IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CONSTITUTIONAL CASE NO. 10/2010
In the matter between:
MINISTER OF JUSTICE AND HUMAN RIGHTS 1ST APPLICANT
MINISTER OF LAW, CONSTITUTIONAL AND
PARLIAMENTARY AFFAIRS 2ND APPLICANT
DIRECTOR OF PUBLIC PROSECUTIONS 3RD APPLICANT
THE ATTORNEY GENERAL 4TH APPLICANT
CLERK OF THE MAGISTRATE`S COURT,
MASERU 5TH APPLICANT
BOFIHLA LETUKA RESPONDENT
CORAM: HON. JUSTICE MONAPATHI ACJ
HON. JUSTICE N. MAJARA J
HON. JUSTICE K.E. MOSITO AJ
Date of Hearing: 31 MAY, 2013
Date of Judgment: 14 JUNE, 2013
Application for recusal on the basis of perception of unfairness and possible bias – Judge having been a member of advocate’s Chambers that had represented Respondent at one stage of criminal proceedings giving rise to application before Court, but having not been personally involved in the criminal case.
Application for recusal on the basis of perception of bias – judge having expressed a legal opinion in another case in which he was appearing as Counsel.
Legal principles on recusal discussed and applied – Application refused.
Quashing the conviction and sentence of the Applicant on account of the violation of the Applicant`s right to fair trial in terms of section 12 of the constitution.
‘Dear Advocate Thetsane
Re: REX v MOLISE MZINI
I refer to the abovementioned matter and to my letter dated 2 March 2012 in which Advocate Mosito undertook to discuss this matter with you personally.
The purpose of this letter is to enquire whether Advocate Mosito has so discussed this matter with you, failing which, whether we should take steps to have the Appellant’s bail withdrawn for his failure to prosecute the appeal.
I explained to Advocate Mosito that as far as the Office of the Director of Public Prosecutions was concerned, and although the Clerk of the Court was responsible for the preparation of the Appeal Record, the Appellant himself should take positive steps to prosecute his appeal.
Advocate Mosito was unsure as to exactly what steps the Appellant should take because, as far as he was concerned, the record was already in possession of the Clerk of the Court.
Possibly this can be resolved when he contacts you.
With kind regards.
THE LEGAL PRINCIPLES ON JUDICIAL RECUSAL
 The generally accepted test for recusal is the existence of a reasonable suspicion or apprehension of bias (BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers’ Union and Another 1992 (3) SA 673 (A) at 693 I-J). Bias in the sense of judicial bias has been said to mean:
“a departure from the standard of even-handed justice which the law requires from those who occupy judicial office”
(see Franklin and Others v Minister of Town and Country Planning  AC (HL) at 103, quoted with approval by Howie JA in S v Roberts 1999 (4) SA 915 (SCA) at 922 I-J).
The requirements of the test were elaborated upon as follows in S v Roberts (supra) at paras  and  (pp924 E – 925D).
“(1) There must be a suspicion that the judicial officer might, not would, be biased.
(2) The suspicion must be that of a reasonable person in the position of the accused or litigant.
(3) The suspicion must be based on reasonable grounds.
(4) The suspicion is one which the reasonable person referred to would, not might, have.”
In the above regard, as warned in the BTR Industries case (supra) at 695 D-E:
“It is important……. to remember that the notion of the reasonable man cannot vary according to the individual idiosyncrasies or the superstition or the intelligence of particular litigants.”
In Sole v Cullinan and Others LAC (2000 – 2004) 572 at 586 this Court quoted with approval the following passage from President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC) at 177 B-D:
“The question is whether a reasonable, objective and informed person would, on the correct facts, reasonably apprehend that the judge has not or will not bring an 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 or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves.”
Regard must also he had to the fact that there exists a presumption against partiality of a judicial officer (S v Basson 2007 (3) SA 582 (CC) at 606 E-F).
APPLICATION OF THE LAW TO THE FACTS
The requirement for neutrality does not require judges to discount the very life experiences that may so well qualify them to preside over disputes. It has been observed that the duty to be impartial does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those with whom we share the planet. Indeed, even if it were possible, a judge free of this heritage of past experience would probably lack the very qualities of humanity required of a judge. Rather, the wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave.
True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.
K.E. MOSITO AJ
I concur ________________
T. MONAPATHI ACJ
I concur _______________
N. MAJARA J.
For 1st to 5th Applicants: Adv G J Leppan
For Respondent: Adv T. Mothibeli
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