Sole v Cullinan, N O and Others (Constitutional Case No.3/2002 )

Media Neutral Citation: 
[2003] LSHC 19
Judgment Date: 
28 January, 2003

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CONSTITUTIONAL CASE NO.3/2002

IN THE HIGH COURT OF LESOTHO


In the matter between:

MASUPHA EPHRAIM

SOLE APPLICANT

and

BRENDAN PETER CULLINAN, N.O. 1st Respondent

JUDICIAL. SERVICE

COMMISSION 2nd Respondent

DIRECTOR OF PUBLIC

PROSECUTIONS 3rd Respondent

MINISTER OF JUSTICE AND

HUMAN RIGHTS 4th Respondent

PRINCIPAL SECRETARY,

MINISTRY OF JUSTICE AND

HUMAN RIGHTS 5th Respondent

MINISTER OF THE PUBLIC

SERVICE 6thRespondent

ATTORNEY GENERAL 7th Respondent


Held at MASERU:


Coram: LEHOHLA CJ.

RAMODIBEDI J. (A.)

GUNI J.


JUDGEMENT


GUNI J.


This is an application for recusal of the Honourable Chief Justice and Honourable Ramodibedi J.(A.) The panel of three judges; consisting of the above named and Guni J, sat on the 10th December 2002, to hear the Constitutional Case NO.3/2002. At that hearing, Mr. E.H. Phoofolo -attorney for the applicant, made from the bar an application for the postponement of the hearing of that Constitutional Case NO.3/2002. The Counsel for the 2nd 4th 5th and 7th respondents who had filed opposing papers in the case that was due to be heard, Mr. Viljoen SC assisted by Mr. Raubenheimer SC and Mr. Molyneaux-attorney of record for those respondents, resisted that postponement. They were all present before court where they had come specially tor the hearing of that matter, as per prior arrangement by all the parties concerned. After the hearing of that application for postponement, the court adjourned briefly to consider the matter. Shortly thereafter it resumed. The Chief Justice


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announced the decision reached by the court. He gave verbally the reasons for the said dismissal and added that written reasons would be given later.


The court immediately proceeded to hear the arguments by counsel in respect of the main application. -Constitutional Case NO.3/2002. The court invited Mr. E.H. Phoofolo for the applicant to address it. He declined, comending that he had nothing further to add to the contents of the papers filed of record on behalf of the ;applicant Mr. Viljoen SC thereafter addressed the court on behalf of the respondents. Mr. Sole and Mr. Phoofolo who was sill representing him after his refusal to address the court still remained together while the counsel for those respondents who opposed that application addressed the court. After that hearing, that matter was adjourned for judgment to the 17th December 2002.


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On 12th December 2002, this present application for the recusal of the two Honourable Judges as members of the panel that heard that Constitutional Case NO.3/2002 was filed with this court, with the prayer that it must be heard on the 13th December 2002. On the 13th December 2002, when that matter for the recusal of the two Honourable members of the panel of Judges, was called to be heard as requested, the pleadings were not yet completed. 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.


In my view, there are two main questions which this Court must answer in order to arrive at an appropriate conclusion in the determination of this application for the recusal of the two Honourable Judges. Firstly, on what grounds does this applicant seek the recusal of the two Honourable judges? Secondly, when should such an application for recusal be made.


I shall deal first with the grounds for the application for recusal, as set out in the application's Founding Affidavit. At paragraph 5-line 2 - 3 of his founding affidavit, the applicant alleges that the two Honourable Judges whose recusal he seeks were totally biased in favour of (his) opposition (my underlining). This is a very grave insult indeed, if it is found to have been made wilfully. R.V. SILBER 1952 (2) S.A. 475 (A). The second ground is that Mr. Justice Ramodibedi is the judge of the Court of Appeal. As such he is not entitled to sit in the High Court. Again Mr. Justice RAMODEBEDI presided in civil trial in which this applicant was a defendant. At the end of the trial Mr. Justice RAMODIBEDI found against the defendant. On that ground Mr. Justice RAMODIBEDI should not be part of the panel presiding over this matter


The applicant in his affidavit at paragraph 5 from line 6-13 has made examples of what made him come to make


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the allegation that "they went all out to assist the opposition in the submissions". His first example is that, "


  1. Honourable Judge Ramodibedi of the Court of Appeal expressed the view that this application (he must be referring to the one where he challenges the competency of the acting judge who presided over his trial) should have been made before I pleaded at the trial that it was too late to make it after I have been convicted.'


  1. "Honourable Chief Justice expressed the view that I should have taken the court into confidence by informing it where I had obtained a correspondence to His Majesty from, as it was not directed to me. That this is an indication that I did not come to this Honourable Court with clean hands".


These two examples which this applicant has given, seem to me, to be the anchor of his complaint. He goes on to attack the Chief Justice as regards the remarks the Chief Justice made concerning the integrity and eminence of the former Chief Justice who presided over this applicant's trial. To these two remarks the applicant who avers that he never suggested otherwise, appears to be not impressed when these were drawn to his attention. When the competency of the judge who presided over his trial is questioned by him, it


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was very important that those qualities of that judge are drawn to his attention.


The applicant in the Constitutional Case NO.3/2002, was challenging the competency of the judge who presided over his trial. It is very material in the application of that nature to establish when exactly it occurred in the mind of the accused that he is not being tried before a properly continued forum. It must be further established when exactly did he decide to take an appropriate action for the rectification of the defect he has recognised in the formation of the forum before which he was tried. The Court was correct to direct that enquiry to the parties and seek clarification in order to enable itself to arrive at an adequately informed decision. The applicant and his attorney had just placed the application which raised issues as to when the applicant might have become aware that he was not going to be tried properly or fairly. The applicant and his attorney did not only decline to address the Court,


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but they had also failed to file heads of argument or provide theof authorities on which they rely, as requested by the other party and the Court.


Having declined to file any heads of argument or to provide the list of authorities to support their application, and having refused to subject themselves to any questions to clarify any points raised in their papers, the applicant and his attorney put the counsel for the respondents in an awkward position. He was answering the queries and inquiries raised on their own papers and those of the applicant. This position was precisely of the applicant's own making. The respondents' counsel was the one assisting the court to find answers it required. It is not only unfortunate but it is mischievous for the applicant to allege that the judges "went all out to assist the opposition in its submission". It is not only a right for the party to address the Court. It is also a duty of the party to assist the Court to arive at the decision be it for or against that party.


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Applicant declined to exercise his right to address the Court and to discharge his duty to assist the Court. He is not entitiled to turn around and falsely accuse the Court of assisting the other party which endeavoured in every way possible to assist the Court by answering all queries and questions raised by the Court. When Mr. Viljoen was asked a question, he was not being assisted in the submissions he was making.


It is very hard to recall the exact words used by the Court when seeking clarifications on the points raised in the papers filed of record in the matter. The gist of the matter is that the Court felt a great need to have clarifications on the questions which it considered material for the determination of the case. Every body was taken by surprise when the attorney for the applicant declined to address the Court. It was unexpected. When he addressed the Court Mr. Viljoen SC gave the Court an opportunity to clear whatever doubts the Court might have formed when perusing the papers filed


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of record. He was exercising the right to address the Court, which is the right of every party. He was also fulfilling his obligation as the party to assist the Court to arrive at its decision. The Court is indebted to him for his assistance. He was not assisted in his submissions by the court. It is the Court which kept asking him questions. It is not correct that he was assisted by the Court in the making of his submissions.


In his papers before Court the applicant has consistently twisted the Chief Justice's comments or cited them out of context to suit his baseless wishes. For instance amongst his complaints levelled at the Chief Justice the applicant said the Chief Justice said he was lucky to have appeared before a judge such as judge Cullinan. This was deliberatly incorrect and therefore unfair because the Chief Justice had only indicated that owing to the congestion in the roll making it impossible to hear cases which were ready for hearing as far back as in 1994 the applicant was lucky to


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have had his case heard ahead of those and completed in 2002


The second illustration of the judges' alleged bias in favour of the respondents concerns the applicant's reliance for his application on the secret and confidential letter written by the Chief Justice to his Majesty. That letter is not written to the applicant. It was not written by him. He cannot rely on the contents of that letter without first drawing the court's attention to it by expressing his belief in the truthfulness of its contents. The applicant should have cloaked that hearsay with the usual expressions such as "I am informed by..... and I verily believe that information to be correct and true" etc. The none disclosure of his sources may invariably lead amongst other things to the conclusion that is was illegally and/or corruptly obtained. But the manner in which that letter was obtained was not the issue and could not be considered when determining the Case. It


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could not and it is not an indication of bias if the court enquired about how it came to be in his hands.


So the allegations by the applicant that the clarifications sought by the court and the remarks made in the process convinced him that the honourable judges who made those expressions were totally biased in favour of the opposition are false. There is no reasonable person that could have possibly come to that conclusion by listening to both the questions asked and answers provided. It is not only the question of absence of bias, no bias in those circumstances could possibly be perceived by any reasonable person.


Again in paragraph 6 of his founding affidavit the applicant charges that in the trial or Acres International the Honourable Chief Justice "relied fully on the decisions and rulings of the first respondent". Nothing can be further from (he truth. In any event this is no ground for the recusal of the learned Chief Justice in the context of this case where


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the issue is not the merits of the case as such but simply whether Judge Cullinan should have presided in the matter or not.


It is the right of a litigant to ask the judicial officer to recuse himself. R.V. SILBER (supra) page 481 - A. It is an important right which must be fully protected by the court provided it is exercised honestly. How can the court determine whether or not the applicant is honest and sincere when exercising his right to ask for the recusal.? The timing by the applicant as to when that application for recusal is made is very important in the determination of the applicant's sincerity and honesty.


In the instant case the application for recusal was made after the matter was heard, What is the purpose of this application at this stage.? Particularly when it emerged during the hearing of the main application that the Law Society was informed by the applicant and that it indicated


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its intention to intervene.? This question of recusal must have been discussed at length between the applicant and the Law Society for them to be able to make a decision as to what steps to take. Why was the application held over by this applicant, until after the hearing of the matter.?


What steps were taken? At what stage? By whom? Mr. Sello rose at the hearing of the case NO.3/2002 and indicated to the Court that he was instructed by the Law Society to represent it in that matter for intervention to ask for the recusal of the honourable Mr. Justice Ramodibedi J(A) Mr. Sello pointed out in court in the presence of this applicant and his attorney that he advised the Law Society against intervention on that ground and that the Law Society accepted his advice.


Even at the stage when Mr. Sello sat down the applicant and his attorney remained tight lipped regarding the making of this application for recusal. It has been said

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previously, that it is in the interest of justice that recusal application should be brought as soon as possible. LESOTHO ELECTRICITY CORPORATION V FORRESTER 1979 (2) LLR at page 440. This would be in pursuance of the principle that justice must be seen to be done. The applicant seems to have dealt with the question of recusal with other parties such as the Law Society outside the court for some time. The intimation to the respondents about heir intention to intervene and that the applicant accedes to their intervention was made timeously. The Law Society's failure la file their papers to intervene was explained by Mr. Sello and accepted by all parties concerned. How come the applicant had not up to that stage taken any steps to file that application for recusal?


The applicant hesitated or prograstinated to make and move the application for recusal. Why? The applicant alleges that he did instruct his attorney to move the application when Mr. Sello sat down, but his attorney


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refused. Any reference to the party includes his attorney with or without the advocate, in terms of our rules. HIGH COURT RULES (RULE 1) - Legal Notice N0.9 of 1980. The applicant therefore cannot hide behind "I instructed my attorney to rise and make the application but he refused!" The hesitations merely show the lack of honesty and sincerely in the making of this application. On this ground alone the application for recusal must fail.


There is another reason why the application for Mr. Justice Ramodibedi's recusal falls to be dismissed. It is that, while it is doubtless desirable that a Court of Appeal Judge be confined to the duties of that Court only, this Court does not think that this is the sole determining factor in the circumstances prevailing in this country in the context of the instant case. Five such circumstances require to be mentioned:-


  1. The. Court of Appeal holds only two sessions per annum namely in April and October respectively. To


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  1. insist that Mr. Justice Ramodibedi be confined to the work of the Court of Appeal only would necessarily mean that he would sit idle for ten months each year while continuing to draw a salary and, in the Court's view, that would be an untenable situation.


  1. Lesotho is a poor country and can therefore ill-afford the luxury of having one of its top judges sitting idle for ten months per year.


  1. In any event it is the view of this Court as a matter of fact that Mr. Justice Ramodibedi did not relinguish his oath as a High Court Judge on being appointed permanently to the Court of Appeal. In this connection it is necessary to have regard to Section 121(1) of the Constitution of Lesotho which reads as follows-

"121 (1) Subject to the provision of this Section, a person holding the Office of Chief Justice or other judge of the High Court shall vacate that office when he attains the prescribed age." (Emphasis added).


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in terms of subsection (8) thereof the prescribed age in question is the age of seventy-five years or such other age as may be prescribed by Parliament.


  1. There is no provision either in the Constitution or in any other law that prohibits Mr. Justice Ramodibedi hum performing dual functions as a Court of Appeal Judge and as a High Court Judge provided that he may not sit on appeal in matters which he decided as a High Court Judge.


  1. 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 Court of Appeal and those of the High Court he would nevertheless cease to be so entitled simply because he was made permanent judge of the Court of Appeal.


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This, in the Court's view, would simply defy logic and such absurdity cannot have been in the contemplation of the legislature.


The position of Mr. Justice Ramodibedi must be distinguished from that of the other Judges of Appeal who have never been and are not judges of the High Court of Lesotho. As such they may not exercise dual functions of both judges of Appeal and High Court Judges. They have only subscribed the oath of Judges of Appeal.


Regarding the complaint that Mr. Justice Ramodibedi presided in a civil trial in which the applicant was a defendant the latter conceded before this Court as indeed he was bound to that the civil case in question had nothing to do with Acres International. That case did not involve the bribery allegation which formed the subject matter of the applicant's criminal conviction.


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As was pointed out by the Honourable Mr. Justice Schutz A.J.A. (as he then was) in the matter of LESOTHO ELECTRICITY CORPORATION (supra) at page 454 "ordinarily matters of recusal are matters for the conscience of the judge concerned". The two honourable judges asked to recuse themselves in this matter do not believe that there are grounds for them to do so nor would it be in the interests of justice for them to do so. They are conscientious, honest, hard -working judicial officers. It would be out of character for them to jump at this opportunity and retire from the difficult and novel Constitutional Case merely because this applicant has asked them to do so. In fact at the stage when the application for their recusal was made, the job was already done. The judgement was ready and due to be delivered. At the time when this application of recusal was made, there and then after a shun adjourment, the applicant was told in court that this application was dismissed with costs and that reasons


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would follow. The aforegoing considerations constitute such

reasons.


K. J. GUNI

JUDGE


I agree


M. LEHOHLA

CHIEF JUSTICE


I agree


M. RAMODIBEDI

JUDGE


Delivered at Maseru this 28th day of January 2003


For applicant - E.H. Phoofolo

For respondent- 2nd, 4th, 5th 6th & 7th - Mr. Viljoen SC


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