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Mothobi and Another v Crown (C OF A (CRI) 2 OF 2010)
IN THE COURT OF APPEAL OF LESOTHO
C OF A (CRI) 2 OF 2010
In the matter between:
THABISO MOTHOBI …............................First Appellant
PHAKISO MOLISE …...........................Second Appellant
THE CROWN …........................................RESPONDENT
Heard : 8 October 2010
Delivered: 22 October 2010
Referral of question by magistrate to High Court in terms of s 128 (1) of the Constitution – directive by Chief Justice referring matter back to Magistrates’ Court on ground that question referred “misplaced” – invalidity of directive – magistrate entitled to ignore – Magistrates’ Court having no jurisdiction until referral dealt with by High Court.
 This is an appeal against the decision of Peete J who on 26 November 2009 dismissed an appeal against both the refusal of the Chief Magistrate of Maseru to recuse himself and an order of the latter dismissing a plea that the Magistrates’ Court lacked jurisdiction to entertain the further prosecution of the criminal charges preferred against the appellants. Before dealing with the issues as they emerged in this Court, it is necessary to outline the events and various proceedings in the Magistrates’ Court which ultimately resulted in the present appeal.
 On 30 August 2005 the appellants appeared before the Resident Magistrate, Mr. Nthabi, charged, in the case of the first appellant, with assisting the second appellant (a prisoner serving a term of 15 years’ imprisonment) to escape from prison, and, in the case of the second appellant, with escaping. Each appellant was represented by counsel. Both were present in court. However, before the appellants were required to plead, the magistrate mero motu raised a constitutional question and referred it to the High Court. The question – although not closely formulated – was essentially whether the institutional independence of the magistracy was such that he had jurisdiction in respect of charges such as those preferred against the appellants. In the record of the proceedings the magistrate noted that the Director of Correctional Services had “quite materially a direct interest by reason of the fact that [the second appellant] allegedly escaped from his custody and further that [the first appellant] allegedly helped the other to escape”, and pointed out that “the factual position is that the Director of Correctional Services and I fall under the same Ministry and under the same Principal Secretary”. He posed the questions “whether the Magistrates’ Court of which I am the Resident Magistrate meets the constitutional requirement that the courts be independent and subject only to the Constitution and the law” and “can an informed, objective and reasonable person say a Lesotho magistrate is working under conditions which will make him or her dispense justice without fear, favour or prejudice?”. He proceeded:
“It is against this background that I mero motu refer this matter to our High Court, as it has jurisdiction to determine constitutional issues, to make a pronouncement on the current stature of our subordinate courts whether they are part of our judiciary and thus enjoy institutional independence or whether they are but a department within the Ministry of Justice, Human Rights and Rehabilitation and do not enjoy the same independence the judiciary has”.
 Although the magistrate did not refer to the relevant sections of the Constitution, it is clear that the sections he had in mind were s 118 (2) and s 128 (1) and (2). In terms of s 118 (2) the courts of Lesotho are to be independent and subject only to the Constitution and any other law.
The section reads:
118 (2) “The courts shall, in the performance of their functions under this Constitution or any other law, be independent and free from interference and subject only to this Constitution and any other law.”
(Reference should perhaps also be made to the phrase “an independent and impartial court” in s12 of the Constitution.) Section 128 (1) provides that whenever “any question” as to the interpretation of the Constitution arises “in any proceedings in any subordinate court”, the court may refer the question to the High Court. Section 128 (2), in turn, provides that when a question is referred to the High Court, that court “shall give its decision upon the question.” For convenience I quote s 128 in full.
128 (1) Where any question as to the interpretation of this Constitution arises in any proceedings in any subordinate court or tribunal and the court or tribunal is of the opinion that the question involves a substantial question of law, the court or tribunal may, and shall, if any party to the proceedings so requests, refer the question to the High Court.
(2) Where any question is referred to the High Court in pursuance of this section, the High Court shall give its decision upon the question and the court or tribunal in which the question arose shall dispose of the case in accordance with that decision or, if that decision is the subject of an appeal under section 129 of this Constitution, in accordance with the decision of the Court of Appeal.”
 In the event, the High Court did not give its decision on the question referred to it. Instead, on 5 September 2005, the Chief Justice issued a directive in which he indicated that the question referred to the High Court by the Resident Magistrate would not be decided by the High Court and that the case should be re-allocated to another Magistrate if the Resident Magistrate had misgivings about being seized with the matter. The directive was conveyed by the Registrar of the High Court to the Clerk of the Court in the form of a savingram.
The material part reads:
“I have been directed by His Lordship the Chief Justice to inform you as follows:
The unsigned statement by Resident Magistrate has been noted. The constitutional question raised mero motu by the learned Resident Magistrate Mr. L.P. Nthabi is rather misplaced and is indeed an issue not pertinent to the present criminal proceedings which have not yet begun. The independence of the judiciary of which the magistracy is an integral part, is a question which can be raised and discussed in a different forum.
It is not necessary therefore to make any pronouncement on this issue. If the Learned Magistrate has any misgivings about being seized of the matter, it is advisable that the criminal case be re-allocated to another judicial officer.”
 On 12 September 2005 the Chief Magistrate, Mr. Makara, convened the court in order to convey to counsel appearing for the appellants and the Director of Public Prosecutions the contents of the administrative directive which had been given by the Chief Justice. Following some discussions between counsel, the Director of Public Prosecutions and the Court, the matter was postponed to enable the Resident Magistrate “to give effect to the directive or consider it accordingly”: It appears however that the Resident Magistrate refused to do so on the grounds that the matter had been judicially referred to the High Court and there was nothing more for him to do. In these circumstances, the Chief Magistrate re-allocated the case to himself.
 On 11 January 2006 an application was filed in terms of which the appellants gave notice of their intention to plead to the charge (or except to it) on the ground:-
“That the court presided over by the learned Chief Magistrate has no jurisdiction to try them while the issues previously referred to the High Court by the learned Resident Magistrate have not been judicially dealt with by the High Court.”
The matter was argued on 16 January 2006. The contention on behalf of the appellants, shortly stated, was that for the purpose of the application the merits of the constitutional question referred to the High Court were irrelevant, as was the question whether the Resident Magistrate had misdirected himself; that in terms of s 128 of the Constitution it was for the High Court to adjudicate these issues and neither a judge nor the Chief Justice himself was “the High Court” within the meaning of the section; that accordingly the Chief Justice’s administrative directive was a nullity and the Magistrates’ Court would re-assume its jurisdiction only once the High Court had made its decision as contemplated in s 128 (2) of the Constitution.
 On 6 February 2006 and before the Chief Justice had handed down judgment the appellants filed an application for the Chief Magistrate to recuse himself from adjudicating “the main application”, i.e. the application concerning the question of jurisdiction. The grounds for the recusal application were said to be the danger of ‘apparent bias’ by reason of the fact that the Chief Magistrate had already re-allocated the case to himself and the reasonable suspicion that the Chief Magistrate would be “loath to giving a ruling at variance with his approbation of the [Chief Justice’s directive]”.
 Following argument on the recusal application and on 18 April 2006, the Chief Magistrate gave judgment dismissing both applications. In his judgment on the jurisdiction issue the Chief Magistrate made it clear that while he fully appreciated the factual and legal foundations of the appellants’ case with regard to the referral made by the Resident Magistrate, it was not for him to review the administrative acts of the Chief Justice; nor was he qualified to do so. However, by reason of the latter’s directive there was in fact no case pending before the High Court and a stalemate situation had arisen. He reasoned that in these circumstances he was ultimately bound to exercise jurisdiction, otherwise the case would in effect be pending in neither court. He expressed the view that the appellants had pursued the wrong relief; a proper remedy, he said, would have been to explore the bringing of a mandamus to compel the Registrar of the High Court to refer the referral to the civil registry for registration and to persuade the High Court to pronounce on the lawfulness of the administrative directive.
 With regard to the recusal application, the Chief Magistrate rejected the suggestion that his impartiality would be compromised by a desire to give effect to the Chief Justice’s directive. He pointed out that the case had been referred back to his court, whether lawfully or unlawfully, and in the circumstances he had no alternative but to re-assign the case. He categorized as unfounded the suggestion that by reason of his inferior position in the working relationship between himself and the Chief Justice it would be impossible for him to act contrary to the wishes of the latter.
 On appeal to the High Court, Peete J strongly criticized the Resident Magistrate for raising “an enormous constitutional issue of judicial independence” which, he said, “was unconnected with the criminal proceedings in casu.” But this was said in passing and was not the basis on which the learned judge dismissed the appeal on the issue of jurisdiction. The grounds upon which he did so are twofold. First he agreed with the Chief Magistrate that as a consequence of the Chief Justice’s directive, the matter was no longer pending in the High Court, as would be the position, for example, in the case of an appeal that had been struck from the roll. Accordingly, so the learned judge held, the Chief Magistrate had jurisdiction in the matter and it was accordingly competent for him to re-allocate the matter either to himself or another colleague. The second ground was that on a proper construction of s 128 (1) of the Constitution it was competent for the Resident Magistrate to make a referral only after the appellants had pleaded, as until then he was not “judicially seized with the trial and a referral he purported to make could in no way affect the criminal trial yet to begin.” As far as the recusal application issue was concerned, the judge found the Chief Magistrate’s reasons for refusing to recuse himself to be “fair and convincing”. He held, too, that since both the jurisdiction and the recusal issues were precipitated by the referral, it followed that once the former was decided against the appellants, the latter similarly had to be decided against them.
 In this Court the two main arguments advanced by Adv Thetsane KC on behalf of the Crown were, first, that the question referred to the High Court by the Resident Magistrate was not one which could properly be so referred and second, that until the directive of the Chief Justice was set aside it remained binding on the Magistrate and could not be ignored. Accordingly, so it was submitted, the Magistrates’ Court had jurisdiction to try the appellants on the charges preferred against them.
 As to the first issue raised by counsel for the Crown, it is clear that a magistrate has no jurisdiction to sit on appeal from, or review, another magistrate’s decision to refer a question in terms of s 128 (1) of the Constitution. It follows that in the present case it was impermissible for the court a quo, sitting on appeal from a decision of the Chief Magistrate, to decide the competence or otherwise of the referral by the Resident Magistrate. Whether a question referred by a magistrate in terms of s 128 (1) is a question properly so referred necessarily involves an interpretation of the Constitution. It follows that once a question is referred to the High Court, that court is obliged in effect to decide two constitutional questions. It must decide, first, whether the question is one properly referred within the meaning of s 128 (1) and second, if so, it must decide the question itself. Quite clearly, therefore, it was not within the power of the Chief Justice to dispose of the referral by way of an administrative directive sending the matter back to the magistrate for trial.
 This brings me to the second issue raised by counsel and that is whether the Magistrate from whose decision the present appeal arises was bound by the Chief Justice’s directive or whether he could ignore it as invalid.
 It is well established that even an unlawful administrative act is capable of producing legally valid consequences for so long as the unlawful act is not set aside in proceedings for judicial review. (OUDEKRAAL ESTATES (PTY) LTD v CITY OF CAPE TOWN 2004 (6) SA 222 (SCA) at 242 A-C para 26). Various grounds have been advanced to justify this apparent departure from the doctrine of legality. It has been said that by reason of the evidential presumption of validity, the administrative act is presumed to be valid until it is found to be unlawful. The rule has also been justified on the grounds of delay and the need for certainty. Yet another justification is that an invalid administrative act may, notwithstanding its invalidity, serve as the basis of a subsequent valid act because it is the factual existence rather than its invalidity that is the cause of the subsequent act. See OUDEKRAAL ESTATES (PTY) LTD v CITY OF CAPE TOWN, supra, at 242C – 243F paras 27-29. But it is also well recognized that in certain circumstances the validity of an administrative act can be challenged not only directly in review proceedings but also indirectly or, as it is sometimes said, collaterally, i.e. in proceedings which are not themselves designed to impeach the validity of some administrative act or order. Obvious examples are enforcement proceedings and criminal prosecutions (NATIONAL INDUSTRIAL COUNCIL FOR THE IRON, STEEL, ENGINEERING & METALLURGICAL INDUSTRY v PHOTOCIRCUIT SA (PTY) LTD 1993 (2) SA 245 (C) at 252J – 253B). Other examples would include where there was a “manifest absence of jurisdiction” for the administrative act or order that was the subject of challenge. (LESOTHO HOTELS v MINISTER OF TOURISM, SPORTS AND CULTURE LAC (1995 – 1999) 578 at 583B -584F and authorities cited thereat). Similarly, a collateral challenge is permissible where the coercive powers of an administrative act or order are dependent for their validity on the lawfulness of the act or order. (OUDEKRAAL ESTATES (PTY) LTD v CITY OF CAPE TOWN, supra, at 254E para 33).
 The effect of the referral in the present case was to deprive the Magistrates’ Court of jurisdiction to hear the case against the appellants until such time as a decision had been given by the High Court. This much is clear from s 128 (2) of the Constitution. Likewise, it is clear that the Chief Justice exercising his administrative powers to regulate the running of the High Court is not “the High Court” within the meaning of the section. Given the conflict between the directive on the one hand and s128 of the Constitution on the other, there can be no basis for presuming the directive to be valid; nor could the acceptance of its validity be justified on the grounds of the need for certainty or the avoidance of delay in making the challenge. What the directive purported to do was to direct the Magistrates’ Court to exercise a jurisdiction which in terms of the Constitution it did not have. But that jurisdiction could not be dependent on the mere fact of the directive; it had to be dependent on the validity of the directive. In other words, the power to give such a directive or – to put it more strongly – to coerce the Magistrates’ Court into exercising jurisdiction was dependent for its validity on the lawfulness of the directive. In my view, therefore, this is a situation where the collateral challenge as to the lawfulness of the directive was permissible and the Magistrate was entitled to ignore the directive in favour of the explicit terms of s 128 of the Constitution.
 One can sympathize with the Chief Magistrate who found himself confronted by what would have appeared to be a stalemate situation as a result of the Chief Justice’s directive. But that did not entitle him to exercise jurisdiction in conflict with the provisions of s 128 of the Constitution. One can also sympathize with the Chief Justice who no doubt sought to avoid his already overburdened court roll being further burdened by what he may have regarded, rightly or wrongly, as unnecessary litigation. But the Constitution is the supreme law of Lesotho and cannot be ignored, however inconvenient its provisions may in a particular case seem to be.
 It follows that the appeal must be upheld and the referral, made as long ago as 30 August 2005, dealt with by the High Court. Hopefully, the matter will be given preference on the court roll having regard to the inordinate delay that has occurred.
 As previously indicated, the High Court will be obliged to decide both the validity of the referral and, if necessary, the question referred. It is not for this Court to anticipate the decision of the High Court on either issue. However, having regard to some of the dicta of Peete J in his judgment a quo I do not think it would be out of place to refer to the wide meaning attributed in the past to the word “any”, viz a word which “in its natural and ordinary sense is – unless restricted by the context – an indefinite term which includes all of the things to which it relates”. See HAYNE & CO v KAFFRARIAN STEAM MILL CO LTD 1914 AD 363 at 371, quoted in NIGEL TOWN COUNCIL v ESCOM 1989 (1) SA 814 (A) at 817E. Similarly the word “proceedings” has been described as “a very wide term”. See ASSISTANT TAXING MASTER v SHANKER & GROSS 1953 (4) SA 281 (T) at 284 B-C. I say no more than this.
 As far as the recusal application is concerned it follows from the conclusion I have reached on the jurisdiction issue that it is no longer of relevance and need not be considered.
 Finally, it is appropriate to record this Court’s appreciation for the services rendered by Mr. Mda who has acted pro amico on behalf of the appellants throughout these long drawn-out proceedings.
 The following order is made:
The appeal is upheld.
The order of the court a quo is set aside and the following order is substituted in its stead.
“The special plea raised by the accused that this Court has no jurisdiction is upheld.”
JUSTICE OF APPEAL
JUSTICE OF APPEAL
JUSTICE OF APPEAL
For Appellants : Adv Z. Mda
For Respondent : Adv L.L. Thetsane KC