Sole v Cull1nan and Others (C of A (CIV)29/2002)

Media Neutral Citation: 
[2004] LSHC 153
Judgment Date: 
10 December, 2004

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C of A (CIV)29/2002

IN THE COURT OF APPEAL OF LESOTHO


In the appeal of:

MASUPHA EPHRAIM SOLE Appellant

and

BRENDAN PETER CULL1NAN First Respondent

JUDICIAL SERVICE COMMISSION Second Respondent

DIRECTOR OF PUBLIC PROSECUTIONS Third Respondent

MINISTER OF JUSTICE AND HUMAN RIGHTS Fourth Respondent

PRINCIPAL SECRETARY, MINISTRY OF JUSTICE

AND HUMAN RIGHTS Fifth Respondent

MINISTER FOR THE PUBLIC SERVICE Sixth Respondent

ATTORNEY-GENERAL Seventh Respondent


JUDGMENT


Constitutional law - appointment of serving Judge Advocate and retired Chief Justice as an acting judge of the High Court for purpose of hearing single complex criminal trial of appellant - formalities and remuneration - claim that such appointment in breach of sections 115(1) and 120(5) of the Constitution of Lesotho, 1993 - claim that criminal trial consequentially conducted in breach of sections 12(1) and 118(2) of the Constitution and therefore a nullity.


Court - appeal arising from principal application to court a quo for recusal of


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judge in criminal trial and thereafter application for recusal of court a quo too - contention that High Court Judge also serving as member of Court of Appeal disqualified from hearing principal application - need to apply for recusal without delay - Court a quo not considering exercise of powers under s. 22 of Constitution - appeal against refusal of principal application however failing.


Costs - appeal against award of costs by court a quo on attorney and client scale and de bonis propriis against appellant's attorney.


1, 14 April 2003


Coram:

Grosskopf JA

Plewman JA

Smalberger JA

Melunsky JA

Gauntlett JA


Gauntlett JA:


[1] After a lengthy trial before the first respondent, an acting judge of the High Court (Cullinan AJ, a retired Chief Justice of Lesotho), the appellant - the former chief executive of the Lesotho Highlands Development Authority -was convicted on 11 counts of bribery and two counts of fraud, and sentenced to an effective 18 years' imprisonment. He has appealed against his conviction and sentence; that appeal has also been enrolled for hearing during the current session of this court. Exactly one month after he was sentenced, the appellant however also separately instituted what was styled a "notice of constitutional motion" in the High Court. It sought to nullify his trial, and hence conviction and sentence, on the basis that Cullinan AJ was


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disqualified to preside over it. The "notice of constitutional motion" proceeded before the court a quo, a Full Bench of the High Court (Lehohla CJ, Ramodibedi J' and Guni J). It is against three separate orders made by the Full Bench that the present appeal has been lodged.


[2] The first is the order by the court a quo that the appellant's attorney pay the costs of an unsuccessful application for postponement on the attorney and client scale and de bonis propriis. The second is its dismissal of an application thereafter made for the recusal of two members of the court. The third is its dismissal of the principal application before it, in which the appellant sought an order declaring the appointment of the first respondent as an acting judge to be in breach of section 120(5) of the Constitution of Lesotho, 1993; declaring his remuneration to be in breach of section 115(1) of the Constitution {read with section 6A of the Statutory Salaries Order, 8 of 1972, as amended); and declaring consequentially the appellant's trial in which the first respondent had presided to be in breach of sections 12(1) and 118(2) of the Constitution and therefore invalid. I shall refer to this as "the principal application".


The judgments of the court a quo erroneously refer to Ramodibedi J as "Ramodibedi J (A)". The conflation of judicial capacities suggested by this is to be avoided. The correct description of a High Court judge who presides in a High Court matter while also serving (pursuant to the provisions analysed below) as a member of the Court of Appeal, is - in relation to that matter - "J".


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[3] It is convenient to deal with these three matters in that order.


  1. The postponement application, and the consequential costs order


[14] The appellant sought the postponement of the hearing of the principal application against the following background. On 7 December 1999, the appellant was committed to stand trial in the High Court together with 18 others on some 19 counts, including 16 of bribery. His co-accused included both individuals and international construction companies and consultants. A number of interlocutory applications ensued involving matters such as the separation of trials, the legality of the charge sheet, the withdrawal of Crown counsel and the manner in which certain of the accused were cited. Ultimately the appellant remained the sole accused, his trial proper only commencing on 11 June 2001. Judgment was delivered on 20 May 2002, when the appellant was found guilty on (as I have indicated) 13 of the counts. On 4 June 2002 he was sentenced. He proceeded to note an appeal against his conviction and sentence.

[5] The principal application was enrolled for hearing on 10 December 2002. The material events which preceded the hearing were these. The application


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was lodged on 4 July 2002; the answering affidavit on 9 August 2002; and the replying affidavit on 2 September 2002. The appellant's attorney, and the attorney representing the second, fourth, fifth, sixth and seventh respondents (to whom I shall refer for brevity as the respondents' attorney) thereafter met in the Chief Justice's chambers on 14 October 2002. They agreed suitable dates for the hearing (10 and 11 December 2002). These were specifically dates on which Johannesburg senior counsel engaged on behalf of the appellant to argue the application would be available. On the following day, the respondents' attorney wrote to the appellant's attorney and asked him to set the matter down accordingly.


[6] He did not do so. After a week the respondents' attorney accordingly wrote to the appellant's attorney (on 22 October 2002) and again asked him to enroll the matter. A further week ensued without the matter being enrolled. Accordingly on 29 October 2002 the respondents' attorney wrote to inform the appellant's attorney that, in the circumstances, he himself had enrolled the matter for the dates agreed upon. This letter was followed two days later by a further letter from the respondents' attorney to the appellant's attorney proposing that the appellant file his heads of argument on 25 November and the respondents their heads of argument on 2 December 2002. When this had elicited no answer by 7 November 2002, the respondents' attorney once more wrote a letter, seeking an urgent response


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to his letter regarding the heads of argument.


[7] This, too, elicited no reaction. On 26 November 2002 the respondents' attorney yet again wrote to the appellant's attorney, accepting that no exchange of heads of argument would now take place, asking that at least a list of authorities on which the appellant's counsel would rely at the hearing be supplied, and undertaking on behalf of the respondents to act reciprocally.


[8] On 5 December 2002, the appellant's attorney wrote a lengthy letter. While dealing with other matters, it made no reference to any difficulty regarding the hearing arranged by the attorneys on both sides with the Chief Justice six weeks previously, and scheduled for the next week.


[9] A day later - on the afternoon of 6 December 2002, a Friday - the appellant's attorney telephoned the respondents' attorney to ask for a postponement of the hearing scheduled for 10 December. The latter immediately declined to accede to the suggestion as counsel had been engaged and all arrangements made for them to travel to Maseru. The result was a response in writing on 9 December 2002 to the correspondence described above, which had gone unanswered in its entirety until that moment. In this response, four reasons were suggested for the proposed postponement. The first was that the


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appellant's senior counsel "was not ready to argue the matter because of the fact that the client had not been able to arrange for his fees". The second was that the counsel in question "has not been admitted to practise in this jurisdiction and.....due to an oversight on our part it has not been possible to make the necessary arrangements for his admission at this very late hour". The third was that the Law Society had indicated its intention to apply to join in the main application, and "would probably need some time to prepare itself". The fourth was the suggestion that the question of recusal of two of the judges allocated to hear the matter "may have to be dealt with first".


[10] The hearing took place on 10 December. The Chief Justice, delivering the judgment of the court, dismissed the application for a postponement after a brief adjournment following the conclusion of oral argument and on 17 December 2002 handed down a judgment (in which the two other members of the court concurred) setting out his reasons for doing so. The order made on 10 December reads as follows:


"Application for postponement is refused with costs de bonis propriis on the scale of attorney and client granted against the attorney Mr Phoofolo as a mark of the court's displeasure for the negligent manner in which the matter was conducted and the timing as an added factor showing total disregard for the convenience of the other party and of the court. Such costs shall include costs consequent upon the employment of two counsel. Further reasons will follow".


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[11] The order refusing the postponement is, of course, as a purely interlocutory ruling not itself subject to appeal: only the costs order is. Shortly stated, the court's reasons were these. The question of the financial position of the appellant was no surprise to his attorney. It had been known throughout the period of the criminal trial, in which the attorney had represented the appellant on legal aid precisely because of the appellant's inability to meet the costs of the trial unassisted. (It may be noted that this assistance was rendered by the Legal Aid Board at a rate which took into account the scale and complexity of the trial, namely approximately ten times the ordinary rate payable in respect of legal aid in Lesotho). Thus the appellant's attorney knew about the appellant's financial position for a period in total of at least eighteen months. In addition, the Chief Justice considered, it was "a matter again for great astonishment" that the appellant's attorney should, at the eleventh hour, have relied on the fact that counsel of his own choice had not been admitted in Lesotho. As the Chief Justice pointed out, the appellant's attorney himself admitted that this failure was his responsibility. Finally, as regards the question of intervention by the Law Society, at the hearing on 10 December the legal representative for the Law Society disclosed to the court that he had advised the council of the Law Society against intervention, and that his advice had been accepted. Thus the expectation that a postponement would be required to allow for intervention by the Law Society was not borne out.


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[12] In these circumstances, the Chief Justice characterised the conduct of the appellant's attorney as amounting to an "unreasonable and inexplicable failure or reluctance to do what he had undertaken to do i.e set the matter down"; as involving a failure which "is only inexcusable and accordingly deserving of censure"; as entailing obvious prejudice (through delay) for the respondents in achieving a determination of the matter; as involving an application for postponement without any formal notice and substantive affidavits; and involving, all in all, "inexcusable irregularities".


[13] This court has repeatedly warned that gross breaches of the Rules and of this court's circulars issuing further procedural directions may, In appropriate circumstances, give rise to costs orders de bonis propriis. 2 Indeed, each court circular in respect of sessions of this court has, in recent years, itself expressly reiterated that warning. The multiple failures by the appellant's attorney were, for the reasons given by the court a quo, reprehensible. The court a quo had a discretion regarding costs, and it has not been shown that it exercised it in a way which would warrant our intervention. In my view the appeal against the costs order relating to the application for a postponement is without merit, and should be dismissed.


2 Cf. Lesotho Brake & Clutch v Sachs SA (Pty) Ltd (1999-2000) LLR 260 (LAC).


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  1. The application for recusal in the court a quo


[14] I turn now to the second issue in this appeal. This involves the unsuccessful application for the recusal of two members of the court a quo. This application, it is to be noted, was moved only after the application for postponement had failed. It was also only moved after the principal application was argued. What happened was that the court a quo (after adjourning briefly following the conclusion of the postponement application and then reassembling to dismiss it, as I have described in paragraph [10] above) immediately proceeded to deal with the principal application. It invited the appellant's attorney to address it. He declined, stating that he had nothing to add to the papers filed on behalf of the appellant. Counsel for the respondents then addressed the court. Thereafter the matter was adjourned for judgment in relation to the principal application on 17 December 2002. Two days after the hearing however - thus on 12 December 2002 - the application for the recusal of two members of the court a quo was launched. It was enrolled for 13 December, but had to be postponed to 17 December to enable an answering affidavit to be filed. No replying affidavit was filed. The application for recusal relating to the court a quo was then duly argued on 17 December 2002. After oral argument, and a brief adjournment by the court, the application for recusal of the two members of the court was dismissed; the court's reasons were handed down


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in the form of a written judgment by Guni J for the court on 28 January 2003. Immediately thereafter judgment in the principal application was delivered for the court by Ramodibedi J.


[15] The application for recusal of two members of the court a quo, as it was conceived and made on 17 December 2002, was in my view correctly dismissed.


[16] As has been recorded in paragraph [9] above, the appellant's attorney had noted in his letter of 9 December 2002, seeking a postponement of the hearing of 10 December 2002, that the appellant "would object to the presence of two of the presiding Honourable Judges, and...the question of recusal may have to be dealt with first". The Registrar of the High Court was also so notified. In fact, no such objection was raised; the appellant first sought to achieve a postponement. Nor was it moved when the court reconvened (after dismissing the postponement application) and proceeded to hear argument on the principal matter. As already described, when the appellant's attorney was expressly called upon to submit oral argument, his response was not to object to the court hearing the matter, but to refer the court to what had already been put before it in written form.


[17] The explanation offered for the two decisions so made on 10 December -


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first at the commencement of proceedings and again after the court reconvened to hear the principal application - not to apply for recusal is given in this way in the Notice of Appeal: it is said that it was "clearly apparent from their lordships' judgments [ no judgments had at that stage been given] that the atmosphere in the court on the 10 December 2002....was not at all conducive to the moving of such an application". A somewhat different explanation is advanced in the appellant's affidavit, but it relates only to the second decision not to object to the composition of the court (that is, after the postponement application failed). He says that although he had decided to make the application, he was left "terrified and speechless by the withdrawal of his attorney, which is precisely the reason why I make this application sitting in the privacy and calmness of my prison cell". The evidence however shows that the appellant was not rendered speechless; he exercised his right himself to address the court, and appears to have done so at some length.


[18] Neither answer to the complaint by the respondents that the application should have been made at least before argument commenced on the main application is compelling. It is no reason at all why objection was not made at the outset of proceedings on 10 December - thus before the postponement application was made. The court could not have evinced any "atmosphere" before it commenced sitting. If, moreover, the court was considered by the appellant (as he subsequently deposed) to be "totally


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biassed in favour of my opposition" it is inexplicable that the appellant - assisted to that point by an attorney and himself a senior executive with education and wide administrative experience - desisted from so much as noting his objection to the principal application proceeding.


[19] When an adjudicator should be recused,


"it means that the trial..........should never have taken place at all. What occurred was a nullity. It was not, as in many of the cases quoted to us, an irregularity or series of irregularities committed by an otherwise competent tribunal. It was a tribunal that lacked competence from the start. The irregularity committed by proceeding with the trial was fundamental and irreparable".3


The judge who should be recused but continues to sit thus


"commits....an irregularity in the proceedings every minute he remains on the bench during the trial...".4


Nullity in criminal justice has serious consequences - for those involved, and for the administration of justice itself. There may be special instances in which a failure to raise recusal at the outset is, on the particular facts of the matter, explicable. But since the objection is, in its effect, to jurisdiction, in principle it should be raised in initio litis. As this has been put by a


3 Council of Review, SADF v Monnig 1992 (3) SA 482 (A) at 495B-C, per Corbett CJ.


4 R v Milne and Erleiqh (6) 1951 (1) SA 1 (A) at 6 in fin per Centlivres CJ; Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) at 8J-9G. per Hefer JA.


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particularly eminent court in a recent English decision:


"It is not open to [the litigant] to wait and see how her claims... turned out

before pursuing her complaint of bias..... [She] wanted to have the best of

both worlds. The law will not allow her to do so".5


A waiver entailed by a failure to raise the point need not be express: it need only be clear.6 The same applies to an election.7


The conscious decision by the appellant (having given formal notice on 9 December of his intention to do so) not to object to the composition of the court a quo on 10 December 2002 - when the court commenced proceedings, prior to the application for a postponement being moved, and again when that application had been dismissed and the court indicated that it wished to hear argument on the principal application - in my view supports the objection by the respondents in their affidavits to the late making of the application for recusal in the court below.


5 Locabail (UK) v Bayfield Properties Ltd [2000] 1 All ER (CA) at 76. per Lord Woolf MR, Lord Bingham LCJ and Scott V-C. See also De Smith, Woolf and Joweil Judicial Review of Administrative Actions (1995, and 1998 supp.) 12 - 036: "Objection is generally deemed to have been waived if the party or his legal representative knew of the disqualification and acquiesced in the proceedings by failing to take objection at the earliest possible opportunity".


6 Wade and Forsyth Administrative Law (8th ed 2000) 455-6, and authorities collected in note 70; Snyman v Liquor Licensing Court, Windhoek (2) 1963 (1) SA 460 (SWA) at 465D-G; Muller and Cloete v Lady Grey Divisional Council 1929 EDL 307 at 313-6; Baxter Administrative Law (1984) 591-2; cf. Volschenk v President, SA Geneeskundige en Tandheelkundiqe Raad 1985 (3) SA 124 (A) at 140D-J.


As to the elements and application, see the analysis by Hoexter JA in Chamber of Mines v National Union of Mineworkers 1987 (1) SA 668 (A) at 690D-J.


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[20] The second reason why I consider that the application for the recusal of two of the members of the court a quo was correctly dismissed is that, on its facts, the application was in any event devoid of merit. Although I have reached the conclusion that the application, as it was conceived and moved, had to fail for the reason just stated, the substantive issues raised by the application are of public importance, and are such as to make a ruling by this court also on that basis desirable, leading as it does to the same result.


[21 ] It is necessary in this regard first to state the legal test applicable to recusal of a judge. This is because earlier decisions grappling with this issue as a matter of English law have aptly been described by Lord Goff of Chieveley as "not only large in number but bewildering in their effect".8 South African authorities have recently sought to avoid this casuistry, and the uncertainty it has engendered.9 The highest courts both in South Africa and more recently in Swaziland10 have applied this test:


"The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not


8 R v Gough (1993) 2 All ER (HL) at 827c.


9 See especially BTR Industries SA (Pty) Ltd v Metal and Allied Workers' Union 1992 (3) SA 673 (A); President of the RSA v SARFU 1999 (4) SA 147 (CC); S v Roberts 1999 (4) SA 915 (SCA); SACCAWU v President of the Industrial Tribunal 2001 (2) SA 277 (SCA); Sager v Smith 2001 (3) SA 1004 (SCA); S v Shackell 2001 (4) SA 1 (SCA).


10 Minister of Justice v Sapire (civ, app. 49/2001. 10.6.02 (unrep.)) p 9. Cf. also the previous decisions by this court in Sekoati and 48 Others v President of Court Martial and 10 Others 2001 (7) BCLR 750 (LAC) and Law Society of Lesotho v Prime Minister of Lesotho (1985-9) LAC 129.


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bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial".11


(22) In my view the general test for recusal cited in the previous paragraph - itself since cited with approval by the Court of Appeal in England 12 - should be applied in Lesotho too. As South Africa's Supreme Court of Appeal has noted, in applying this test "the purpose of formulating the test as 'double-reasonableness' is to emphasise the weight of the burden resting on the appellant [sic] for recusal".13


[23] I turn to the application of this test to the application for recusal of two members of the court a quo, as it was moved on 17 December 2002. The first ground for recusal asserted by the appellant is the contention that two members of the court a quo exhibited, in what they said during the hearing on 10 December 2002, "no semblance of detachment and were totally


11 President of the RSA v SARFU (1) 1999 (4) SA 147 (CC) at 177B-E.


12 Locabail Ltd v Bayfield Properties Ltd supra.


13 S v Shackell supra 10C.


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biassed" against the appellant.


[24] This attack relates primarily to what are described as 'stinging' observations from the Chief Justice and Ramodibedi J in the aftermath of the abortive postponement application, and relies on what the appellant asserts in his affidavit, confirmed - as respondents' counsel noted, "somewhat equivocally" - by Mr Phoofolo. (The appellant himself said in his affidavit, it may be noted, that his account of what passed in court "may not be accurate", but nevertheless contended in conclusion that "what I have stated above was in fact said"). But this account is, in material respects, refuted in the detailed answering affidavit filed on behalf of the respondents. (No replying affidavit was filed; however given the extraordinary and (it must respectfully be noted) quite irregular procedure adopted in this regard by the court a quo,14 it would be unfair to the appellant to make anything of this). That version, in turn, is consistent with the facts recorded by Guni J (who delivered the judgment of the court in relation to this aspect)15. In these circumstances, as this court has repeatedly noted, the ordinary rule in motion


14 The court's judgment (per Guni J) records:


"The applicant had not filed a replying affidavit. He proposed to reply verbally during the hearing. The court acceded to his proposal. That is how the matter finally proceeded on 17 December 2002".


How the court would give effect to this procedure, and how the respondents would deal with a reply which was informal and which intertwined asserted facts with argument, is not indicated.


In appropriate circumstances, a court faced with a recusal application may itself have to set out facts relevant to the application: see SARFU v President of the RSA (1) supra at 165F-167H.


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proceedings applies: except where the version of a respondent is so clearly farfetched or otherwise untenable that it can be rejected simply on the papers, in the absence of a referral to oral evidence it is the basis on which the court must proceed.


[25] It was also contended that the Chief Justice fell to be recused because he had, in a related criminal trial involving Acres International, relied on decisions and rulings by the same judge (Cullinan AJ) to whose position the principal application related. The objection is in my view untenable: it could as well be applied to any court of appeal which, at times has upheld judgments of a particular puisne judge. The fact that certain factual matters may overlap between two (or more) matters in contention adds little. As was said in an analogous situation:


".......there is no rule in South Africa which lays down that a judge in cases other than appeals from his judgments is disqualified from sitting in a case merely because in the course of his judicial duties he has previously expressed an opinion in that case. There would be as little justification for such a rule as for a rule which laid down that a judge who in a judgment expressed his opinion as to the correct interpretation of an Act of Parliament could not sit in a subsequent case between different parties where the same question of interpretation was involved".16


[26] A third basis for the application involved the contention that Ramodibedi J, having been appointed on a permanent basis as a member of the Court of Appeal, was prevented from sitting as a judge of the High Court. The


16 RvT 1953 (2) SA 479 (A) at 582G-H.


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contention was that, once so appointed, Ramodibedi J ceased to be a member of the High Court Bench and, besides, by serving in both capacities, the perception would be created in the minds of ordinary people "that Court of Appeal judges may be loath to overturn judgments delivered by their colleagues sitting in the High Court, and that this may impact negatively on public confidence in the administration of justice".


.[27] It is first necessary to deal with the contention that Ramodibedi J had vacated his office as a High Court judge by virtue of the provisions of section 121(1) of the Constitution. This in my view is without any merit. The provision is, in fact, to the effect that the "Chief Justice or other judge of the High Court shall vacate that office when he attains the prescribed age". That is the only provision stating an ex lege basis on which termination of appointment occurs. The balance of the provisions deal with mechanisms for removal from office {subsections (3) to (7)), and the capacity of Parliament to alter the retirement age (subsection (8)).


(28) As regards the alternative contention, relating to the perception of the public, this overlooks section 123(2)(c) which provides that the judges of the Court of Appeal include "the Chief Justice and the puisne judges of the High Court ex officio". There is no room for the "perception" raised by the appellant, if the Constitution - the supreme law of Lesotho - itself provides in the clearest terms for that very state of affairs. That it does so is doubtless for


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the reasons suggested by Guni J in her judgment: the fact that Lesotho is a poor country, drawing on a small pool of skilled lawyers. The balance struck in the Constitution is between a situation in terms of which it is possible to convene a Court of Appeal bench drawing (in part or in whole, as exigencies require) on full-time members of the High Court, but also (pursuant to section 124 of the Constitution) to appoint suitably qualified other persons to serve as Judges of Appeal on a non-full-time basis.


[29] For these reasons, the court a quo was also correct in dismissing the application made on 17 December 2002 for the recusal of two of its members.


[30] That however, most regrettably, does not end the inquiry as to whether the court a quo was disqualified from continuing to sit, and to adjudicate the principal application. I have already referred to the fact that the dismissal by the court a quo on 17 December 2002 of the application for the recusal of two of its members was immediately followed by argument on the principal application, and an ex tempore judgment (delivered for the court by Ramodibedi J). Its opening lines are these:


"The applicant is seemingly like a man besieged but I should hasten to say the whole saga is no doubt of his own making. His alleged participation in fraud and bribery scandals involving millions of Maloti while Chief Executive of the Lesotho Highlands Development Authority (LHDA) has come to haunt him in the courts of law with perhaps the same relentlessness as a fairytale ghost does in stalking its prey".


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It continues:


"He has admittedly appealed against both conviction and sentence but he obviously does not feel confident of success in that approach judging from what follows hereunder. So what must he do now to get out of this quagmire ? Must he resign himself to fate and thereby sink or must he devise ways and means of extricating himself ? In the midst of this daunting task in deciding upon an appropriate course of action beneficial to himself he has, rather belatedly, it has to be said at the outset, come up with an ingenious idea namely to attack the constitutionality of the appointment of the learned acting judge who tried him, namely the first respondent. It is this application which is before this court".


It concludes:


"It is a strange twist of events that this judgment should end where it started namely with applicant's typical ingenious attack on the judges presiding over his cases. This no doubt demonstrates his desperation as fully set out....above......True to form, the applicant allowed the present application to proceed......Applicant embarked upon another ingenious idea, that is to attack two members of this panel by seeking their recusal on the unfounded and manifestly contemptuous allegation that they are 'biassed'. These are my brother the Chief Justice and myself....


Not only is the application for recusal devoid of merit but it is now clear to the court that it amounts to unjustified delaying tactics in the hope that it might favourably affect the outcome of applicant's criminal appeal in question. While it is perhaps true to say that a drowning man clutches at straws this case no doubt borders on the extreme. There is surely a limit beyond which tactical ploys can be taken".


[31] In comparable circumstances, where a judicial officer was affronted by an application for recusal which, in his assessment, entailed an attack on his integrity, it was aptly said:


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"A judicial officer should not be unduly sensitive and ought not to regard an application for his recusal as a personal affront. (Compare S v Bam 1972 (4) SA 41 (E) at 43G-44). If he does, he is likely to get his judgment clouded; and, should he in a case like the present openly convey his resentment to the parties, the result will most likely be to fuel the fire of suspicion on the part of the applicant for recusal. After all, where a reasonable suspicion of bias is alleged, a Judge is primarily concerned with the perceptions of the applicant for his recusal for, as Trollip AJA said in S v Rall 1982 (1) SA 828 (A) at 831 in fine - 832:


'(T)he Judge must ensure that 'justice is done'. It is equally important, I think, that he should also ensure that justice is seen to be done. After all, that is a fundamental principle of our law and public policy. He should therefore so conduct the trial that his open-mindedness, his impartiality and his fairness are manifest to all those who are concerned in the trial and its outcome, especially the accused'.


(See also S v Malindi and Others 1990 (1) SA 962 (A) at 969G-I and cf Solomon and Another NNO v De Waal 1972 (1) SA 575 (A) at 580H; S v Meyer 1972 (3) SA 480 (A) at 484C-F). A Judge whose recusal is sought should accordingly bear in mind that what is required, particularly in dealing with the application for recusal itself, is 'conspicuous impartiality' (BTR Industries (supra at 694G-H)".17


[32] In the present case, however, the court's remarks came at the end of a protracted process in which the conduct of the appellant as well as his attorney had been extremely provocative. Certainly this conduct fosters the impression of resort to procedural ploys. In the circumstances, the court's rhetorical excess would not in my judgment give rise to "reasonable grounds on the part of a litigant for apprehending that the judicial officer for whatever reasons, was not or [would] not be impartial".18


17 Moch v Nedtravel (Pty) Ltd supra at 13I-14C.


18 See note 10 supra. (It may be noted that the oral and, in particular, written argument for the appellant before us also contained excessive language and a number of irresponsible submissions; these however, were retracted by the


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[33] The result is that the appeal against the order made on 1 7 December 2002,

and the judgment delivered for the court by Guni J on 28 January 2003,19 dismissing the application for recusal of two members of the court a quo, must fail.


  1. The application for the recusal of Cullinan AJ


[34] I turn now to the principal application which seeks declaratory orders predicated upon the proposition that the appointment of Cullinan AJ to conduct the appellant's criminal trial was a nullity. The correct legal test to be applied in this regard has been stated in paragraphs [21] and [22] and requires no reiteration here.


[35] The appellant's argument in this regard invokes as its point of departure the supremacy of the Constitution (for which section 2 provides), read with three provisions in the Constitution. The first is section 12(1), which states:


"If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law".


appellant's counsel, and an apology tendered from the Bar.)


See paragraph [14] above. It should be noted that, as a matter of strict procedure, an application for recusal of an adjudicator should ordinarily be directed at the adjudicator in question, and initially at least, be determined by him or her. However, as in this case the order and judgment of Guni J were concurred in by both members of the court at whom the application was directed, nothing appears to turn on this, and indeed nothing was made of it.


24


In a similar vein, section 118(2) and (3) provide:


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 or any other law.


3) The Government shall accord such assistance as the courts require to enable them to protect their independence, dignity and effectiveness, subject to this Constitution and any other law".


[36] As already noted, the principal application is made in the form of a "notice of constitutional motion". Neither the Constitution nor the Constitutional Litigation Rules20 makes provision for such a form of procedure. It is apparent however that the appellant wished to invoke section 22 of the Constitution which provides in its relevant part:


"Enforcement of protective provisions


22 1) If any person alleges that any of the provisions of sections 4 to 21 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.


2) The High Court shall have original jurisdiction -


a) to hear and determine any application made by any person in p ursuance of subsection (1); and


20 Lesotho Government Gazette Extraordinary Vol. XLV No. 104( 14 Decemb2000).


25


b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (3),


and may make such orders, issue such process and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 4 to 21 (inclusive) of this Constitution:


Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law".


[37] Having instituted his appeal to this court in the ordinary course against both his conviction and sentence, by resort to his "notice of constitutional motion" the appellant launched a collateral challenge to the validity of the proceedings before Cullinan AJ. In his founding affidavit he states:


"I have instructed my attorney to appeal against both my conviction and sentence. However, I am advised that the issues dealt with in this application and the relief sought cannot be dealt with in the appeal that is being made to the Court of Appeal on my behalf".


In the answering affidavit filed on their behalf, the respondents stated that this contention was "not admitted but raises a legal question which can be addressed in argument".


[38] In principle, collateral attacks on the validity of legal proceedings are


26


inherently troublesome.21 The Privy Council deplored the invoking of parallel

remedies in these terms:


"Acceptance of the appellant's argument would have the consequence that in every criminal case in which a person who had been convicted alleged that the judge had made any error of substantive law as to the necessary characteristics of the offence there would be parallel remedies available to him: one by appeal to the Court of Appeal, the other by originating application under section 6(1) of the Constitution to the High Court with further rights of appeal to the Court of Appeal and to the Judicial Committee. These parallel remedies would be also cumulative since the right to apply for redress under section 6(1) is stated to be 'without prejudice to any other action with respect to the same matter which is lawfully available'. The convicted person having exercised unsuccessfully his right of appeal to a higher court, the Court of Appeal, he could nevertheless launch a collateral attack (it may be years later) on a judgment that the Court of Appeal had upheld, by making an application for redress under section 6(1) to a court of co-ordinate jurisdiction, the High Court. To give to Chapter 1 of the Constitution an interpretation which would lead to this result would, in their Lordships' view, be quite irrational and subversive of the rule of law which it is a declared purpose of the Constitution to enshrine".22


[38] The Constitution of Lesotho, it will however have been noted, specifically authorises the use of the particular constitutional remedy for which section 22 provides. Notwithstanding this, the proviso to section 22(2) expressly accords the High Court the discretion to decline to exercise its powers in this regard if satisfied that "adequate means of redress for the contravention alleged" are available. In my view, they undoubtedly were so available in the present case. A failure by an inferior court to recuse itself when required by


21 Metal and Electrical Workers Union of South Africa v National Panasonic Company (Parow Factory) 1991 (2) SA 527 (C) at 530B-D, 532B-533B.


22 Chokolingo v Attorney-General of Trinidad and Tobago [1981] 1 All ER 244 (PC) at 248h-249a.


27


law to do so amounts to a gross irregularity, which can always be ventilated on appeal.23 In these circumstances, and given the inherent undesirability involved in the duplication of proceedings, the incurrence of unnecessary costs (both for litigants and the State) and the use of scarce judicial resources, it is not at all clear why the court a quo in this matter did not at least consider the exercise of its power in terms of section 22(2). It is important that in any future invocation of section 22, the High Court should give careful consideration to its powers under that provision.


[39] The elements of the principal application - and their development before us in written and oral argument - comprise the following main attacks. The first is that the first respondent's appointment as an acting judge was (as it was stated in the heads of argument) "tainted with irregularities and failure to observe peremptory provisions of the law and the Constitution".


[40] Section 120(5) of the Constitution reads:


"Appointment of Judges of High Court 120 ...........

5) If the office of any puisne judge is vacant or if any such judge is appointed to act as Chief Justice or is for any reason unable to perform the functions of his office or if the Chief Justice advises the King that the state of business in High Court so requires, the King, acting in accordance with the advice of the Judicial Service


23 State v Moodie 1962 (1) SA 587 (A).


28


Commission, may appoint a person who is qualified to be appointed as a judge of the High Court to act as a puisne judge of that Court.


Provided that a person may act as a judge notwithstanding that he has attained the age prescribed for the purposes of section 121(1) of this Constitution".


[41] The complaints by the appellant in this regard were essentially that the first respondent was appointed specifically to try a particular case, and not generally; that he was appointed while he held the office of Judge Advocate; and that the constitutional requirement that the Chief Justice advise the King in terms of section 120(5) was not satisfied.


[42] The undisputed evidence (in the form of an affidavit by the Attorney-General, and a confirmatory affidavit filed by the Chief Justice himself) is that the Chief Justice formed the opinion that "a judge of stature from outside the country should be appointed to preside solely in this matter". It is clear that this opinion was prompted by the anticipated scale, duration and complexity of the trial of the appellant, considerations which have indubitably been borne out by events. Reference is made on the papers to other situations in the past in Lesotho where acting judges have been appointed to deal with one matter only. Nor is the phenomenon confined to Lesotho. Article 82(3) of the Constitution of Namibia is the comparable provision to section 120(5) of the Constitution of Lesotho. It provides:


"At the request of the Judge President, the President may appoint Acting Judges of the High Court from time to time to fill casual vacancies in the


29


Court, or to enable the Court to deal expeditiously with its work".24


There is, in my view, clearly no limitation in section 120(5) on the appointment of a suitably qualified person to act as a judge only for the purposes of particular litigation. {It would, of course, be an entirely different state of affairs if an appointment was made for the purposes of securing a particular result, or otherwise undermining the primary constitutional guarantees regarding the independence of the Court and the right to a fair trial to which I have already referred). The objection to the appointment of Cullinan AJ to deal only with the appellant's trial is accordingly without substance.

[43] The next objection is that Cullinan AJ was appointed an acting judge while he held the remunerated office of Judge Advocate. The respondents' answer is the provisions of section 14 of the High Court Act25 which provides:


"14 1) No Chief Judge or Judge shall accept or perform any other office or place of profit or emoluments not authorised by law.


2) Sub-section (1) shall not apply to a Judge who may be temporarily appointed under section 3(4)".


Such an appointment, for the single purpose of adjudicating a dispute between a judge of the High Court of Namibia and the Government of Namibia, was recently made in that country: Hannah v Government of the Republic of Namibia 2000 (4) SA 940 (LC).


25 Act 5 of 1978.


30


[44] The appellant sought to meet this by contending that section 14(2) applies to holders of profit outside government service only, such as private legal practitioners. This is not so. The language of section 14(2) is both clear and unqualified, and it is not permitted to imply words into a statutory provision unless they surmount a double hurdle: the implication has to be a necessary one in the sense that without it effect cannot be given to the statute as it stands; and the suggested provision will not be implied where considerable uncertainty exists about its nature and scope, for it must be precise and obvious.26


[45] Then the appellant contends that the requirements of section 120(5) of the Constitution were not met, because - he asserts - the Chief Justice did not advise the King that the business of the court required the appointment. No positive evidence was adduced by the appellant in this regard, other than a letter which the appellant alleges he obtained from what he terms "private investigators". The letter in question is in fact signed by the Chief Justice as the chairman of the Judicial Service Commission; it refers to a meeting held on 23 May 2000 when


"the Judicial Service Commission requested me to inform His Majesty, which I have the honour now to do, that the Commission advises His Majesty to appoint Mr Justice B.P. Cullinan as acting puisne judge of High Court [sic]. This would enable him to preside in the Masupha Sole v LHDA case [sic] due


26 Rennie NO v Gordon and Another NNO1988 (1) SA 1 (A) at 22E-G. and further authorities there analysed per Corbett JA.


31


to be heard during June 2000.

The acting appointment is necessitated by the fact that the record for this case is bulky and the case itself so much involved that the trial is expected to be long".


[46] The Chief Justice is, in terms of section 132(1)(a) of the Constitution, ex officio chairman of the Judicial Service Commission, and it is apparent that he gave His Majesty the King the advice. That he did so arising from a meeting of the Judicial Service Commission and in a letter in which he signs himself as the chairman of the Judicial Service Commission does not negate this.27


[47] A further major area of attack by the appellant related to the fact that Cullinan AJ received remuneration which was specially agreed. The facts in this regard are that, given the anticipated demands of the trial, endeavours were made to obtain the services of a senior retired judge to preside. Three other persons in this category were approached, but in the event were unable or unwilling to take up the appointment. Cullinan AJ was approached, but also indicated some diffidence about accepting the acting appointment. Ultimately however, he indicated his willingness; his remuneration was agreed at a level significantly higher than that of the


27 cf. Deitch v Smuts NO and Others 1939 TPD 58, an instance where the Governor- General of South Africa appointed an acting judge, purporting to act on the advice of an unspecified number of ministers. The Full Bench of the Transvaal Provincial Division held that the appointment was prima facie made on the advice of the Executive Council "inasmuch as Ministers are members of the Executive Council and it is not essential that such advice should be tendered at the formal meeting of the Council".


32


ordinary salary of a permanent judge, but at less than half the usual daily fee of senior counsel.


[48] Two points require to be made immediately in this regard. The first is that on the "double-reasonableness" test to which reference is made in paragraph [22] above, the relevant perception for its application is a perception based on a balanced view of all material information. The inquiry relates to how a well-informed, thoughtful and objective observer rather than a hypersensitive, cynical and suspicious person would view the facts.28 The second observation is that the position of acting judges is not narrowly to be compared with that of permanent appointments. In the nature of things, acting judges retain in most instances certain professional ties; they expect to return to their other lives; and they enjoy no tenure. As this court has previously expressed itself:


"....the independence of an acting judge is not so jealously guarded as that of an ordinary judge. One important distinction is that an acting judge need not be appointed for any specific period and that his appointment may be revoked at any time if he has been appointed in that way".29


As the Appellate Division of South Africa has similarly remarked,

"But during that period [i.e. of the temporary appointment] the acting judge


28 Van Rooyen and Others v The State and Others, General Council of the Bar of South Africa Intervening 2002 (5) SA 246 (CC) at 273B.


Law Society of Lesotho v The Prime Minister and Another supra at 136G-1


33


is as completely free from executive interference as an ordinary judge. Looking at such appointments from an idealistic, but, I think, extreme point of view something may be said against them on the score of lack of independence of the appointees. But such criticisms are somewhat fanciful and we have to weigh against them the very practical necessity of such appointments in the interests of good order and government".30


[49] In the present case, the reasonable and informed observer, not inclined to suspicion and imbalance, would know that Cullinan AJ had had a distinguished judicial career, having served in Fiji and Zambia, and that he had, as counsel for the respondents pointed out, during his own ten years as Chief Justice struck down legislation of the military government as being unconstitutional. The observer would know from the facts to which I have referred that in no sense had he been handpicked for the task, but that three other senior retired judges had also been approached. The observer would know, too, that the trial was likely - as indeed transpired - to impose great burdens on a presiding officer; that Cullinan AJ would be obliged, for the duration of the trial, to live away from the home he had made in his retirement; and that the remuneration agreed was considerably less than that which senior counsel in private practice would normally charge. So viewed, these facts would not in my assessment surmount "the double-reasonableness" test.


[50] But the appellant also drew attention to the fact that remuneration was the 30 Rex v Deitch 1939 AD 178 at 186.


34


subject of communications between Cullinan AJ and the Attorney-General.


This involved the contention that a letter by the first respondent to the Principal Secretary of the Ministry of Justice relating to the recovery of airfares and dealing with a defective cellphone "suggests that the [Attorney-General] was privy to discussions that were taking place between [Cullinan AJ] and the Ministry of Justice." There is no evidential support for the exaggerated inference drawn.


[51] Nor is there substance in the contention (as I understand it) that the appointment of Cullinan AJ is vitiated by the fact that he was appointed on a basis which was agreed, not statutory; which entailed payment at a rate significantly higher than a High Court Judge's salary; and which was tax-free in his hands. We were shown no statutory provision which prohibits this: the Statutory Salaries Order, 1972 does not define "judge" as including an acting judge (as comparable legislation does) and in its terms appears to apply only to permanent appointees. But even if it were to be assumed, for purposes of the argument, that the agreed emoluments were at variance with a statutory requirement, this fact would not - to the reasonable observer, viewing the matter without undue suspicion, in the way the authorities require - give rise to a perception of a lack of impartiality, in the full factual setting I have described in paragraph [49].


[52] In concluding, in relation to the principal application, reference must again be


35

made to the delay of the appellant in seeking recusal, in this instance of Cullinan AJ. His own affidavit discloses that from the outset of the trial he was aware of at least some of the grounds on which more than a year later he sought to rely in contending for the disqualification of the trial judge. His contention that he nonetheless only became aware of all the matters relating to Cullinan AJ's appointment and remuneration shortly before the trial ended, is open to doubt. It was not, however, effectively refuted on the papers. Had it been established that the appellant or his legal representative was substantially aware at a significantly earlier stage of the grounds on which he based the principal application, then the considerations and authority set out in paragraph [19] would have had application in this context too.


[53] For these reasons, in my view the application for the granting of the "notice of constitutional motion" is also to be dismissed.


[54] The appeal is accordingly dismissed with costs, including the costs of two counsel.


GAUNTLETT JA


36


I agree


GROSSKOPF JA


I agree


PLEWMAN JA


I agree


SMALBERGER JA


I agree


MELUNSKY JA


37


Counsel for the appellant: G.S. Mdhluli, with him K. Sello (instructed by

E.H. Phoofolo & Co)


Counsel for the second,

fourth, fifth, sixth and

seventh respondents: H.P.ViljoenSC,withhimH.M.Raubenheimer

(instructed by Webber Newdigate)


Date of judgment : 14 April 2003.


LIVERSIDGE

v.

ANDERSON:

THE DISSENTING JUDGMENT


1. This paper is about a dissenting judgment delivered in London, in the House of Lords more than 60 years ago. It was a judgment given during the Second World War when Great Britain was embattled and under attack. It concerned the detention in wartime of a not particularly important individual. Yet after 60 years it still resounds. Indeed, it is difficult to think of any comparable judgment in England in the 20th or, for that matter, the 19th century. What has made it memorable? There are many great judgments to be found in the English Law Reports, including of course dissenting judgments. They are often marked by originality of thought, elegance of language and compelling logic. This judgment has something else - a passionate indignation expressed with unequalled, some would have said unrestrained, force. That in itself makes it memorable.


2. The other reason that it remains so vividly in the minds of English (and some Commonwealth) lawyers is that it confronted an issue which in all our various countries has remained with us: the balance between the state's right and need to preserve itself in times of danger and the fundamental right of individual liberty, and more narrowly, the limits of the power of executive detention in a time of national emergency.


3. In 1998, in a dissenting opinion in the Privy Council, Lord Steyn said-


1


"A dissenting judgment anchored in the circumstances of today sometimes appeals to the judges of tomorrow. In that way a dissenting judgment sometimes contributes to the continuing development of the law".1


This as we shall see has been the fortunate destiny of the dissent

in Liversidge v. Anderson.


4. The judge who gave the dissenting judgment was Lord Atkin, then aged 74. More about him later. The case, which reached the House of Lords as the final appeal court, related to a regulation made on the eve of the outbreak of war under the Emergency Powers (Defence) Act of 1939. This regulation which became notorious as Regulation 18B gave the Home Secretary power to order the indefinite detention without trial of among others British citizens. In its original form (and this must be noted) the regulation provided that "The Secretary of State ... if satisfied with respect to a particular person that with a view to preventing him from acting in any manner prejudicial to the public safety or the defence of the realm, it is necessary to do so ..." may order the detention of that person. The unfettered power thus given to the Home Secretary caused considerable disquiet when the Regulation was placed before Parliament, and led to a vital amendment to the Regulation. The final paragraph of Regulation 18B now read -

If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to


1 Fisher v. Minister of Public Safety (Bahamas) [1998] AC 673, 686.


2


exercise control over him, he may make an order against

that person directing that he be detained.

Thus, not only were the grounds for the detention more closely defined, but it was no longer sufficient for the Home Secretary to be merely satisfied that it was necessary to detain a person: he had to have reasonable cause for his belief.


5. These powers were not intended or needed for the internment of enemy aliens - that could be done under the common law of war. Regulation 18B was there for use against British citizens. The detention could be indefinite. There was to be no court hearing but there was to be an Advisory Committee with which detained persons could lodge objections to their detention. The Chairman was not a judge but was a senior lawyer. Detainees could appear in person before the Committee and were entitled to be told by the Chairman in concise form the grounds on which they could be detained. The Committee would recommend to the Home Secretary either release or continued detention. The Home Secretary was not bound to follow the recommendation.


6. Regulation 18B began to be extensively used from May 1940. At that time the German Army had defeated France, and had largely defeated the British forces in France and Belgium. Britain was under air attack and there was a real prospect of an invasion from across the Channel. There was a general fear of spies and Fifth Columnists. Large numbers of enemy aliens were interned, including numbers of refugees from Nazism, and also many hundreds of citizens under Regulation 18B. Many of these were British Fascists, including their leader, Sir Oswald Mosley. But


3


others with no such political connections were also caught in the 18B net. One of these was Robert Liversidge.


7. Liversidge was the British-born son of a rabbi. His family name was Perlzweig. When he was still in his mid-teens he worked for two share-dealers, one of whom was convicted of fraud and sentenced to imprisonment. Although young Perlzweig was not charged a police file was opened in his name. He then went abroad for many years and in Canada took the name of Liversidge, which was the name of his married sister, and acquired a Canadian passport on the basis of a false statement that he was born in Canada. Some years later he returned to England and became a successful businessman. On the outbreak of war, then aged 35, he volunteered for the RAF and was commissioned. He became a well-regarded intelligence officer until his arrest at the end of April 1940. On 26th May the Home Secretary signed a detention order under Regulation 18B. Liversidge, still in detention, issued proceedings against the Home Secretary who had signed the order, Sir John Anderson, for damages for false imprisonment. Liversidge's lawyers simply alleged that he had been wrongfully imprisoned. The equally simply defence was the order signed by Sir John Anderson. In that order the Home Secretary had stated "Whereas I have reasonable cause to believe Jack Perlzweig alias Robert Liversidge to be a person of hostile associations and that by reason thereof it is necessary to exercise control over him. Now, therefore I ... hereby


2 The details of Liversidge's career and service are taken from A.W. Brian Simpson, In the Highest Degree Odious: Detention without Trial in Wartime Britain (Clarendon Press Oxford 1994), rightly described by an American judge as "that rare combination; a work of exhaustive scholarship and a splendid read".


4


make the following order: I direct that the above-mentioned Jack Perlzweig alias Robert Liversidge be detained". That was all.


8. Liversidge's lawyers were, of course, not satisfied with this. They applied under the ordinary rules of legal procedure for particulars of the grounds on which the Home Secretary had had reasonable cause to believe that Liversidge was a person of hostile associations, who needed to be controlled. Their application was refused by a Master of the Supreme Court (a junior judicial officer) and then successively on appeal by a High Court Judge and by the Court of Appeal. The further appeal against this refusal came to the House of Lords in September 1941. So the great case of Liversidge v. Anderson3 was in form concerned with an application for further and better particulars of a pleading


9. The appeal was heard, as is customary, by a panel of five Law Lords. The presiding Law Lord was Viscount Maugham, a former Lord Chancellor. Atkin was the next in seniority.4 All five were senior judges of great experience and acknowledged ability. Liversidge was represented by D.N. Pritt Q.C. whose prominence in the Communist Party had not prevented him from establishing a leading practice at the English Bar. The Attorney-General, Sir Donald Somervell Q.C, appeared for the Home Secretary. Each was assisted by well-known junior counsel. Now I should say a little more about Lord Atkin.


3 [1942] AC 206. Judgment was given on 3rd November 1941.


4 The other three were Lords Macmillan, Wright and Romer.


5


10. Atkin at the Bar had practised in the field of commercial law which in England meant largely cases about shipping and marine insurance. He was made a judge in 1913 and for the most part sat in the commercial court. He was promoted to the Court of Appeal in 1919, and to the House of Lords in 1928. He was essentially a private man and had taken no active part in politics. Outside the courts his principal interest in anything of a public nature was the issue of the disestablishment of the Church in Wales. As a judge, apart from his contributions to commercial law, he had given innovative judgments in other fields. In particular he had set the laws of negligence on a new path, along which it still travels.5 He was certainly not known as a "great dissenter". On the contrary he was usually able to carry his fellow judges with him. His judgments were often marked by arresting and illuminating turns of phrase. And on some occasions he was able to give substance to the truism that the English courts were the protectors of individual liberty. In 1923 he was a member of a Court of Appeal which unanimously granted habeas corpus to an Irish rebel who had been arrested in England and deported to the Irish Free State where he was held in prison. The court rejected the Home Secretary's assertion that the man was no longer under his control.6 In 1931, in an appeal to the Privy Council from Nigeria, he wrote the judgment which, reversing the courts of the colony, granted habeas corpus to a local chief. He said, in words which have been frequently quoted,

"In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a


5Sec Donoghue v. Stevenson [1932] AC 562.


6 R. v. Home Secretary, ex parte O'Brien [1923] 2 KB 361.


6


British subject except on the condition that he can support the legality of his action before a court of justice. And it is in the tradition of British justice that judges should not shrink from deciding such issues in the face of the executive".


As we shall see, his judgment in Liversidge v. Anderson embodied

that tradition.


11. The issue in Liversidge v. Anderson can be simply stated. Did the words "If the Secretary of State has reasonable cause to believe" require the Secretary of State to satisfy the court that there was, objectively, reasonable cause for his belief? Or, as the Attorney-General argued, was the Secretary of State's own assertion of his belief, as stated in the order of detention, a sufficient answer to the claim of wrongful imprisonment? Mr. Pritt argued that the existence of reasonable cause for the Home Secretary's belief was a limit on his power, and a condition of its exercise. The Attorney-General submitted that whether there was ground to suspect that a person might be disposed to help the enemy in wartime was a question entirely for the executive, into which it was not appropriate for a court to enquire.


12. The Attorney-General's argument was accepted by the majority of the Law Lords. The essence of all four majority judgments may be found in the judgment of Viscount Maugham. First, he refused to apply the general principle that legislation dealing with the liberty of the subject should be construed, if possible, in favour of


7 Eshugbayi Eleko v. Officer Administering the Government of Nigeria [1931] AC 662, 670.


7


the subject. That, he said, had no relevance to an executive measure involving the safety of the state. While accepting, perhaps somewhat grudgingly, that the words "has reasonable cause to believe" could mean that there must in fact be reasonable for the belief, he denied that that was the only meaning of the words. He said that

"if the thing to be believed is ... essentially one within the knowledge of AB or one for the exercise of his exclusive discretion, the words might well mean if AB acting on what he thinks is reasonable cause (and, of course acting in good faith) believes the thing in question".8


And that he held, was what the words meant in Regulation 18B. Those responsible for the regulation, he said, could never have intended the action of the Secretary of State to be subject to the control of a judge in a court of law. The Secretary of State might indeed be acting on highly confidential information. As to the fact that the requirement of reasonable cause had not appeared in the original regulation and had been deliberately introduced into the amended regulation, the change of words should not be taken to import a change of meaning. The probable reason for the introduction of "reasonable cause" was to remind the Secretary of State that in taking the serious step of depriving a person of his liberty for an uncertain period he must be sure to consider whether there was reasonable cause for his belief.9 (The unstated corollary of this explanation of the words "has reasonable cause" is that without this reminder the Secretary of State might not have carefully considered whether there was reasonable cause for his


8 [1942] AC at 220.

9 [1942] AC at 223-4.


8


belief.) As to the question whether there was any onus on the Secretary of State to prove that he held that belief, the order itself was prima facie proof: it was enough for him to produce the signed order.10 In this regard all the majority judges emphasised the high office held by the Secretary of State. As Lord Macmillan put it, he is "one of the high officers of State who, by reason of his position, is entitled to public confidence in his capacity and integrity".11

In addition, some of the majority Law Lords agreed with what was perhaps the Attorney-General's best point, namely that "if recourse could be had to the court it would have been unnecessary to set up the Advisory Committee".12

So Liversidge was held not to be entitled to the particulars which he sought, which meant that the validity of the detention order was confirmed and his action failed.


13. Lord Atkn's approach was completely different. He began by stating the significance of the case.


"The matter is one of great importance both because the power to make orders is necessary for the defence of the realm, and because the liberty of the subject is seriously infringed, for the order does not purport to be made for the commission of an offence against the criminal law. It is made by an executive minister and not by any kind of judicial officer, it is not made after an inquiry as to facts to which the subject is party, it cannot be reversed on any


10 [1942] AC at 224-5.

11 [1942] AC at 253.

12 See [1942] AC at 255, per Lord Macmillan; at 267 per Lord Wright.


9


appeal, and there is no limit to the period for which the

detention may last."


He set out the words of the regulation. These were, he said, simple words which gave only conditional authority to the minister to detain any person, the condition being that he has reasonable cause for the belief which leads to the detention order. The effect of the majority judgment on the other hand, was that the minister had been given a complete discretion, an "absolute power which" said Lord Atkin "as far as I know has never been given before to the executive". He therefore would not apologise "for taking some time to demonstrate that no such power is in fact given to the minister by the words in question". He then turned to the language of the regulation. The words "if A has something", he said, do not and cannot mean "if A thinks he has something". "If A has a broken ankle" does not mean and cannot mean "if A thinks he has a broken ankle". The requirement of reasonable cause for a belief had been accepted in innumerable legal decisions for many generations as an objective fact to be proved.


14. Lord Atkin then proceeded to give some 30 examples of this taken from various branches of the law including especially the common law and statute law relating to powers of arrest. He then gave as many examples in the Defence Regulations themselves where (in relation to powers other than detention) the Secretary of State was given an unlimited discretion subject only to good faith, a very different form of words were used. Finally he gave no fewer than 23 further examples from the Defence Regulations where the requirement of having a reasonable belief could not possibly be anything but objective. Nor could grounds of expediency justify


10


what he called "the hitherto unheard of subjective construction". There was no reason why a court should not be in a position to examine the grounds for the Secretary of State's belief. As to the Advisory Committee, that was an inadequate safeguard when set against a judicial hearing.13


15. The followed the passage in the judgment which has found its way into the anthologies of legal literature.

"I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive. Their function is to give words their natural meaning, not, perhaps, in war time leaning towards liberty, but following the dictum of Pollock C.B. in Bowditch v. Balchin, cited with approval by my noble and learned friend Lord Wright in Barnard v. Gorman: "In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute." In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments


13 [1942] AC at 243.


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which might have been addressed acceptably to the Court of King's Bench in the time of Charles I. I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister. To recapitulate: The words have only one meaning. They are used with that meaning in statements of the common law and in statutes. They have never been used in the sense now imputed to them. They are used in the Defence Regulations in the natural meaning, and, when it is intended to express the meaning now imputed to them, different and apt words are used in the regulations generally and in this regulation in particular. Even if it were relevant, which it is not, there is no absurdity or no such degree of public mischief as would lead to a non-natural construction. I know of only one authority which might justify the suggested method of construction: " 'When I use a word/ "Humpty Dumpty said in rather a scornful tone, 'it "means just what I chose it to mean, neither more nor" less.' 'The question is,' said Alice, 'whether you can "make words mean so many different things.' ' The question "is,' said Humpty Dumpty, 'which is to be master - that's "all."' ("Through the Looking Glass," c. vi.) After all this long discussion the question is whether the words "If a "man has" can mean "If a man thinks he has." I am of opinion that they cannot, and that the case should be decided accordingly."14

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16. Accordingly, Lord Atkin found that Liversidge was entitled to the particulars which his lawyer's had requested. This was not a mere matter of pleading. It was based, said Lord Atkin, on a much broader ground, indeed on a pillar of liberty,

"in that in English law every imprisonment is prima facie unlawful and that it is for a person directing imprisonment to justify his act"15


17. Even in the serious state of the war in November 1941 Lord Atkin's judgment made headlines in England. It made him, to his extreme distaste, at least briefly, a public figure. Generally, his

-judgment evoked admiration in the press and among lawyers. But his fellow Law Lords and the judges who had found for the Home Secretary in the lower courts were extremely put out by the judgment. In England disagreements between judges, however fundamental, are expressed in terms of great, even exaggerated, courtesy. It is not hard to see why Lord Atkin's judicial colleagues should have taken offence. The judgment as a whole but especially the passages which I have quoted, including the quote from Alice Through the Looking Glass, showed some contempt for the reasoning of his colleagues and even for their intellectual honesty. The description of judges who were more executive minded than the executive might have been read as an accusation, if not of sycophancy, at lest of undue deference to authority. The sting was made even sharper by the reference to "arguments which might have been addressed acceptably to the Court of King's Bench in the time of Charles I." Anyone with a


14 [1942] Ac at 244-5.

15 [1942] AC at 245.


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knowledge of English legal history would have at once thought of Darnel's Case16 where King Charles I had imprisoned five knights who had refused to contribute to his funds. To a writ of habeas corpus the King had made a reply which does bear a remarkable resemblance to the Home Secretary's reply to Liveridge, namely that the knights were detained "by special order of our Lord the King". In 1627 that argument was put up by a sycophantic Attorney-General and accepted by a deferential court.


18. By all accounts Lord Atkin was a firm-minded and decisive judge, but never combative or intentionally rude. Nonetheless, his judgment and the publicity it achieved stung Viscount Maugham into the unprecedented actions of writing to The Times and making a statement in the House of Lords defending the majority judgments.17 Atkin did not respond, and in due course the public controversy died away. Academic debate continued.18


19. Some academic lawyers defended the majority judgment. One was Professor A.L. Goodhart, professor of jurisprudence at the University of Oxford, a very distinguished jurist but inclined to be respectful to authority.19 He argued that the requirement of reasonable cause meant only that the Home Secretary had to consider those cases with particular care. He went even further. He maintained that the words "if A has a broken ankle" mean "if A thinks he has a broken ankle" and if a doctor were to say "A has


16 (1627) 3 State Trials 1.

17 The letter and the statement are to be found in Geoffrey Lewis, Lord Atkin (Butterworths, London, 1983) at pp. 143-146.

18 For a full account of the case and the controversies surrounding it see R.V. Heuston, Liversidge v. Anderson in Retrospect (1970) 86 LQR 33: (1971) 87 LQR 161.

19 His note on the case is at (1942) 58 LQR 3.


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a broken ankle" that means only "I think A has a broken ankle". As I said, a distinguished lawyer, but plainly one who had never handled a personal injury case.2 This attempt to defend the majority judgments was savaged by an equally distinguished Oxford lawyer, Dr. C.K. Allen. He said that, "the omniscience and omnipotence of Cabinet rank have seldom received so much deference" as they had from the majority in this case.21


20. Wherever the balance came down in those conflicts of opinion, the judicial verdict has gone to Lord Atkin. In England at least the majority judgments were soon distinguished out of existence. In 1951, the Privy Council, refused to regard Liversidge v. Anderson as a binding precedent.

In 1964 in the House of Lords, Lord Reid referred to Liversidge y. Anderson (i.e. the majority judgment) as a "very peculiar decision".24 And in 1980 in the House of Lords, Lord Diplock said that "the time has come to acknowledge openly that the majority in this House in Liversidge v. Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right."25 So Lord Atkin's judgment stands as the most celebrated and admired judgment of any English judge of the 20th century. The other judgments in the case

20 Professor Goodhart's conclusion, strange to modern ears was that Lord Atkin had placed undue emphasis on judicial review of administrative action.

21 C.K. Allen, Regulation 18B and Reasonable Cause (1942) 58 LQR 232.

22 It should be said that R.V. Heuston in the articles cited above, footnote 18, while admiring Lord Atkin's judgment, considered that given the powers of the Home Secretary and the circumstances of the time the majority decision was right.

23 Nakkuda Alt v. Jayaratne [1951] AC 66,76-77.

24 Ridge v. Baldwin [1964] AC 40,73.

25 R v. IRC ex parte Rossminster [1980] AC 952, 1011.


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have been forgotten save as the targets of Lord Atkin's eloquence.26


21. Is there still anything to be learnt from Liversidge v. Anderson? One must not overlook the comparatively narrow ground on which Lord Atkin's judgment was based. He could not, under the English judicial system, have refused to enforce a regulation, authorised by an Act of parliament, which gave a minister power in his sole discretion to detain any person indefinitely. The sole issue was whether or not the regulation had given such power to the minister, and that was what he himself called "a mere matter of construction". If there is one thing to be learnt it is that personal liberty is best protected by adhering closely to the words of any legislative restriction on that liberty and by refusing to go beyond those words. The majority adopted what is today called a "purposive construction", that is they speculated on what the legislators had had in mind when making the regulation. In this way they were able to circumvent the plain meaning of the words used. A final comment: in most of the judgments on Regulation 18B, both in the House of Lords and in the lower courts, the judges did not neglect to avow their devotion to the liberty of the subject,27 but gave it no weight in their judgments. Professor Simpson described this as "the traditional judicial humbug on the


26 It is not necessary to go so far as Dr. C.K. Allen (in the article cited in footnote 20) who recalled the Case of the Ship Money (1637) 3 State Trials 825, in which the judges were called on to consider whether Charles I had the power to levy money for defence without the authority of Parliament. The judges loyally found for the King. The lone (and courageous) dissentient said in his judgment, "No necessity, no pretence of danger can give this cause for the writ: for if the writ be against the common law, no pretence of danger can warrant it." (P. 1129.) Dr. Allen said that while Crooke J's words live in the memory of the law, "the voice of Chief Justice Finch" - who found for the King - "is choked with the dust of his own sycophantic sophistries."

27 Thus Lord Wright- "All the courts today, and not least this House, are as jealous as they have ever been in upholding the liberty of the subject" [1942] AC at 260.


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liberty of the subject."28 Lord Atkin by contrast actually believed in the liberty of the subject and where he could, he acted on his

behalf.


22. Today in the United Kingdom where there is a real fear of terrorist activities, administrative detention of persons suspected of being engaged in or giving assistance to such activities, is a reality. The validity of such measures can now be tested against the European Convention of Human Rights, now incorporated into English law. The final word on this has not yet been spoken by the English courts. Whatever the judges finally decide I do not doubt that they will remember Lord Atkin's words and, perhaps the historical dustbin to which those who disagreed with him have been consigned. They may also remember the words of Winston Churchill, which provided Professor Simpson with the title of his book-

"The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgement of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi or Communist."


Sir Sydney Kentridge Q.C.

10th December 2004

Johannesburg


28 Op. Cit. n. 2, page 364.


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