Law Society of Lesotho v Ramodibedi and Others (CONSTITUTIONAL CASE NO. 1/2003 )

Media Neutral Citation: 
[2003] LSHC 28
Judgment Date: 
7 March, 2003

Downloads

CONSTITUTIONAL CASE NO. 1/2003

IN THE HIGH COURT OF LESOTHO


In the matter between:

THE LAW SOCIETY OF LESOTHO APPLICANT

and

MR JUSTICE MICHAEL RAMODIBEDI 1ST RESPONDENT

THE CHIEF JUSTICE MR JUSTICE

LEBOHANG MAHAPELA LEHOHLA 2nd RESPONDENT

THE ATTORNEY GENERAL 3rd RESPONDENT


Coram: Guni J.

Peete J.

Nomngcongo A.J.


JUDGMENT


ON A RECUSAL APPLICATION

Delivered on the 7th Day of March, 2003.


NOMNGCONGO A.J.


This matter started before us styled "NOTICE OF CONSTITUTIONAL MOTION IN TERMS OF RULE 12". This is presumably a reference to Rule 12 of the Constitutional Litigation Rules. The Rule reads:


(1) In urgent applications, the presiding judge may


  1. dispense with the forms and service provided for in these rules and


  1. give directions for the matter to be dealt with at such time and such in such manner and in accordance with such procedure, which shall as far as is practicable be in accordance with these rules.


(2) An application made under sub-rule (1) shall be on notice of motion accompanied by an affidavit stating explicitly the circumstances which justify a departure from the ordinary procedures {My underlining)


However, it is important to note that the Constitutional Litigation Rules have been made by The Chief Justice "In exercise of the powers conferred on [him] by sections 22 (6) and 69 (5) of the Constitution. " These sections deal with, in the first place the "protection of fundamental Human Rights and freedoms " and, in the second the "decision of questions as to membership of Parliament. " It immediately becomes obvious then, that the provisions of the Constitutional Litigation Rules have been incorrectly invoked in


2


instituting these proceeding in which relief is sought in the main application

in the following terms.

"A Rule Nisi be issued calling upon 1st, 2nd and 3rd respondents to show cause, if any why an order in the following terms shall not be made:-


  1. That the Rules relating to form and service provided for in the Constitutional Litigation Rules be dispensed with on account of urgency of this matter.


  1. That the matter be dealt within and finalized not later than 17th February, 2003.


  1. Declaring the continued performance of functions of a puisne judge in the High Court (except for part heard matters) by the Respondent after his appointment as a substantive Court of Appeal Judge on the 13th November, 2002 in breach of sections 123 (4) and 118 (!) (a) of the Constitution of Lesotho read together with the Court of Appeal Act No.8 of 1978


  1. That first Respondent be restrained and interdicted from performing any judicial functions of a puisne judge in the High Court


3


  1. That 3rd Respondent be directed to pay costs of this application.


  1. That applicant be granted further and/or alternative relief. "


This Court clearly cannot decide on the relief sought sitting either as a Constitutional Court as contemplated by section 22(6) of the Constitution or as a Court of disputed returns as contemplated by section 69(5) of the Constitution in which case entirely different procedures would have been applicable.


Having thus approached Court, on the 4 of February the Full Bench of this Court consisting of Guni J., Peete J. and myself convened to dispose of the matter. Mr Mohau for the applicant then stood up and intimated that his purpose for the day was to seek directions as to how the matter could be disposed of as expeditiously as possible. As he addressed Court on this issue Peete J. intervened and asked Mr Mohau whether High Court Judges could sit where one or two of their own were respondents in view of the close-knit 'nature of their relationship. Thereupon Mr Mohau consulted briefly with Mr Mda, President of the Law Society and the only deponent to applicant's affidavit. After this exchange Mr. Mohau indicated that they


4


were in fact going to make an application for the recusal of the entire Bench and ask for the appointment of judges from outside this court's jurisdiction. Asked how this could be achieved in the short period contemplated and the related expense, Mr Mohau said that was a matter for the Judicial Service Commission and that this had been done before. Mr Viljoen opposed this application on the grounds that the relief sought was merely a matter of the interpretation of the Constitution and had nothing to do with the relationship among judges.

At the end of the day the Court ruled that the matter was not properly before us, made as it was from the bar and set the matter down for hearing on the 13th February. On the 7th February a formal application was launched in the following terms:


KINDLY TAKE NOTICE THAT

Application will be made on behalf of

THE LAW SOCIETY OF LESOTHO (hereinafter)

Referred to as Applicant) to the above Honourable Court on the 11th

day of February, 2003 at 9.00a.m or so soon thereafter as the matter

may conveniently be heard for an order in the following terms:


5


1. A Rule Nisi be issued calling upon 1st, 2nd and 3rd Respondents to show cause, if any, why an order in the following terms shall not be made:-


  1. That the Rules relating to forms and service provided for in the constitutional litigation rules be dispensed with on account of urgency of this matter.


  1. The relief sought in terms of prayer (c) below be determined on the 13th February, 2003 prior to the determination of the main application in CC 1/2003.


  1. That the Honourable Judges constituting the Full Bench of the High Court consisting of Mrs Justice Guni, Mr Justice Peete and Mr Justice (sic) Nomngcongo (and/or any other permanent member of the High Court Bench) should recuse themselves from adjudicating on the main application in CC 1/2003.


  1. That 3rd Respondent be directed to pay costs of this application only in the event of contesting same.


  1. That Applicant be granted further and/or alternative relief.


6


By agreement of both Counsel prayer 1(b) was granted by me sitting in chambers on the 11th February, 2003. That is how we became seized with the matter of our recusal from the main application. Flawed as that application was we consider that, that will be decided when its fate is finally determined. We will deal now only with the question of recusal.


As the history of this case shows the subject of recusal was first broached by my brother Peete J. when the matter first came before us. His initial reaction was that we are too close-knit a family to sit in judgment over each other. He and I have since discussed the matter. Such initial reaction has gone on unabated. With respect I share the learned judge's discomfort in presiding over this case. This is a matter for the conscience of the judge concerned and not as SCHUTZ AJA cautioned a "possibly convenient course of retiring from difficult litigation merely because one of the litigants asked him to do so" (Lesotho Electricity Corporation v Forrester 1979 (1) LLR 440 at 454 & 455). In fact none of us consider this case as presenting any complicated legal issues. Our attitude is thus rooted in legal principle as we will endeavour to show.


7


This is a case where the applicant contends for disqualification of judges on the basis of apparent as distinct from actual bias for the following reasons set out in their founding affidavit:-


  1. The close relationship of the 1st and 2nd respondents fostered by the fact that they are colleagues, although it is pointed out that the 1st respondent having been recently appointed as judge of Appeal permanently he still exercises the functions of a puisne judge.


  1. The 2nd Respondent has previously expressed an opinion contrary to the applicant's view and therefore the rest of his colleagues would be loath to contradict him.


  1. That the judgment in which that opinion was expressed was delivered by Guni J.— that she is ipso facto disqualified.


The 3rd Respondent denies that any reasonable person would apprehend bias on the grounds contended for by the applicant. Nevertheless and quite significantly in his heads of argument it is contended on behalf of the respondent as follows:- "The essence of the application for recusal in this case is that no judge of the High Court can sit in judgment on one of his colleagues with whom in the nature of things, he/ or she has or will be seen to have a close relationship. Whether or not the other judges.... are actually


8


by the judge the applicant would, if so advised move the application in

open court. "


I wish to respectfully endorse this approach.


It is not difficult to imagine how much time and costs would have been saved in the present case if we would have been, so informally approached. In all probability we would have recused ourselves in Chambers and there would never have been need for the arduous labours that followed the procedure adopted by the applicant in this case.


The decision Peete J. and I have arrived at is as follows:


  1. Peete J. and I recuse ourselves from adjudicating in CC 1/03. We do not decide for any other member of the High Court Bench.


  1. As a mark of disapproval of the way the applicant conducted this application, although successful the applicant is deprived of his costs. Each party therefore will bear his own costs.


T. NOMNCGONGO

ACTING JUDGE

7th March, 2003


For Applicant : Mr. Mohau

For Respondents : Mr. Viljoen SC


19


be determined. It must have been patently clear that no one could secure the services of a judge or judges outside of this bench within that limited period. In my view when Mr Justice Peete suggested recusal the applicant conveniently rode on the bandwagon and that probabilities do not favour that he held this view all along. This conduct must sound in costs as must the way the main application which gave birth to the present one, was also brought. I must however leave the latter part to the court that will determine that application.


I feel it necessary to say something about the way recusal applications ought to be brought to court. It seems it is becoming common practice to spring these applications for the first time in open court upon unsuspecting judicial officers. I regard the practice as indiscreet, unbefitting and unnecessarily discomforting. The proper procedure is as laid down in President of the RSA v South African Rugby football Union 1999(4) SA at 177(H):-


"The usual procedure is applications for recusal is that Counsel for the applicant seeks a meeting in Chambers with the Judge or Judges [concerned] in the presence of her or his opponent. The grounds of recusal are put to the judge who would be given an opportunity, if sought, to respond to them. In the event of the recusal being refused


18


In the result Peete J. and I consider ourselves bound to recuse ourselves from this case.


It remains to deal with the manner in which this case was brought before us which will in turn have an impact on the costs. As indicated earlier, the matter of our recusal was first raised when Peete J. interjected while Mr Mohau was asking for directions in the conduct of the case. There was no indication in the papers that the question would be raised at the hearing. Mr Mohau contends that he had instructions to raise the question but was pre-empted by Peete J's interjection and that it was in any case expected that a judge or judges from outside this jurisdiction would be appointed for this case. With respect the conduct of this case points in a different direction. If it were true Mr Mohau would not be seeking directions from a Court which he did not expect to be there in the first place. His first reaction would have been one of surprise at it and his asking for its immediately recusal. Further when Peete J. interjected to raise the question his reaction was not spontaneous, as would be expected of a person who had this in mind all along. No. He had to consult first with Mr Mda before coming up with the purported prior instruction. Worse still the applicant had in his prayers put forward a specific date, being the 17th of February by which the case had to


17


as one of brother against brother or worse even one of rebellion against senior colleagues. In either situation in my view the ordinary reasonable man would not perceive this as justice untainted by bias either for or against the Respondent judge in this case.


Finally it has been argued that our task is merely to interpret the Constitution, in vacuo as it were and that this has nothing to do with the integrity or otherwise of Ramodibedi J.A.. With the latter we are in entire agreement, we are not however in agreement with the former. In interpreting the Constitution we would be bound to touch upon the status of Ramodibedi J.A. in Judiciary of this Country and as such it is our view that it has everything to do with him as a person and the two cannot be divorced. We agree with Mr Viljoen therefore, as I quoted him earlier that "a judge cannot sit in judgment of a colleague in whose division he himself holds office in any matter in which such colleague is personally, a party or in which such colleague's personal interests, such as character or integrity are concerned. " We only say he might have added to the list "status" which is just as personal as any of the factors mentioned.


16


provided that he may not sit on appeal in matters which he decided as High Court Judge.


4. In terms of Section 123(2) (c) of the Constitution Judges of the High Court are ex officio judges of the Court of Appeal. It would therefore be a strange, and indeed unwelcome anomally, in the Court's view, that while as a High Court Judge Mr Justice Ramodibedi was entitled to perform the dual functions of the High Court he would nevertheless cease to be so entitled simply because he was made permanent judge of the Court of Appeal This in the Court's view would simply defy logic and such absurdity cannot have been in the contemplation of the legislature. "


These are the decisive and uncompromising views expressed by our Sister Guni J. and shared by Ramodibedi J.A. on the very issue that we are called upon to decide to-day.

If our views were to coincide with the views of Ramodibedi J.A. upon whom we are sitting in judgment, would not an ordinary reasonable person be entitled to say "They would, wouldn't they. " If we decided the contrary as we might well do, wouldn't the same ordinary person perceive the situation



15

because he hails from the same district as a litigant. Examples are inexhaustible. I am therefore in respectful agreement with Howie J.A. in S. v Roberts 1999 (4) S.A. 915 that:-


"The suspicion is one which the reasonable person referred to would, not might, have, " at p.925C.


In applying the law as stated above, certain facts here are considered as established. We are a relatively small bench with a close-knit relationship. This is not only real but also paraded for all to see at formal openings of the High Court. In this case we are called upon to determine the status of our colleague Ramodibedi J.A. He is cited in the proceedings as well as no less than the Chief Justice, himself. In the case of Masupha Ephraim Sole v Brendan Peter Cullinan N.O & ORS Ramodibedi J.A. concurred in a judgment delivered by our Sister Guni J. in which was sought the recusal of Ramodibedi J.A. on the same grounds as those advanced by the applicant in the present case, in rejecting that application Guni J. observed:

"4. There is no provision in the Constitution or in any other law that prohibits Mr. Justice Ramodibedi from performing dual functions as a Court of Appeal Judge and as a High Court Judge


14


"It is important nevertheless to remember that the notion of the reasonable man cannot vary according to individual idiosyncrancies or the superstitions or the intelligence of particular litigants. "


Taking our particular case as an example of a litigant who raises an objection, we would have to consider applicant as a body consisting of men and women learned in law who know the judges' Oath of office and therefore would know that we would not in fact be biased, despite all appearances to the contrary. They would in that case be precluded from asking us to recuse ourselves. That would clearly be going against the judicial grain.


I will not attempt the sterile and passe exercise of defining a reasonable person; suffice it to say that it is generally accepted that judges know one when they see one and I daresay all reasonable recognize not only each other but also what is reasonable in the circumstances. This brings me to the flip side of the double requirement of reasonableness test that the apprehension itself must be reasonable in the circumstances. A fanciful and remote possibility that a judge might be biased cannot be held by reasonable men. A judge's impartiality cannot be called into question, for instance merely


13


2. The apprehension itself must in the circumstances be reasonable." (Sapire Case Supra and the authorities therein referred to)


Many of these authorities seem to place emphasis on the reasonable litigant rather than just an ordinary reasonable person Schutz A.J.A says so in the Forresters Case.(supra) and in BTR Industries South Africa (Pty) Limited v Metal and Allied Workers Union 1992 (3) SA 673 A at 695 C-E it is said:


"The hypothetical reasonable man is to be envisaged in the circumstances of the litigant who raises the objection to the tribunal hearing the case."


I consider this emphasis on the objecting litigant as dangerous because it tends to shift the test from true objectivity towards subjectivity. The test should not be directed at ordinary litigants but at the general body of reasonable persons, because otherwise the test would be bound to be a subjective one. I think with respect the learned judge in this case immediately recognized the danger when he immediately proceeded to say in spite of himself:-


12


" ....if a judge does or says something which would justifiably lead a reasonable litigant to believe that he will not receive an unbiased hearing the judge should recuse himself, whether he is biased or not justice must be seen to be done. " at p. 455.


The law is thus settled that the appearance that justice is perceived to be done is almost as important as that it is in fact done. It only remains to deal with whose perception we are to rely on and which perception should be considered justifiable.

The test here has throughout been held to be an objective one. In the above quotation Schutz A.J.A for instance says "Something which would justifiably lead a reasonable litigant to believe that he will not receive a fair hearing. " There have been many formulations of this test but there seems to be one that carries favour to-day and with which I am in respectful agreement: the so called double requirement of reasonableness test. It is formulated thus


" 1. The apprehension of bias must be held by a reasonable, objective and informed person and


11


This statement was quoted with approval in the Swaziland case of Minister of Justice and Constitutional Affairs v Stanley Wilfred Sapire: In re Exparte Stanley Wilfred Sapire CIV APPEAL No.49/2001 (apparently unreported and referred to us by Counsel for the Applicant: per Leon J.P. - Steyn J.A. Tebbut J.A, Beck J.A and Zietsman J.A concurring). It was further stated in Sapire Case (supra) that:


"It is not necessary to establish the presence of actual bias: it is sufficient to show the appearance of bias. The reasons for this include Lord Hewart's famous dictum and the act that there are major difficulties in exploring the state of mind of an adjudicator. "


Referring to the case of R v Gough (1993) 2 ALL ER 724 HL decision,

Leon J.P. quotes Lord Goff of Chievely as saying in the latter regard at 728

f-g:


"bias is such an insidious thing that even though a person may in good faith believe that he was acting impartially his mind may unconsciously be affected by bias. "


In the Court of Appeal of this Kingdom Schutz A.J.A in Forrester's Case (supra) considered that it was a broad principle upon which applications for recusal are based that:-


10


biased. " The argument goes on: "The first response to this contention is that it is readily conceded that a judge cannot sit in judgment of a colleague in whose division he himself holds office in any matter in which such colleague is, personally, a party or in which such colleague's personally interests, such as property, character or integrity are concerned. It is standard practice in such cases to brief in a judge from another jurisdiction to set on the matter. " I will revert to this observation when I apply the applicable law to the facts of this case.


Actual bias not being in issue here we consider that it would serve no purpose to discuss it in this judgment. For our purpose as good a starting point as any, made before and since in a myriad of decisions and equally many jurisdiction, is the celebrated statement of Lord Hewart in R v Sussex Justices, ex parte Me Carthy (1924) 1 KB 256 at pp. 258 and 259:-


"It is ........of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."


9


PEETE J.


I agree.


The issue in the main application is principally a question of law which relates to the status of the judge of appeal - i.e. whether under law he can after having been elevated to the esteemed office of "justice of appeal" continue to exercise functions as a judge of the High Court of Lesotho. This by all means is an issue of great importance and consequence. The Constitution of Lesotho, the Court of Appeal Act NO. 10 of 1978 and High Court Act NO.5 of 1978 have no clear provisions in this regard. The decision on this point of law is therefore critical and will create a precedent of enormous proportions in that it will affect the judicial status of not only our Brother Justice Ramodibedi J.A. but of the present and future Justices of the Court of Appeal of Lesotho regarding their entitlement - so to say- to sit as High Court Judges. Consciously or sub-consciously, we sitting here may, because of the normal bonds of fraternity and collegialitv, be perceived by a reasonable litigant as not being completely impartial when addressing this issue of momentous importance - South African Motor Acceptance Corporation (EDMS) BPK v Oberholzer - 1974 (4) SA 808 - headnote reads :-


"Where two judicial officers are attached to the same Bench as colleagues and one of them is a litigant or an accused, then there is a reasonable ground for the other legal official to be recused from trying the action


"That recusatio judicis suspecti applied in respect of all judicial officials irrespective what their order of rank in the hierarchy of the administration of justice might be. It also made no difference whether the action concerned was a civil or a criminal nature. "


In Danisa v British & Overseas Insurance Co. - 1960 (1) SA. 800 Henochsberg J. had this to say at p.812 F-G;


"It seems to me that the test to be applied is whether the applicant can show a reasonable fear that the trial will not be impartial. The matter must be looked at from the point of view of a reasonable lay litigant; but the test is an objective one: the likelihood of bias. It is almost, if not quite, as important that justice should be believed to be


20


impartially administered, as that it should actually be so, but it must also be borne in mind that the mere possibility of bias, apparent to a layman, on the part of a judicial officer is insufficient in the absence of an extra-judicial expression of opinion in relation to the case or in the absence of one of the other recognized grounds upon which an application for recusation is granted. "


I should hasten to state that in the Lesotho of to-day, the lofty ideal of "impartial administration of justice" is a fundamental pillar of our democratic1 society and one which outweighs by far any practical considerations or hardships such as the problems of securing a presiding judge in cases of recusal and the costliness of the exercise.

In the quest for justice, "no matter how conscientious the judge may be, it is better to avoid even a semblance of suspicion and to keep the front of justice pure and undefiled" - Recusation - 1924 South African Law Journal 37.


In our democratic dispensation, an impartial judge is of pivotal and fundamental importance for a fair trial; and if there is a reasonable apprehension honestly held that despite his own judicial oath and his integrity, the judicial officer might not be impartial, he should not decline to recuse himself - not on the ground that he will not be honest and impartial but on the ground that objectively there exist a cogent ground for a reasonable apprehension over his or her impartiality.


' Section 8 of our Constitution reads:-


"Any court or other adjudicating authority prescribed by law for the determination of the existence or Extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within reasonable time.

2 In the case of S. v Modus Publications (Private)Ltd and Another 1998 (2) SACR 151 Gubbay CJ. At 156g had this to say:-


"The office of judge of the High Court is one demanding the highest degree of honesty, integrity, impartiality, complete independence from the Executive and strict adherence to the laws of the land. The public are entitled to, and do, expert no less."


S.N.PEETE JUDGE


21


DISSENTING JUDGEMENT BY GUNI J.


This is an application for recusal of the entire HIGH COURT BENCH and in particular Mrs. Justice Guni, J Peete, J and NOMNGCONGO, A.J a panel of three judges before whom was placed a NOTICE OF CONSTITUTIONAL MOTION Case NO. 1/2003 for its immediate determination. The applicant in this matter seeks the confirmation of the rule NISI issued in the terms which are set out at page 3 of the majority judgement.


This application was filed with this court on the 31/01/2003 with a specific request that it be heard on the 4 day of February, 2003. At that hearing appeared Messrs. Mohau and Mda for the applicant and Messrs. Viljeon SC assisted by Mr. Molyneaux as his instructing attorney for 3rd respondent. No appearance for the 1st and 2nd respondents.


In his opening remarks Mr. Mohau for the applicant, sought directions of how to proceed in this matter - indicating that he is in the hands of the court, because seemingly he had no idea as to how to proceed except that the matter must be determined urgently within the time frame as indicated in


22


their prayer (b). Even though on the notice of motion the matter was moved for hearing on this date - 4/02/03, the pleadings were not yet complete. The opposing papers had been timeously filed. But the applicant had not yet filed the replying affidavit.


Ideas were exchanged between the parties and the court in order to find the convenient and expeditious way forward. Various suggestions were made by all parties as to how and when the pleadings should be completed and the matter be heard. During that discussion of the way forward, my brother Mr. Justice Peete, J as shown in the majority judgement raised the issue of recusal of the entire bench on the ground that we are members of one family with the 1st and 2nd respondents who are the senior members of the said family. He questioned the competency of the juniors (the panel described at paragraph 1 above.) to sit on judgement on their seniors.


Mr. Mohau — counsel for applicant then and there consulted briefly with Mr. Mda and thereafter indicated that he was therefore making that application for recusal. Mr. Viljeon SC rose up immediately indicating that such an application is opposed. It was dismissed as not being properly before the


23


court as it was just being made from the bar - following the suggestion by my brother Peete, J.


An appropriate order was made - giving directions with regard to the way forward and the matter postponed to the 13th February 2003 for the hearing. In the interim period, the application for the recusal of the entire High Court Bench was prepared. It was filed with this court on the 7 February 2003. The applicant sought and obtained a rule MSI in the following terms:-


  1. "That Rules relating to forms and service provided for in the Constitutional litigation rules be dispensed with on account of the urgency of this matter.


  1. The relief sought in terms of Prayer 1 (c) below be determined on the 13th February, 2003 prior to the determination of the main application CC 1/03.


  1. That the Honourable Judges constituting the Full Bench of the High Court consisting of Mrs. Justice Guni, Mr. Justice Peete and Mr. Justice Nomngcongo (and/or any other permanent member of the High Court Bench) should recuse themselves from adjudicating on the main application in CC 1/03.


  1. That 3rd Respondent be directed to pay costs of this application only in the event of contesting same.


  1. That Applicant be granted further and/or alternative relief.


Prayer (b) above was granted by Mr. Justice NOMNGCONGO A.J. The application for recusal was therefore heard and determined first. The


24


applicant has succeeded to retire from the participation of the determination of the main application two members of the panel. I refused to retire for the following reasons.


First of all the deponent of the founding affidavit on behalf of the applicant - Mr. Mda, an advocate of this court and the President of the applicant, avers that there is a real danger (and/or likehood) of bias on the part of the entire Membership of THE HIGH COURT BENCH, because of close relationship between the 1st and 2nd respondents on the one hand and the other judges of the HIGH COURT, on the other hand, fostered by the fact that they are colleagues and would be loath to give a judgement contrary to the 2nd respondent's view. It is further alleged that I am in particular disqualified by reason that I have already expressed a similar view on the issue in the CONSTITUTIONAL CASE NO. 3/2002 of MASUPHA SOLE V BRENDON - PETER CULLINAN N.O. and other.


As regards the definition of bias and the circumstances giving rise to the same I agree with the majority judgement. I disagree with the application of the legal principle to the facts of this case by the majority. I disagree


25


particularly with the determination in the affirmative that there would be a reasonable suspicion held by this litigant, well knowing and believing in the integrity of the judges of THE HIGH COURT and their Oath of office. The conduct of the deponent of the applicant's founding Affidavit while acting on behalf of the applicant points at the different view from the one expressed in the applicant's paper filed of record in this matter. The perceived likelihood of bias must be envisaged in the present circumstances of this particular litigant. Rex V MILNE AND ERLEIGH (6) (A.D.) 1951 (1) SA, 1, at page 11-A.


In the first place this issue of the unconstitutionality of the continued performance of the duties of the puisne judge of the High Court by Mr. Justice RAMODIBEDI, JA, after he had been appointed a permanent member of the Court of Appeal, has been discussed, decided upon, and/or abandoned by this applicant.


In the MASUPHA SOLE matter (supra) the Law Society had intimated or given notice to the parties that it wished to join in those proceedings as amicus curiae. At the hearing of that SOLE matter there was no appearance on behalf of the Law Society despite the fact that all the parties had


26


consented to its intervention. There were no papers filed on behalf of the Law Society. In his address, to the court, Mr. Viljeon SC wondered what could be the position of the Law Society now that for no apparent reason it has failed to file the papers and it was not represented before that court.


As Mr, Viljeon so wondered Mr. Mda was present in that court. He was fully robed. Mr. Sello stood up and borrowed robes from one of the advocates who were also seated in there and interjected to the effect that the Law Society has abandoned the idea because the Law Society had instructed him to represent it but he advised against the idea. The position held by the LAW Society was clarified and settled in that matter of MASUPHA SOLE as shown in that judgement on recusal on the same grounds. (See page 14 of Annexure DM3) attached to ANSWERING AFFIDAVIT by DENIS PETER MOLYNEAUX. Mr. Mda's silence then confirmed the views expressed by Mr. Sello and Mr. Viljeon and the court thanked Mr. Sello for his assistance on that issue and the matter proceeded.


All these happened in Mr. Mda's presence and he must have heard as everyone did in that courtroom. The impression or perception that was given then was that the question of Mr. Justice RAMODIBEDPs continued


27


performance of the duties of the High Court puisne judge after he was appointed permanent member of the Court of Appeal as far as The Law Society is concerned was over. The Law society may have yet again changed its mind and has rejected Mr. Sello's advise. It would seem so. It is the wise man that keeps on changing his mind. So the saying goes. At times the change of mind is indicative of instability. Mind you in the film "LION IN WINTER"; SIR THOMAS MORE cautioned his son-in-law when he excitedly informed Sir THOMAS that he has now converted to Catholicism. It was during the formation of the CHURCH of ENGLAND. Sir THOMAS was greatly admired and respected by the king. The King would have been proud to be followed out of the Catholic Church by SIR THOMAS. Sir THOMAS likened the change of mind to one's turning around one's head. So he remarked that his son-in-law should pray that his head is facing the front when he stops turning it around. Shouldn't we say the same prayer for the Law Society?


In the second place, the manner in which Mr. Mohau, the counsel for applicant, presented the applicant's case before the present panel of three judges, was far removed from even considering the possibilities of applying for the recusal of the panel of the judges he appeared before, let alone to


28


request retirement of the entire HIGH COURT BENCH. The reasons for this conclusion are in the majority judgement at page 4 to 5. Mr. Viljeon SC argued to the effect that this matter of the Notice of Constitutional Motion, is purely a matter for the interpretation of the statutory provisions: (1) The High Court Act, (2) Court of Appeal Act and, (3) the 1993 LESOTHO CONSTITUTION. It does not in anyway touch on the personal interests of the parties as in the case of WCM MAQUTU V AG and Another Case NO. CIV/APN/135/98 where our colleague's property and financial interest were affected. In the present matter whether or not Mr. Justice RAMODIBEDI does only that (10) ten to (14) forteen days' work per sitting of the Court of Appeal, he is entitled and he should continue to receive his full salary. The applicant's prayers are in no way directed to harm or prejudice our colleague. The alleged likelihood of bias must be in connection with the present litigation. Rex V. The London County Council; re The Empire Theatre, 71 LT. 638.


The interests of the High Court Judges who are asked to recuse themselves are allegedly somewhere in the future as they are described as aspirants of that highest judicial office. My answer is that if presently Mr. Justice


29


RAMODIBEDI JA's interests are not affected, those of aspiring judges of Appeal, will similarly not be affected.


The other reason for our likely bias in favour of the respondents is expanded upon by my brother Peete J. He regards all the judges of the High Court as members of the same family. The respondents, because of their seniority, are therefore the parents in that family. He therefore questions the competency of the juniors to seat in judgement upon their seniors because the panel is composed of junior judges. It is not disputed that the 1st and 2nd respondents are the most senior members of the judiciary in this Kingdom excluding only the members of the court of Appeal. We are not judging them. Whichever way the case goes they will suffer no prejudice, actual or potential.


The suggestions made on behalf of the applicant for the appointment of a foreign or a local judge specifically to deal with this matter as it was done in WCM MAQUTU V AG and Another (supra) and KHAUOE and MOSHOESHOE IPs cases, compounds the problem of seniority even further. The suggestion ignores the time factor and availability of readily disposeable funds to make those appointments. It is not desirable for the courts to make decisions which would in fact have a bearing on budgetary


30


considerations or policy which in my view blurr the fine line of demarcation between the powers of the executive and the judiciary. One arm of the government should not be seen to usurp the powers and/or functions of the other. Judges cannot be made even yearly without properly formulated policy supported by financial state of affairs which does not fall within the realm of the judiciary. Prayer (b) of the main application envisages the situation whereby the court is able at the snap of a finger to produce the new judge who would not be suspected to lack independence in the performance of his or her duties. The suggestions made by this litigant are very presumptious - unreasonably so. The former Chief Justice only recently retired on grounds of ill health. There are still part-heard matters which he is unable to complete because of his poor health. How and when has his health been so good that he is ready to-day or rather yesterday to deal with that matter?


The suggestion that the junior judges would be loath to give judgement contrary to the views of the respondents, totally disregards the oath of office taken by all judges and the integrity of those judges. Furthermore that suggestion ignores the fact that, an imported judge or even the newly appointed local judge, must take an oath of office at the time of


31


their appointments. How will those newly appointed judges be ranked? The decision of The High Court is binding authority upon the courts irrespective of their composition. The precedent cannot be expected to be binding only on the local judges and not on the imported judges. The precedent is the law of the land. It is binding on every one until it is set aside or quashed. If it is not properly applied the litigant who is aggrieved by that decision has, as always, the right to appeal. Rex V MILNE AND ERLEIGH (Supra). There is no suggestion that the new appointees will necessarily be sworn as the holders of that highest office in this kingdom's judiciary.


I am singled out as specifically disqualified on the ground that I hold views which I have already expressed in that MASUPHA EPHRAIM SOLE's case. (Supra) I have expressed numerous and various views in criminal and civil matters which I have handled since my appointment to the bench. The functions of the judges or any presiding officer for that matter, be it a magistrate or president of the local court, are generally routine. The present decisions are made-based on the law as expressed in the previous decisions. I have already dealt with the question of the precedent and that it is binding on all the judges whether or not they are newly appointed to deal with specific cases or have actually participated in the making of that decision


32


which is referred as binding. How I wish I could come into court with absolutely empty mind with no preconceived ideas whatsoever. But that is just a wish - not a horse. Therefore I am still not a rider. If wishes were horses we would all be riders.


The perusal of papers filed of record gives the reader an opportunity to form an opinion. It could be as few lines as the charge the accused is facing. There will be an impression made on the presiding judge's mind. That impression or opinion is removed or confirmed by facts set out in the evidence and submissions made by the counsel. That view which I have expressed in that MASUPHA SOLE's case is subject to change or even total removal by pursuation and submissions that will be made by the counsel. This is the way courts operate. The court is pursuaded to move away from the views it held. It is not only normal to form an impression but it is difficult to be without one. One party succeeds where the other fails because of the impressions made upon the presiding judge by the counsel in the presentation of the case and the force of the argument which is well formed and supported. There is no person without preconceived ideas. E.g. the Christian may be influenced by The Laws of God given to Moses for


33


dissemination to His people. Christians must be prejudiced against those accused of breaking God's Law.


According to Mr. Mohau's argument once a presiding officer has dealt with a certain issue and decided upon it, that judicial officer is disqualified from ever again dealing with the case where the similar issue needs to be determined. In the case of R V T 1953 (2) SA (A) more or less the same argument was made. The magistrate who tried and convicted a female accused for contravention of Section 2 of Act 5 of 1927, was asked to recuse himself from trying the male European who allegedly committed the same crime. Thank goodness, it was long before the advent of Sharia law in some Nigerian states where only women are found guilty and sentenced to death by stoning for adultery while the man remain free. The magistrate refused to recuse himself. He tried and convicted the accused whose partner in that crime - the convicted black woman, was used as a witness. On appeal, the Appellate Division then, consisting of Centlivres, CJ., sitting with Greenberg, J.A., A Schreiner, J.A., Hoexter, J.A. and Fagan, J.A.concurring,. Held that such magistrate was not disqualified from trying the case.


34


The scenario created in Mr. Mohau's argument, regarding previous decisions made by the said judges and/or magistrates on certain issues, put them on semi or permanent retirement because they should every time when such a similar case arise, recuse themselves from handling it. The judicial Service Commission will be required to advise His Majesty to appoint a new judge for every new murder case unless the issues in every murder case are totally different. Now with civil suits e.g. divorce, bankrupcy etc. judges would have to be appointed on daily basis.


The incompetancy to hear and determine any matter is primarily the matter of conscience of the judge concerned. LESOTHO ELECTRICITY CORPORATION V FORRESTER 1979 (1) LLR 440 at 454-455. SCHUTZ AJA cautioned in this case against the judge taking an advantage of a "possibly convenient course of retiring from difficult litigation merely because one of the litigants asked him or her to do so" If I may add, the judge should not wait for the litigant to ask him to retire. If at the end what matters is the conscience of the judge, the judge should mero motu recuse himself or herself. Had the applicant in our present case not come to our rescue by formally applying in the interim period while the matter was postponed for the purposes of completion of the pleadings, we would have


35


been embarrassed. In the majority judgement the matter is left open for other judges to act in accordance with their own consciences. I also do not decide for the entire High Court BENCH. Each judge of this court must and will act in accordance with his or her conscience.


K.J. GUNI

JUDGE


36