate the hearing of the election petition
and that since April 2007 when Minister Lehohla's affidavit
was filed
some two months have gone by.

[14] He submitted that Mr Moiloa was not a member of the panel while
perhaps he, being and instructing attorney, was a party to
the
proceedings.1 He conceded that whereas Mr Moiloa was currently an
Acting Judge of the High Court - that fact of acting appointment
was
far too removed to found any cogent reason for recusal. He contended
that Sappire's case could be distinguished as Justice
Sappire was the
litigant and his colleagues on the bench recused themselves upon the

1 High
Court Rules 1980 - Interpretation Section

7

ground that nemo sibi esse index Duis uis dicere debet2 —
whilst Mr Moiloa is admittedly an instructing attorney, he is not

listed as a litigant amongst the respondents. His personal or
proprietary interests or status are not at all in jeopardy due to
any
result of this application.

[15] Mr Viljoen, for his part submitted that the principles and
tests in recusal applications are quite clear. Firstly the "double

-reasonableness test" inquires whether a reasonable man, well
informed and right-minded might in the particular circumstances
of
the case be influenced or be biased in favour of the respondents. He
then cited the Masupha Sole case3, where the following
was stated:-

"[21] It is necessary in this regard first to state the legal
test applicable to recusal of a Judge. This is because earlier

decisions grappling with this issue as a matter of English law have
aptly been described by Lord Gqff of Chieveley as 'not only
large in
number but bewildering in their effect1 ... the highest Courts both
in South Africa more recently in Swaziland have applied
this test.
Minister of Justice v Sappire, Case No.49/2001, Swaziland High Court,
10 June 2002 (unreported) p9. See also the previous
decisions by this
Court in Sekoati & Ors v President of the Court Martial &
Others, LAC (1995-1999) 812; 2001 (7) BCLR
750 (Les CA) and Law
Society of Lesotho v Prime Minister of Lesotho LAC (1985-9) 129.

The question is whether a reasonable, objective and informed person
would, on the correct acts, reasonably apprehend that the Judge
has
not or will not bring an

2 Nemo
debet esse index in propria causa (no one should be a judge in his
own cause) - R v Plaatjes, 12SC 351; Rhodesian Railways
v Mackintoch
1932 AD 373, Director of Education v Wilkinson 1930 TPD 480; 1966
THRHR 325.

3 Sole v
Cullinan - LAC (2000 - 2004) 572 at 586 J.

8

impartial mind to bear on the adjudication of the case, that is a
mind open to persuasion by the evidence and the submissions of

counsel The reasonableness of the apprehension must be assessed in
the light of the oath of office taken by the Judges to administer

justice without fear or favour and their ability to carry out that
oath by reason of their training and experience. It must be
assumed
that they can disabuse their minds of any irrelevant personal beliefs
of predispositions. They must take into account the
fact that they
have a duty to sit in any in which they are not obliged to recused
themselves. At the same time, it must never be
forgotten that an
impartial Judge is a fundamental prerequisite for a fair trial and a
judicial officer should not hesitate to
recuse herself or himself if
there are reasonable grounds on the part of a litigant for
apprehending that the judicial officer,
for whatever reasons, was not
or will not be impartial.

President
of the RSA v SARFU, 1999 (4) 147 at 177B-E.

In my view the general test for recusal cited in the previous
paragraph, itself since cited with approval by the Court of Appeal
in
English (Locabail Ltd v Bayfield Properties Ltd, Supra), should be
applied in Lesotho too. As South Africa's Supreme Court of
Appeal has
noted, in applying this test, 'the purpose of formulating the test as
'double-reasonableness' is to emphasize the weight
of the burden
resting on the appellant (sic) for recusal."

[16] Mr Viljoen strenuously submitted that it was "outrageous"
for the applicant's counsel to suggest that despite their
having
taken a judicial oath, the Judges on the panel would likely be biased
in the adjudicating upon a case in which a brother
of the Chief
Justice has interest.

9 [17] Mr
Trengove's submissions are as follows:

1. There
   exists a presumption of impartiality once a Judge has taken a
   judicial oath wherein he or she makes a solemn declaration
   to
   dispense justice without fear or favour. He cited the case of S v
   Basso a 2007 (3) SA 582.

   
   

2. In
   the case of South African Commercial Catering and Allied Workers
   Union v Irvin & Johnson 2000 (3) SA 705 (CC) it was
   emphasized
   that this presumption is not easily dislodged, and that cogent and
   convincing evidence is necessary in order to
   do so, and that
   Cameron AJ had stressed the fact that the onus resting on the
   applicant alleging bias is quite considerable
   and that "the
   threshold for a finding or real or perceived bias is high". It
   is a finding that must be carefully
   considered since it calls into
   question an element of judicial integrity (R v S (RO) [1997] 3 SCR
   484 (SCC) para 113]. This
   is more so when the Bench is composed of
   more than one Judge because the allegation of "concerted"
   bias must be alleged
   and established. It cannot easily be assumed.

   
   

3. Mr
   Trengove further submitted that there was no cogent reason that
   despite their judicial oath the Judges of the panel could
   feel
   beholden to the Chief Justice first for their respective
   appointments to the Bench, to the panel and for their continued

   existence on the Bench. Preposterousness and illfoundedness of this
   allegation can dumbfound any reasonable man and that

   
   

10

such a perception is not at all reasonable. Security of tenure which
the permanent Judges enjoy under the constitution renders
impossible
their removal from the Bench by Chief Justice without resort to
provisions of Section 121 (3) (4) of the Constitution
of Lesotho.

[18]
Definitions

(a)
Oxford English Dictionary defines "recusal" as

"(of a judge) excuse oneself from a case because of a possible
lack of impartiality".

2. In
   the Dictionary of Legal Words and Phrases "recusation"

   
   

"Takes place when a judicial officer decides to withdraw from a
case because he has come to the conclusion that it would be
improper
for him to adjudicate in that particular case"4

2. Thus
   where two judicial officers as colleagues sit on the same bench and
   one is a litigant or an accused, it is proper for the
   other to
   recuse himself — SA Motor Acceptance Corporation (Edms) Bpk v
   Oberholzer - 1974 (4) SA 808 T and Nemo debet esse
   index in propria
   causa - No one should be a judge in his cause. R v Plaatjies 12 SC
   351; Rhodesian Railways v Mackintosh 1932
   AD 373; 1966 THRHR 325;
   nemo sibi esse index suis jus dicere debet and Director of Education
   v Wildinson - 1930 TPD 480.

   
   

4 Head
and Fortuin v Woolaston and de Villiers 1926 TPD 549

11

Bias:
Dictionary of Legal Words and Phrases states:-

"Every person who undertakes to administer justice, where he is
a legal or official or is only for the occasion engaged in
the work
of deciding the rights other is disqualified if he has a bias which
interferes with his impartiality " —

Liebenberg
v Brakpan Liquor Licencing Board 1944 WLD 52, S v De Vries Diary
Board vs Imperial Cold Storage and Supply Co Ltd

- 1977
(3) SA 659 (A) - See 1964 SALJ (for real likelihood of bias). See
also R v Silber 1952 (2) SA 475 per Schreiner JA, S v Khala
1995 (1)
SACR 276 (A) (e-j) - Lord Denning in Jones v National Coal Board -
[1957] 2 All ER 155 (CA) at 159B. S v Dzukuda - 2000
(4) 1078.

[19] The double-reasonableness test was perhaps well articulated in
the Irvin case 2000 (3) (SA) 705 (CC) where the Constitutional
Court
of South Africa held that in considering an application for recusal,
the Court should as a starting point presume that judicial
officers
are impartial in adjudicating disputes; and that the onus rests on
the applicant to rebut the presumption of judicial
impartiality, also
bearing in mind that his presumption is not easily dislodged because
it requires cogent or convincing evidence
to be rebutted. It was
further held that not only must the person apprehending bias be a
reasonable person but the apprehension
itself must in the
circumstances be reasonable; and that mere apprehensiveness on the
part of the litigant that the Judge would
be biased is not enough;
and that the Court has to

12

scrutinize the apprehension carefully to determine whether it is to
be regarded as reasonable. In adjudging this, the Court superimposes

a normative assessment on litigant's anxieties thus attributing to
litigant's apprehension a legal value and thereby deciding whether
it
is such that it should be countenanced in law. Legal standard of
reasonableness is that expected of a person in the circumstances
of
the individual whose conduct is being judged.

[20] It has also been held that a junior judicial officer should
recuse himself where his senior judge is a litigant or witness
on the
ground that there would be a tendency for his or her mind to be
inclined towards bias - S v De Vries - 1964 (2) SA 110.

[21] Furthermore, in casu it has not been shown or even alleged that
in deciding favourably with the 53rd respondents (of which
the Chief
Justice's brother is the deputy leader of the ruling LCD party)
replace the panel Judges stand to gain any advantage,
dividend or
patronage from the Chief Justice and that they shall forever stand
beholden to the Chief Justice.

[22]
Recusal of the Entire Bench

Mr Ntlhoki in his notice of motion also prays that all other Judges
of the High Court of Lesotho should recuse themselves upon
the same
grounds advanced. Putting aside procedural points such as non-joinder
this is a far reaching prayer which if granted would
create a very
serious constitutional crisis or dead lock and other practical

13

difficulties, the upshot of which would be to nullify the basic claim
of the applicant by sowing the seeds of its own destruction.
In this
world of the living, complete neutrality or impartiality is not
always possible; Judges are but human beings how have taken
a
judicial oath and have some legal training and experience. They also
have conscience as Judges.

[23] We hold that Mr Trengove's submission on this aspect is quite
ingenious and appealing. The doctrine of necessity provides
that:

"...Although there is a general rule that a Judge who is not
impartial is disqualified from hearing the case, there is an

exception to this rule that allows a Judge who would otherwise be
disqualified to hear the case nonetheless, if there is no impartial

Judge who can take his place. The law recognized that in some
situations a Judge who is not impartial and independent is preferable

to no Judge at all. This doctrine seems to have gained general
acceptance since 1430; and it has been applied by the highest courts

of the several common law jurisdictions in Canada, Australia, United
States and England. "

Halsbury's
Law of England 4th ed (Butterworths 1989 Vol. 1 (1) para 93 states:-

"If all members of the only tribunal competent to determine a
matter are subject to a disqualification, they may be authorized
and
obliged to hear and determine that matter by virtue of the operation
of the common law doctrine of necessity." [Tracey
—
Disqualified Adjudicators: The Doctrine of Necessity in Public law

[1982 - Public Law 628 at 641.

14

This doctrine seeks to prevent possible frustration of justice
through any subterfuge and is raised only in exceptional
circumstance.

[24]
High Court Rule 8 (10)

About Mr Ntlhoki's procedural point that the respondents did not file
any answering affidavit to controvert all the allegations
in the
founding affidavit, we wish to point that nothing turns on this
argument because even if they filed such answering affidavits,
the
issue sui generis is between the applicant who bears the onus and the
Court and nothing rests upon the respondent and no adverse
finding
needs to be made concerning their failure to controvert the
applicant's allegations. Indeed the application could have
been made
ex parte without notice even to the respondents!

[25] The
following must be clear:-

1. Each
   of the Judges on the panel and indeed all Judges permanent on the
   Bench of the High Court of Lesotho including the Chief
   Justice have
   all taken an oath of office to adjudicate in all cases without fear
   or favour prejudice.

   
   

2. Judicial
   independence has two aspects. First, institutional independence as
   guaranteed under section 118(2) of the Constitution
   and individual
   independence which each Judge enjoys in every case he adjudicates
   and in this latter

   
   

15

independence, Judge cannot be influenced by any person or authority
in deciding the matter in casu.

Recusal application necessarily impinges on judicial integrity of the
Judge in that his impartiality is being called into question
under
circumstances sometimes not of his own making, sometimes of his own
volition and creation. He or she must make a choice from
his or her
own conscience. At times the Judge may for a good reason recuse
himself or herself mero motu. A Judge must never feel
himself or
herself slighted or offended by an application for recusal except
where uncourtly language or insinuations are made
without good
reason.

3. The
   appointment to the panel of three Judges in this election petition
   has been done in accordance with the provisions of the
   law and the
   Constitutional Litigation Rules. No covert or ulterior motive or
   unethical instructions have been shown to emanate
   from the Chief
   Justice regarding the conduct of the case. If such were shown, the
   gravity of the matter would then be clear to
   all to see and
   perceive.

   
   

3. Mr
   Moiloa, a current Acting Judge, is not a member of the panel, and
   though a party in terms of Rules of this Court as an instructing

   attorney, he is not one of the respondents. Mr Moiloa has no
   personal stake in the outcome of the case. As a professional man,

   his personal interest is perhaps limited to his professional fees.

   
   

16

5. If
   Mr Moiloa was perhaps cited as one of the respondents in the
   petition, then the apprehension of bias would be reasonable, or
   if
   the Chief Justice despite the blood relationship alleged was a
   member of this panel in the election petition — (see
   also
   Liebenberg v Brakpan Liquor Licencing Board - 1944 WLD 52 at 59; S v
   Bam 1972 (2) SA 41.

   
   

5. It
   should however be remarks that Mr Moiloa was currently still holding
   a position of Acting Judge when he purportedly acted also
   as an
   instructing Attorney for the 1st Respondent as evidenced by
   Annexures "A" and "B" to this Application.

   Annexure "A" being the session roll for Mohale's Hoek from
   18 June to 6th July 2007. Annexure "B" being
   correspondence to Applicant's Attorney by Mr Moiloa dated 20th June
   2007. This dual role could create some confusion and possible

   apprehension of conflict of interest. It would be confusing to being
   a Judge in the morning and Counsel in the afternoon of the
   same day.
   The two roles have to be clearly separated.

   
   

[26] We therefore hold that the relief sought by the applicant
should be refused upon the sole ground that the apprehension of
bias
does not pass muster of the double-reasonableness test and is thus
not well founded.

17

[27] It must lastly be pointed out that if at anytime the
impartiality of a judicial officer is sought to be impugned,
applicant
counsel must always indicate his intentions to the Judge in
chambers out of etiquette so that the matter of the recusal can be
thrashed out confidentially in the presence of the other side. A
Judge - out of his own conscience may then recuse himself - or
elect
that the matter be thrashed out in open Court because the application
for recusal must never be sprung on the Court. Application
for
recusal can sometimes involve the very integrity of the Court.

HLAJOANE,
J.

On Costs

[1] There is always a purpose for giving an award and as such an
award of costs in no exception to that general principle. Normally

costs are awarded to a successful party so as to enable him to
recover the expenses to which he has been put by having been
compelled
to either initiate or defend litigation. We say costs as a
general rule follow the event. These costs are sums of monies the
Court
orders one litigant to pay to the other litigant as
compensation for the expenses incurred in litigation, Jonker v
Schultz 2002
(2) SA 360 at 363.

[2] Authorities have shown that a costs order is not intended to be
compensation for a risk to which one has been exposed, but
a refund
of expenses actually incurred, see Payen Components

18

South Africa Ltd vs Bovic Caskets cc and Other 1999 (2)

SA 409 at 417.

[3] The former statement does not contain a full explanation of the
purpose of an award of costs. The statement refers only to
an award
of party and party costs which is in no way is a full indemnification
because if an award of costs is to serve as an indemnification,
then
award of costs on a Attorney and client scale should have been the
rule rather than an exception.

[4] In casu, the applicant filed an application for recusal on
Friday 29 June 2007 when the main application was already set for

hearing for the 2nd and 3rd July, 2007, which was Monday and Tuesday
of the following week. Instead of dealing with the main application

the Court was faced with the recusal application.

[5] On the date of hearing, counsel for respondents indicated that
they were not going to file any opposing affidavits but were
going to
argue from the bar. Applicant's counsel on the other hand submitted
that his application should be taken as unopposed
in the absence of
any answering affidavits by the respondents. The Court had been of
the feeling that it was ex pacto that answering
papers as well as
replying were not going to be filed. Applicant's counsel showed that
he was not in agreement with the proposition
that answering
affidavits be not filed.

19

The Court had that feeling because as the matter was being discussed
in chambers applicant's counsel had remained silent. But when

advancing his argument in court he indicated that he could not
respond as he wanted to use that novel kind of procedure as his

weapon to show that he had not been challenged in his averments. He
referred the Court to the case of Theko v Compol 1991-92 LLR
& LB
239.

[6] Theko's case is distinguishable from our case in that, in casu
no answering papers were filed at all, but in Theko the answering

affidavit was filed but in it respondents failed to respond or
challenge the correctness of the averments contained in the founding

affidavit. That was why the Court decided that under the
circumstances it was of the view that the issues were going to be
resolved
on the basis of the acceptance of the unchallenged evidence
of the applicant.

[7] The Court had already given its ruling on the question of costs,
that each party bear its own costs. It has to be remembered
that as
suggested by some jurists, there is no all embracing rationale
covering all award of costs. It was said in Philipp v Lindau
1948 (1)
SA 1033 at 1036 that, "costs lie where they fall". This was
decided by the Court in the case where the Judge
presiding resigned
on the ground of ill health and the Court on considering the question
of costs said, "the loss must be
borne where it falls, "
and made no order as to costs.

20

[8] But in casu a decision has been made of dismissing the
application for recusal. As already stated above, there is no all
embracing rational covering all awards of costs safe to say that each
case has to be decided on its own merits. Even a successful
party can
be deprived of the costs where in the Court's discretion it appears
just.

The application of the general rule that costs follow the event might
create some certainty in some instance whilst lacking justice
in
quite a number of cases. The Court usually retains its unfettered
discretion in awarding costs. So that even the general rule
is still
subject to the overriding principle of the Court's discretion, Union
Government (Minister of Railways and Harbours) v
Heiberg 1919 AD 477
at 484.

[9] The Court therefore in the exercise of its discretion considered
that though there is no time limit within which to bring
an
application for recusal there has been some delay in bringing this
application. But the respondents also on the other side failed
to
oppose the application as they not even file an intention to oppose.
They therefore decided to argue from the bar. They did
not even
attempt to ask for a postponement with an award for costs against the
applicant. The Court had even asked as to how it
was going to be
possible to decide the matter in the absence of having heard the
respondent's side of the story on the averments
by the applicant; but
respondents argued will

21

argue from the bar as they were only disputing only one prayer out of
the eight from the founding affidavit.

The application for recusal of the panel of Judges is dismissed.

The Court has thus in the exercise of its judicial discretion ordered
that each party bear its own costs.

[10] In conclusion we say the following: Applications for recusal
always need to be considered by counsel with all due sincerity

because the integrity of the presiding Judge is thereby being brought
to book — not that every judicial officer is impeccable
or
beyond reproach. In year 2002 a rather unique application was made by
counsel to the High Court of Lesotho for an order that
the Court
should declare itself to be "not independent and impartial"!
- This application was being brought before High
Court that had
previously solemnly admitted as advocates and as attorneys of the
High Court, the very counsel seeking who were
then seeking the High
Court to bastardize itself. It was like a child telling its parents
that they are illegitimate!

[11] An application for recusal is indeed very serious matter which
deserves much reflection; it should not be resorted to as
a
subterfuge to thwart the hearing or adjudication of seemingly
sensitive or high profile cases. Judges are endowed each with
conscience and having taken the solemn judicial oath they are

5 Basotho
National Party v Government of Lesotho - Constitutional case no.5 of
2002.

22

under a solemn duty to hear all cases - small and big, simple and
complex, ordinary and even the highly sensitive. Judges should
not
always recuse themselves merely because of any complexity or
sensitiveness of any case for to do so it may appear is timidity
that
would not be acceptable to the right thinking people ofLesothao.

SN. PEETE

JUDGE

I agree

A.M.
HLAJOANE

JUDGE

Iagree

M. MAHASE

JUDGE

For
Applicant : Mr Ntlhoki

For
Respondents : Mr Brett, Mr Viljoen and Mr Trengove