IN THE HIGH COURT OF LESOTHO
In the matter between:
LEFU NTOBO Accused 1
JIAN ZIN Accused 3
Delivered by the Honourable Mr. Justice M.M. Ramodibedi on 26th day of September 2001
This is an application for rescission of the order of this Court made on the 7th day of September 2001 in which it ordered that the case must start dc novo before another judge. At the outset I should point out that my recusal in the event of the case starting de novo was predicated upon the fact that it would be unfair on the parties for me to sit in the matter afresh when I had already formed an opinion one way or the other at that stage.
The reason that necessitated the above mentioned order is that the
sole assessor in the case sadly passed away in the first week of September 2001 (may his soul rest in peace) at the stage when all that remained in the case was addresses by counsel on both sides. The court felt then that it was no longer properly constituted to complete the case. It must be noted, however, that this was an impromptu decision made in the absence of counsel. As a general practice an order for recusal should only be made after all the parties involved have been given an opportunity to express their views on the matter.
I should add for completeness at this stage that the application for rescission is fully supported by the Crown. Counsel on both sides have submitted useful heads of argument for which the court is highly appreciative.
It requires to be mentioned further that the application is made in terms of Rule 45 (1) (a) and (3) of the High Court Rules 1980 which provides as follows:
"45. (1) The court may, in addition to any other powers it may have mero motu or upon the application of any party affected, rescind or vary -
(a) an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby;
(3) The court shall not make any order rescinding or varying any order or judgment unless satisfied that all parties whose interests may be affected have notice of the order proposed."
When this matter came before me for hearing yesterday the 25th September 2001 I inquired from counsel on both sides whether the court was not functus officio in the matter but they were unanimous that it was not, in the circumstances of the case, more especially as the order was made in their absence and the recusal itself was dependent on the case starting dc nova. I agree with this submission. Afterall the order in question cannot be termed a pronouncement of a judgment which is sententia stricti juris. More importantly I consider that Rule 45 of the High Court Rules adequately covers the point. That this Rule applies to
civil cases as well as Criminal cases is borne out by the fact that no
distinction is made between the two types of cases in the text of the Rule itself. Moreover it is also borne out by the case of Molapo v DPP and Another LLR & LB 1999 - 2000 9 in which the Court of Appeal per Steyn P not only recognised the applicability of the Rule but also went further to emphasise the fact that subsection (4) of the rule retains the common law right of the court to rescind its own judgment. That subsection reads as follows:-
"Nothing in this Rule shall affect the rights of the Court to rescind any judgment on any ground on which a judgment may be rescinded at common law."
I deal then with the question of an assessor in this country. I should state at the outset that there is, as far as I am aware, no case directly in point in this country namely where the sole assessor as in the instant case dies during the course of the trial. For reasons which will become clear in the course of this judgment the matter is not covered by legislation and this, I venture to say, is by design.
Section 9 of the High Court Act 1978 provides as follows:-
"9. (1) The High Court may call to its assistance at any civil or criminal trial or appeal not more than four assessors, whose duty it shall be to give either in open court or otherwise, such assistance and advice as the judge may require, but the decision shall be vested exclusively in the judge.
(2) The agreement or disagreement of the assessor or assessors with the decision of the judge shall be noted on the record."
It is useful to bear in mind the interpretation of an identical section by the Court of Appeal of Lesotho per Schreiner JA (as he then was) namely Section 9 Act No.4 of 1967 in Thabo Hlapane v Rex C of A (CRI)No. 35 of 1971 (unreported). The learned judge of appeal said the following at page 3 thereof:-
"In this connection one has always to remind oneself of the fact that the assessors do not form part of the court in the making of decisions. When the judge calls in assessors (under Section 9 of Act 4 of 1967) their role, when he asks them for their advice, remains that of helpers and advisers. Their role is
not unimportant, but the function of deciding is vested exclusively in the judge, although he is directed by the section to note their agreement or disagreement with the decision on the record."
In Lethula Leluma and Another v Rex LLR & LB 1997-1998 468 the Court of Appeal once more expressed itself (per Shearer JA) on the point as follows at p473:-
"The absence, temporary or otherwise of one assessor may not, by itself, in Lesotho be fatal to the proceedings; particularly where the Judge seeks advice in regard to a limited issue, where an assessor might well be excused once that issue has been dealt with in the evidence, and advice given. But where assessors are summoned for general advice, wise advice may well persuade the trial Judge that his prima facie view on any one of a number of matters is not incontrovertible. And under those circumstances if there is a general custom, as we were informed from the Bar, that assessors drift in and out or are excused during the course of the proceedings, such custom prima facie conflicts with the High Court Act and deprives the accused of a right accorded him by that Act and the decision of the Judge to summon assessors; which surely would not be motivated by a desire merely to afford pocket-money for a friend or two."
In contrast the position of assessors in South Africa is totally different from that which obtains in Lesotho. In terms of the proviso to Section 145 of the Criminal Procedure and Evidence Act 1977 of that country assessors are actually members of the court and can overrule the presiding judge. See S v Malindi and Others 1990 (1) SA 962 (A) That section requires quotation in full. It reads:-
"145(1) (a) Except as provided in section 148, an
accused arraigned before a superior court shall be tried by a judge of that court sitting with or without assessors in accordance with the provisions set out hereunder.
(b) An assessor for the purposes of this section means a person who, in the opinion of the judge who presides at a trial, has experience in the administration of justice or skill in any matter which may be considered at the trial.
(2) Where an attorney-general arraigns an accused before a superior court -
for trial and the accused pleads not
for sentence, or for trial and the accused
pleads guilty, and a plea of not guilty is
entered at the direction of the presiding
the presiding judge may summon not more than two assessors to assist him at the trial: Provided that where the offence in respect of which the accused is on trial is an offence for which the sentence of death is a competent sentence, the presiding judge shall, if he is of the opinion that, in the event of a conviction and having regard to the circumstances of the case, the sentence of death may be imposed, summon two assessors to his assistance." (emphasis added).
The diametrical difference between our legislation and that of South Africa renders it inadvisable in my judgment therefore to follow or have regard to cases emanating from that jurisdiction save to note that they emphasise the importance of the seriousness of a case in which it is sought to engage an assessor as in casu. One must of course bear in mind that legislation relating to assessors in South Africa followed a history of
jury trials in that country while in Lesotho we have never had such a
system. In this country the presiding judge has always been the trier of both fact and law. Assessors are accordingly not members of the Court here. This in my view explains why the Legislature in its own wisdom deemed it unnecessary to provide for a situation where an assessor dies or becomes incapacitated during the course of a trial. Having said that, however I must confess to having resisted the temptation of being influenced by such cases as S v Malinga 1987 (3) SA 490 (A) at 498 D-J per Kumleben AJA (as he then was) and S v Gqeba and Others 1989 (3) SA 712 (A) in which Grosskopf AJA (as he then was) agreed with the majority decision (M.T. Steyn JA dissenting) that where one of the two assessors had been discharged for ''compassionate" reasons the court was no longer properly constituted. Significantly both learned judges are now judges of our Court of Appeal. It must be noted that in both cases the Appellate Division emphasised the seriousness of the case hence the desirability of employing assessors in compliance with the requirement of the proviso which in turn reflected the intention of the Legislature. It requires to be emphasised that the court was there dealing with a different statute from ours.
Indeed it is true to say that, unlike in Lesotho, the position where
an assessor dies during the course of a trial in South Africa is clearly regulated by statute in terms of Section 147 of the Criminal Procedure and Evidence Act 1977 which reads as follows:-
"(1) If an assessor dies or, in the opinion of the presiding judge, becomes unable to act as assessor at any time during a trial, the presiding judge may direct -
that the trial proceed before the remaining
member or members of the court; or
that the trial start de novo, and for that
purpose summon an assessor in the place
of the assessor who has died or has
become unable to act as assessor."
In its wisdom the Legislature in Lesotho has left the position of assessors in any trial including those who die before the matter is finalised in the discretion of the presiding judge. That must be so in terms of Section 9 of the High Court Act 1978 and again it must be stressed that this is regardless of whether or not the case is a serious one in which the death penalty might be imposed. More importantly the Legislature in its wisdom has in this country decreed that the presiding judge alone shall be
vested exclusively with the right to make the decision in the case whether or not there are assessors.
It is no doubt for the aforegoing reasons that the Court of Appeal in Lethula Leluma v Rex (supra) was constrained to express itself as aforesaid namely that "the absence, temporary or otherwise of one assessor may not, by itself, in Lesotho be fatal to the proceedings." It should be noted for that matter that even in cases where the presiding judge deems it necessary it is permissible under sub-section 9 (2) of the High Court Act 1978 to make use of only one assessor. As will be recalled that subsection provides that "the agreement or disagreement of the assessor or assessors with the decision of the judge shall be noted on the record." This is consistent with subsection 9(1) which provides that the presiding judge may call not more than four assessors. Read as a whole this section simply means that the presiding judge is empowered and does have a judicial discretion to sit either alone, or with not more than four assessors or still with just one assessor as he deems fit. Clearly therefore each case must depend on its own circumstances.
In the exercise of my judicial discretion in terms of Section 9 of the
High Court Act 1978 and to the extent that the instant case is a serious one in which the death sentence might be imposed it is necessary to record that I have received substantial assistance from the assessor in question. This was made possible by the fact that his sad demise only occurred after all the evidence had been led and, I might add, after heads of argument by Mr. Nel for the Crown and Mr. Sello for Al had already been filed. 1 already have the benefit of the assessor's views regarding the guilt or innocence of the accused. He fully agreed with the court. I consider therefore that the concerns raised in such cases as S v Malinga (supra) and S v Gqeba (supra) either do not arise or have been fully allayed.
Furthermore it is common cause between the parties in this matter that the prejudice in the event of the trial starting de novo will be immense not only for the Crown but also for the accused who stand to suffer further incarceration pending the flnalisation of the trial. They have been in custody since 1999 which already translates to a shocking period of more than (2) years. There is also a real possibility, as I am informed, that
witnesses may have become unavailable and that it will generally be
difficult to marshal! all the evidence again. I have taken all these factors into account in deciding the matter as well as the substantial expense in running a trial of this nature. The inconvenience of all the parties including the court has merited my attention in the matter.
On mature reflection and all things being considered I have come to the conclusion that there is right in granting the application.
Accordingly the judgment of this Court ordering a trial de nova and recusing itself from the matter is hereby rescinded and set aside.
26th September 2001
For the Crown : Adv. J. Nel
For Accused No.1 : Mr. K. Sello
For Accused No.2 : Mr. B. Sooknanan