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Law Society of Lesotho v Thetsane and Others (C of A (CIV) 13 of 2010)
IN THE COURT OF APPEAL OF LESOTHO
C of A (CIV) 13 of 2010
In the matter between:
LAW SOCIETY OF LESOTHO ….......................Appellant
LEABA THETSANE ….........................1ST RESPONDENT
CHIEF JUSTICE ….............................2ND RESPONDENT
ATTORNEY-GENERAL …....................3RD RESPONDENT
Heard : 5 OCTOBER 2010
Delivered: 22 OCTOBER 2010
Conferment of the honour and dignity of King’s Counsel on the Director of Public Prosecutions by His Majesty the King in terms of s 7(1) of the Legal Practitioners Act 1983 – application to set aside on grounds of illegality dismissed by High Court – appeal to Court of Appeal dismissed with costs.
 The first respondent is the Director of Public Prosecutions of Lesotho, a position he has held since October 1999. He joined the office of the Directorate of Public Prosecutions as long ago as September 1985, and has not engaged in private practice as an advocate.
 On 17 July 2004 His Majesty the King, acting in terms of s 7(1) of the Legal Practitioners Act 1983 (“the Act”) and on the recommendation of the Chief Justice of Lesotho (who is cited as the second respondent), conferred the status of King’s Counsel on the first respondent. His Majesty did so notwithstanding representations to the contrary by the appellant. In December 2004 the appellant launched motion proceedings to have the King’s decision “reviewed and set aside”, or alternatively, to have the conferment of the status of King’s Counsel on the first respondent “declared null and void”. The application was dismissed with costs by the High Court, per Grosskopf AJ, on 21 May 2010. This is an appeal against that decision.
 Section 7 (1) of the Act reads:
“The King may, on the recommendation of the Chief Justice, confer the honour and dignity of King’s Counsel to advocates who have rendered distinguished services in the law practice in the courts of Lesotho”.
The section must be read with s 7(6) in terms of which the King is required to have regard to the age of the person in question, the length of his or her service “which must not be less than 15 years as a legal practitioner and such other qualifications, as the King, on the advice of the Chief Justice, may consider appropriate”.
 It will be observed that the decision to confer the status of “King’s Counsel” is that of the King. The input of the Chief Justice is limited to making recommendations. No provision is made for the Law Society to make recommendations.
 In its supporting papers the appellant advanced various grounds on which it alleged that the decision of the King was reviewable. These were rejected by the court a quo and in this Court counsel for the appellant confined their argument to the contention that the decision was void on the grounds of illegality by reason of the first respondent’s failure to satisfy the requirements of s 7(1) of the Act.
 These requirements or, expressed differently, the jurisdictional facts that must be present for the exercise of the power conferred upon the King in terms of the section, are the following:
There must be a recommendation by the Chief Justice;
The person to be honoured with the status of King’s Counsel must be an advocate of at least 15 years standing;
He or she must have “rendered distinguished services in the law practice in the courts of Lesotho”.
It is common cause that the Chief Justice recommended that the first respondent be so honoured. It is the second and third requirements that are in dispute.
 As to the second requirement, the appellant in its founding affidavit questioned whether the first respondent had ever been admitted as an advocate of the High Court. The latter in response alleged that he was admitted as an advocate on Monday 6 October 1986 by the present Chief Justice who was then an acting judge. The Chief Justice himself attested to the fact that he had admitted the first respondent as an advocate. In his answering affidavit the learned Chief Justice said:
“I have known the first respondent for many years, in fact throughout his professional career. I recall admitting him as an advocate of the High Court when I was an acting Judge. This would have been before my permanent appointment as a Judge in 1988. If the first respondent recalls the date as being 6 October 1986 I will accept this as being the date. The fact of the matter is that for the last 23 years or so the first respondent has been an advocate of the High Court”.
 The first respondent conceded that he did not have a certificate of admission but explained that this was because “to the best of [his] recollection” he was not furnished with one by the Registrar. He said that more recently he had approached the Registrar to obtain the records of the motion court at the time of his admission but was informed that such records no longer existed and were probably destroyed in 1998 when the civil registry of the old High Court was destroyed by fire. This was confirmed by the supporting affidavit of the present acting Registrar of the High Court.
 In its replying affidavit the appellant denied that the first respondent was admitted as an advocate on 6 October 1986 before Mr. Acting Justice Lehohla (as he then was) “or at all”. It justified its denial on three main grounds. First, it pointed out that the first respondent could not have been admitted on 6 October 1986 as that day was not only a public holiday but it fell within the period of the court recess. Second, it said that despite diligent search the first respondent’s admission application could not be found amongst the applications served on the appellant dating back as far as 1983 when the appellant came into existence; and third, it referred to the supporting affidavit of Ms. Lethunya, the acting Registrar during the period 1985 to 1987, who said she used to issue admission certificates without fail.
 In this Court counsel for the appellant criticized the court a quo for accepting the first respondent’s concession in argument that he must be mistaken about the date of his admission. It was contended that the learned judge a quo had permitted the first respondent to retract a positive assertion made under oath and had in effect permitted sworn evidence to be replaced by a submission. Accordingly, so it was argued, the evidence that the first respondent was admitted as an advocate could not be accepted, particularly in the light of the other factors referred to above.
 It is important to bear in mind that the true issue is whether the first respondent had been an advocate of at least 15 years standing when the status of King’s Counsel was conferred upon him. Once this is established it is of no consequence whether he was admitted on 6 October 1986 or on some other day. The fact that 6 October 1986 was a public holiday establishes no more than that he could not have been admitted on that day. It does not establish that he could not have been admitted on some other day, nor does it establish that the first respondent and the Chief Justice were lying when they confirmed under oath that the first respondent was in fact duly admitted as an advocate. It will be observed from the passage in the affidavit of the Chief Justice quoted above that the learned judge could not recall the date of the first respondent’s admission. What he could recall was that it was while he was still an acting judge and therefore sometime before 1989, ie at least some 20 years or more prior to the status of King’s Counsel being conferred on the first respondent. In these circumstances the inference that the first respondent was simply mistaken as to the date of his admission is overwhelming and the learned judge in the court a quo was fully entitled to draw that inference.
 In terms of s 41 of the Act both the Registrar and the appellant are required to keep a roll of legal practitioners admitted to practise. The Registrar’s records have been destroyed. The appellant says it cannot find the first respondent’s application “among the applications served on [it]”. When, however, the first respondent sought the appellant’s leave to inspect its records, this was refused for no good reason. Furthermore, as pointed out by the court a quo, it appears from the founding affidavit that the appellant did not have any record to show that advocate Mosito (on whom King’s Counsel status was conferred) was admitted to practise in terms of the Act, yet he was able to produce a certificate of admission. This strongly suggests that the appellant’s record-keeping is not what it should be.
 As far as the first respondent’s admission certificate is concerned, it will be recalled that the latter’s evidence was that to the best of his recollection (after a lapse of more than 20 years) he did not receive one. It may be that he did receive a certificate but mislaid it, or that it was issued and for some reason never found its way to the first respondent. Yet again, it is possible that, for a reason long since forgotten, the first respondent’s certificate was an exception to the rule and was never issued.
 The point is that none of the factors relied upon by the appellant to establish that the first respondent was not admitted as an advocate is conclusive. And against these circumstantial factors is the direct and unequivocal evidence under oath of the very judge who granted the order admitting the first respondent as an advocate. No possible reason was advanced why the judge, now the Chief Justice of Lesotho, would lie under oath in this connection. There is also the evidence of the first respondent himself. In these circumstances, I agree fully with the learned judge a quo that there were no reasonable grounds for doubting that the first respondent was admitted as an advocate and accordingly there was no genuine dispute of fact on this issue that would justify a referral to oral evidence.
 I turn now to the third requirement or necessary jurisdictional fact for the conferment of the status of King’s Counsel on the first respondent, namely, that he has “rendered distinguished services in the law practice in the courts of Lesotho” within the meaning of s 7(1) of the Act.
 The appellant contends that this requirement was not satisfied for essentially two reasons. The first is that the first respondent is not a “practising advocate”; the second is that he “has not rendered distinguished services” as such. I shall deal with each in turn.
As to the first, the appellant submits that by reason of the requirement in s 7(1) that the advocate must have rendered services “in the law practice in the courts of Lesotho” and the requirement in s 7(6) that he must have been a “legal practitioner” for a period of not less than 15 years, it follows that the person concerned must be a “practising advocate” in order to qualify. It is common cause that the first respondent was first a crown prosecutor in the office of the Directorate of Public Prosecutions and since 1999 has held the position of Director of Public Prosecutions. It is also not in dispute that since the first respondent’s elevation to the position of Director his appearances in court have been infrequent. The appellant submits that in these circumstances the first respondent is not a “practising advocate”.
 In support of this submission counsel relies on two cases. The first is Ex parte Masterson 1974 (4) SA 321 (R, AD) in which the court was required to construe a statutory provision in terms of which a candidate attorney would be required to serve a period of articles of only one year “if, before entering into articles he has been admitted as an advocate and has practised continuously as such in Rhodesia for a period of not less than five years”. The applicant had been a member of the staff of the Attorney-General and in the course of the preceding five years had spent four years prosecuting and one year advising government departments and ministries. The applicant was held not to have been an advocate within the meaning of the section. But the conclusion to which the Court came and the various dicta on which counsel in the present case sought to rely must be seen in the context of the section the court was required to construe. The rationale of the section was undoubtedly that a candidate attorney should be given some credit for the experience he has gained while practising as an advocate. What was in issue therefore was whether the applicant had gained the experience which was contemplated in the section, namely the experience gained by an advocate in private practice.
 The second case on which the appellant relies is Ex parte Hoal 1925 TPD 27. In that case the appellant sought to have his name removed from the roll of advocates and to be admitted as an attorney. Section 11 (e) of Proclamation 14 of 1902 precluded a person from being admitted as an attorney if he had practised as an advocate during the six months preceding his application for admission as an attorney. The applicant had during the preceding six months been employed in the office of the Attorney-General as a crown prosecutor both in criminal trials and in appeals. The court held that the applicant had not practised as an advocate within the meaning of the section. Curlewis JP observed that the section mirrored the rule that six months must elapse before a person who had previously practised as an attorney could be admitted as an advocate and that although the reason for the section did not seem as obvious as the rule in the latter case, it was nonetheless “very undesirable for a man to be practicing as an advocate one day and an attorney the next day”. It is quite clear that having regard to the context the court construed the section as referring only to an advocate in private practice.
 To revert to the present case, there is nothing in s7(1) itself or in its contextual setting that would justify the inference that the “advocates” contemplated in the section are to be limited to advocates in private practice. On the contrary, s7(2) provides that the First Law Officer of the Crown, who automatically receives the status of King’s Counsel, is to take precedence over all “King’s Crown Counsel”. Indeed, this much was conceded by the appellant in its replying affidavit. An advocate who appears for the Crown in criminal cases renders a service “in the law practice in the courts” no less than an advocate who appears for the accused person. Much is made in the papers of the first respondent’s limited appearances in court since his elevation to the position of Director of Public Prosecutions. But, as he points out, his duties extend beyond appearing in court. As his title suggests, all prosecutions are carried out under his direction and it is he who must decide in difficult or borderline cases whether to prosecute or not. In this regard, too, he renders a service in the law practice in the courts and I am unpersuaded that the “services” referred to in the section were intended to be limited to actual court appearances. It follows that in my view the appellant’s attack on the conferment of King’s Counsel status on the first respondent must on this ground likewise fail.
 I turn finally to the question whether the services rendered by the first respondent can be said to have been “distinguished”. It is necessary to observe that the exercise of the power by the King to confer the status of King’s Counsel is not stated in the section to be dependent on whether His Majesty is of the opinion that the person concerned has rendered distinguished services in the law practice in the courts of Lesotho. The section is so couched as to indicate that the King may exercise the power, on the recommendation of the Chief Justice, if the person concerned, objectively speaking, has as a matter of fact rendered such services. As to the distinction, see e.g. the comments of Corbett J, as he then was, in S.A. Defence and Aid Fund v Minister of Justice 1967 (1) SA 31 (C) at 34F – 35D), approved and applied by this Court in Pages Stores (Lesotho) Pty) Ltd v Lesotho Agricultural Development Bank 1993-1994 LLR and LB 492 at 496-497. Nonetheless, whether services of such a nature have been rendered or not is a question that necessarily involves a value judgment and accordingly the opinion of the Chief Justice on whose recommendation the power is exercised and the latter’s reasons for holding that opinion must be afforded due weight.
 In his answering affidavit the Chief Justice summarized his reasons for his recommendation as follows:
“1. As acting Judge from 1986 to 1988, permanent Judge from 1988 and as Chief Justice from September 2002 the first respondent appeared before me, and as well as the other Judges of the High Court, on numerous occasions. He did so first as Crown Counsel and in the last 10 years as the Director of Public Prosecutions.
2. This included factually complex and legally difficult cases, particularly in the years since he became DPP.
3. Over the years he developed into a very experienced advocate whose work was characterized by meticulous preparation and able presentation in Court.
4. At the same time he as DPP set a good example to the members of his staff and sought to develop them as lawyers by delegating matters to them in order to gain experience”.
It is apparent from his affidavit that the Chief Justice holds the first respondent in high esteem, as does, he said, the other judges of the High Court. He referred, in addition, to a passage in the judgment of this Court in Acres International Ltd v The Crown (2000–2004) 677 at 709 (para 67) in which the first respondent was commended for his courage and determination in launching a prosecution in respect of the criminal activities of developers and high ranking officials engaged in a major development. It is worth repeating the passage in question:
“In launching the prosecution in respect of the criminal activities of developers and the officials engaged on this project, the Lesotho authorities demonstrated courage, determination and competence. It has been an arduous task. However they set an example of good governance and have delivered a blow on behalf of all countries who face major challenges in strengthening their infrastructure through project activity. This court particularly commends the Director of Public Prosecutions and his team for their dedicated and resolute efforts.”
 In its replying affidavit the appellant did not dispute that the first respondent had personally appeared over the years against eminent counsel but it repeated the assertion made in its founding affidavit that since the first respondent had become the Director of Public Prosecutions his appearances in court had become “minuscule” and non-existent in so far as high profile matters were concerned. The first respondent denied that his appearances were “minuscule” and said they were extensive. He did concede, however, that in a number of high profile and complex prosecutions such as those relating to the Highlands Water Project he had instructed outside counsel. He explained that he had been advised not to appear personally in court so frequently as to compromise his other duties and in particular the administration of his office.
 The appellant also challenged the Chief Justice’s statement that the first respondent had appeared before him not only prior to but also subsequent to his becoming Chief Justice, as the latter had ceased to hear cases on becoming Chief Justice. It is unnecessary to become embroiled in this unseemly debate. It is enough to observe that the legal community in Lesotho is relatively small and that the Chief Justice as head of the High Court would be aware of the prosecutions being conducted in that Court and the views of the puisne judges regarding both the competence of the first respondent and the frequency of his appearances. It is not in dispute that the first respondent would have appeared regularly before the Chief Justice prior to the latter’s elevation to the position of Chief Justice and the former’s to the position of Director of Public Prosecutions.
 The appellant has not sought to challenge the professional competence of the first respondent, whether as a Crown prosecutor or a Director of Public Prosecutions. The complaint, if I may call it that, is the infrequency of the first respondent’s appearances in court and the lack of complexity of the cases in which he does appear. As to the latter, opinions no doubt differ; as to the former, it is understandable, given the first respondent’s other duties, that his appearances in court should be infrequent. In this regard his position is no different from that of the Director of Public Prosecutions in South Africa. The point is that the first respondent has had a successful career as a Crown prosecutor culminating in his appointment as Director of Public Prosecutions, a position he has held with competence for some 10 years. In these circumstances I am unpersuaded that the appellant has shown on the papers that the first respondent is unworthy of the status of King’s Counsel and has not rendered distinguished services in the practice of law in the courts of Lesotho. Nor am I persuaded that given the value-based nature of the inquiry there are reasonable grounds for referring the matter for oral evidence.
 Counsel for the appellant submitted that in the event of the appeal being dismissed no order of costs should be made against the appellant as it was doing no more than performing its function in terms of s4 of the Law Society Act 1983 by resisting the conferment of King’s Counsel status on a person considered undeserving of that honour. I cannot agree. The appellant was invited by the Chief Justice to comment on his proposal to recommend to His Majesty the King that King’s Counsel status be conferred on three advocates, one of whom was the first respondent. In response, the appellant opposed the conferment of King’s Counsel status on the first respondent on the grounds that he was not a practising advocate and that he had not rendered distinguished services in the courts of Lesotho. The appellant subsequently wrote to the private secretary to the King in which it was said that the appellant had no record of the first respondent having been admitted as an advocate. Nonetheless, having received the views of the appellant and the recommendation of the Chief Justice, the King duly conferred the status of King’s Counsel on the first respondent. In my view, the appellant ought at that stage to have accepted the decision of the King. There was no justification for taking the matter further. But not only did the appellant do so, it persisted in its opposition to the King’s decision in the face of the Chief Justice’s answering affidavit.
 In these circumstances I can see no reason for disturbing the costs order made by the court a quo. Nor is there any reason why the appellant should not be ordered to pay the costs of appeal. Given the involvement of both the King and the Chief Justice, and the importance of the matter to the first respondent, I agree that the latter was entitled to employ the services of two counsel.
 The appeal is accordingly dismissed with costs, such costs to include the costs of two counsel.
D G SCOTT
JUSTICE OF APPEAL
I AGREE: ________________________
J W SMALBERGER
JUSTICE OF APPEAL
I AGREE: _______________________
L S MELUNSKY
JUSTICE OF APPEAL
For Appellant : Adv Q. Letsika with Adv L.A. Molati
For the First Respondent: Adv G.H. Penzhorn SC with
Adv R.A. Suhr