Sole v Penzhorn and Others (C of A (CIV) 21/2000 )

Media Neutral Citation: 
[2000] LSHC 152
Judgment Date: 
13 October, 2000

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C of A (CIV) 21/2000

IN THE LESOTHO COURT OF APPEAL


In the matter between:


MASUPHA EPHRAIM SOLE APPELLANT

and

GUIDO H PENZHORN 1st RESPONDENT

HJALMER H T WOKER 2nd RESPONDENT

JOSEPH TEBOHO MOILOA MOILOA 3rd RESPONDENT

ATTORNEY GENERAL 4™ RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS 5th RESPONDENT

MARGARET BAM 6™ RESPONDENT


CORAM: J.H. Steyn, P

L.v. d. Heever,

JAME. Kumleben, JA


JUDGMENT


STEYN. P


On the 10th of July 2000 appellant initiated proceedings against the above respondents. He did so by way of a notice of motion in which he


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inter alia claimed the following relief; why


"(b) First, second and third respondent should not be interdicted from taking any further part in the preparation for and/ or presentation at the trial of the charges preferred against the applicant and accused in the Criminal trial No. 111/99, on behalf of the Crown, which Criminal trial is presently pending before this Honourable Court."


On the 11th of July the High Court (Peete J) in the absence of respondents granted an "interim order of court" being a rule nisi calling upon respondents to show cause why the relief claimed in paragraph (b) cited above should not be granted. The return day of the rule was the 31st of July 2000.


Appellant based his claim for the relief referred to above on a number of grounds which he contended disqualified first, second and third respondents from being prosecutors in his criminal trial.


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Appellant summarises these grounds in his application as follows:


"(a) the first, second and third respondents cannot be expected to be objective and impartial when they are contractually bound to serve the interests of the complainant, LHDA;


  1. in view of their connection with the civil case involving the LHDA and myself they cannot be objective, impartial and detached as prosecutors should be;


  1. they are investigators in the case and as such should not be prosecutors in the same case;


  1. some charges I am facing relate to what is alleged to have happened in CIV/T/598/95 in which they represented the complainant, LHDA;


  1. they have made statements which cannot be reconciled with the objective and impartial approach which they should adopt in prosecuting


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the case;


  1. they have identified, associated themselves and collaborated with media people who have tried and found me guilty in the media; and


  1. the first, second and third respondents cannot pass the basic test of appearances when it comes to their impartiality, objectivity and detachment as prosecutors in my case."


At the time appellant launched these proceedings he had been indicted and was due to stand trial together with other accused on 16 counts of bribery. He was also charged with two counts of fraud and one count of perjury. These proceedings were due to commence in the High Court before Cullinan AJ on the 1st of August 2000.


In a document filed in those proceedings appellant gave notice that he intended to "object to except to and to quash the indictment". In doing so appellant stated that he relied on the provisions of sections 152 (1),


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153(1) and 162 of the Criminal Procedure and Evidence Act 1981 ("The Act"). In this notice appellant advanced the following contention:


"The accused further contends that the prosecutors are not objective, impartial and detached as prosecutors are expected to be and that the handling of this trial by prosecutors who are perceived to be partial, and biased (as they represented the interests of the complaint (sic) herein in other matters) will deprive him of his fundamental right to a fair trial as envisaged in Section 12 of the Constitution of Lesotho 1993. If the prosecutors do not voluntarily withdrawn (sic) from the trial of the accused the accused intends to apply to this Honourable Court for an order interdicting and restraining them from further taking part as prosecutors in the criminal matter of the accused."


Despite having given notice of this challenge in the criminal court in which appellant was indicted, he launched the above application via the civil process referred to above. On the return day of the rule nisi the Court (Peete J) dismissed the application. In doing so he upheld the plea of lis pendens raised by respondents. He did so for the reason that the relief


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sought in para (b) was being sought in the pending criminal proceedings by virtue of the notice referred to above and that the matter awaited adjudication in that forum.


It seemed clear to us that, quite apart from the question as to the validity of the plea in limine, the proper forum for the adjudication of appellant's challenge set out in his notice to object to, except to and quash the indictment, was the Court that was about to try him. With this proposition his counsel agreed. The reason why he launched his civil application, so he submitted, was because he was raising a constitutional issue. The issue was a constitutional one because appellant's right to a fair trial was in jeopardy.


I have difficulty in understanding why for this reason it was necessary to launch the civil application in casu. If an accused could delay the commencement of a criminal trial by launching civil proceedings


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alleging that his right to a fair trial in a pending criminal trial was jeopardised because of facts alleged by him, criminal trials would suffer unwarrented disruption and delays. In this context it must be borne in mind that charges may be withdrawn or at the start of the criminal trial when the appellant is called upon to plead other objections may be raised in terms of section 162 of the Act. To the extent that they are sustained it could result in the trial not proceeding. It would therefore be inappropriate to embark prematurely upon an enquiry in a civil suit.


The objection taken by appellant raises both factual and legal issues. (See in this regard S. v. Mushimba en Andere 1977 (2) S.A. 829(A); Sanderson v. Attorney-General. Eastern Cape 1998 (2) SA 38 CC and Harksen v. Attorney-General. Cape 1999(1) SA 718(C) at 736-737). These issues are eminently suited for evaluation and determination in the criminal Court where appellant stands indicted. This was the Court in which such application was correctly launched by him. His claim for the


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relief sought by way of civil proceedings was clearly misconceived and was rightly dismissed.


On the issue of costs respondents requested that the costs of two counsel should be allowed. It is our view that the appeal was without merit and did not warrant the employment of two counsel. It follows that the appeal is dismissed with costs.


J.H. Steyn

PRESIDENT


I agree:


L. v d Heever

JUDGE OF APPEAL


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I agree:


M. Kumleben

JUDGE OF APPEAL


Delivered on this 13th day of October 2000