Makhele v Commander- LDF and Others (CIV/APN/169/99)

Case No: 
CIV/APN/169/99
Media Neutral Citation: 
[2003] LSHC 85
Judgment Date: 
8 August, 2003

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CIV/APN/169/99

IN THE HIGH COURT OF LESOTHO


In the matter between:-

TSOLO JOHN MAKHELE Applicant

and

THE COMMANDER- LDF 1st Respondent

THE PRESIDENT - COURT-MARTIAL

CMW MABOLOKA 2nd Respondent

THE ATTORNEY GENERAL 3rd Respondent


JUDGMENT


CORAM : HON MR JUSTICE S.N. PEETE

DATE : 8th AUGUST, 2003


Headnote


Court-Martial - a court in terms of section 118 of the Constitution of Lesotho of 1993 subject to the provisions of section 24 (3) thereof. Attenuating effect of Court-martial to comply with the mandatory provisions of the Lesotho Defence Force No.4 of 1996 guaranteeing the right to legal representation (section 95 (2) and the right to challenge members of court martial to ensure impartiality (section 94 and 97). Section 104 civilianizing the court-martial procedures.


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Where the applicant, a second lieutenant in the Lesotho Defence Force, had been charged with disobedience to lawful order under section 51 of the Lesotho Defence Force Act No.4 of 1996 in that on a specified day he had refused to obey an order to stop wearing a maroon beret and to wear a green one, the Court-martial proceedings must accord with the provisions of Part IX of the Act and with principles of natural justice.


Held: That whilst the section 118 of the Constitution of Lesotho of 1993 provides for the independence of the judiciary and the courts including court-martial, on proper construction, the Lesotho Constitution "creates a particular legal regime for the military in general and courts-martial in particular. The full panoply of fundamental rights is expressly attenuated under section 24 (3) and (4) of the Constitution. The Courts-martial nevertheless must be impartial - but in the sense and to the degree appropriate to their inherent nature as a statutory tribunal as military, not civilian courts. Court-martial can function legally only within the parameters of the Lesotho Defence Force Act.


Held: That since the accused is entitled to be represented by counsel under section 95 (2) of the Act, denial or negation of this statutory right amounts to a fundamental irregularity under the Act justifying the setting aside of court-martial proceedings, more especially when read against background of suspected or apparent bias.

Held: That military discipline notwithstanding, the courts-martial should always conduct the proceedings firmly and fairly without exhibiting impatience which demonstrates any bias, apparent or real


Held: That a formal withdrawal of a charge before judgment by the prosecutor who has been duly appointed to conduct those proceedings has the legal consequences similar to those in a civil court. No written instructions from convening authority necessary. Accused ought to have been acquitted. Otherwise powers of a prosecutor would be nugatory if always subjected to doubt.


Held: Where fundamental irregularities before a court martial have occurred, domestic remedies need not be exhausted before an application for review is launched before the High Court. Sections


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109, 110, 111 and 113 do not oust the jurisdiction of the court where fundamental irregularity has occurred.


Held: Although there is generally no prescribed time limit within which review proceedings must be brought, it is clear that they must be brought within a reasonable time. What is reasonable will depend upon the particular circumstances of each case and the court in exercising its discretion to entertain the proceedings will take into the account the reasons for the lapse of time, injustice or prejudice to be suffered by each party. Rossouw vs Norton - 1950 (2) SA 1


Held: The delay must be reckoned from the time when the applicant knew of the final decision which he seeks to have reviewed. The law comes to the aid of the vigilant and not the slumberous - vigilantibus et non dormientibus lex succurrit - Hahbury, Laws of England - Vol. 14 page 641 para 1181) -Zuurbekon v Union Government- 1947 (1) SA. 514 at 533 -535).


Held: Where it is alleged that the application for review was not launched within a reasonable time, the court must in exercising its decision consider whether as a fact the proceedings were launched after an unreasonable lapse of time and, if the answer is in the affirmative, whether the unreasonable delay should be condoned which again is a discretion excuse. The first inquiry is a factual one. Where the issue of condonation then arises the court exercises a discretion -Stellenbosch Municipality v Director of Valuations - 1993 (1) SA 1; Setsokotsane Busdiens v Voorsitter - 1986 (2) SA 57.


Held: Regard being had to all circumstances especially the fact that the applicant, after making submissions to the Commander, did not know of the final decision to dismiss him from the LDF until the Legal Notice No. 100 was published, it cannot be said that the six months' delay before the launching the review application was unreasonable and that in view of the fundamental irregularities, the proceedings ought to be set aside along with all decisions made thereafter.

Held: Failure to address or put its mind adequately to the challenges made to the members of the court-martial itself was an irregularity.


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Quare: Whether dismissal even though permitted by the Act is commensurate with the misconduct alleged in charge.


The applicant was a commissioned officer holding the rank of Second Lieutenant in the Lesotho Defence Force. The undated Legal Notice No. 100 of 1998 reads as follows:-


"LEGAL NOTICE NO. 100 of 1998

Lesotho Defence Force (Removal of Officer) Notice 1998


I, KING LETSIE III, pursuant to section 21 (b) (c) and (e) of the

Lesotho Defence Force Act 1996 and acting in accordance with the advice of the Prime Minister, hereby terminate the commission of-


No. 5871 SECOND LIEUTENANT TSOLO J. MAKHELE


With effect from the 10th day of September 1998.

Letsie III

Date:............................. King of Lesotho"


This Legal Notice was promulgated in sequel to the court-martial proceedings convened against the applicant on the 9th September 1997. The charge sheet read thus:-


" Accused No.5871 Second Lieutenant Makhele of F2 Platoon in F company. A soldier of the Regular Force is charged with:


Disobedience to Particular Orders an offence arising out of Military Service contrary to section 51 (1) of Part VIII of the Lesotho Defence Force Act No.4 of l996.


In that upon or about the 25th day of August 1997 at or near Makoanyane Barracks in the district of Maseru


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the said accused being a person subject to military law under section 187 (1) (a) of the said Act, did wrongfully unlawfully intentionally without reasonable cause or excuse disobey any command given or sent to him personally i.e. he refused to use a green beret instead of a maroon beret which was the command given to him on the 25th day of August 1997 at about 9.15 hrs.


Lt S.N. LEFOKA COMMANDER OF F.CO."


Commanding Officer of the Accused

This charge which had been served upon the applicant at 11.23 am on the 8/9/97, had been preferred under Section 51(1) of the Act1. I should remark in passing that the charge was rather verbosely worded and omits what are in fact necessary words in Section 51 like "in such a manner as to show defiance of authority", and "lawful" to qualify the command given to the accused. A charge under section 51 of the Lesotho Defence Force Act should have, as far as it was possible, followed the wording of the section which creates an offence. In my view, the Legislature did not consider it necessary to use words "wrongfully", "unlawfully" "intentionally", and "without reasonable cause or excuse." These words were unnecessary but can however be severed without invalidating the charge. It was however necessary to allege "lawful command" and not just "any command". The offence that is created is disobedience to a lawful command, not any


command. The omission of the word "lawful" was a formal defect which could however be cured (without prejudice) evidence led at the trial. Section


1 Section 51 (1) of the Act reads as follows:


"(1) Any person subject to this Act who, in such manner as to show defiance of authority, disobeys any lawful command given or sent to him personally commits an offence and shall, on conviction be liable to imprisonment for a term not exceeding 2 years."


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158 of the Criminal Procedure and Evidence Act No.9 of 1981 reads as follows:-


"Defect in a charge cured by evidence


158. Whenever a charge in respect of any offence is defective for want of the averment of any matter which is an essential ingredient of the offence the defect shall be cured by evidence at the trial in respect of the offence proving the presence of such matter which should have been averred, unless the want of averment was brought to court before judgment. "


These discrepancies were prone to occur because it seems the court-martial was hastily convened first by Brigadier Thibeli on the 8th September 1997 and then by the Commander Lieutenant General Mosakeng on the same day [this last Convening Order was only served upon the accused on the 1/10/97 when the proceedings in the Court-martial were afoot!]


The Law


It may be important perhaps to restate, albeit briefly, the legal position regarding courts-martial in Lesotho.


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Under section 118 of the Constitution of Lesotho, the courts-martial are listed as being part of the judiciary of Lesotho in whom judicial power is vested2. Section 118 should however be read subject to the provisions of section 24 (3) which reads:-


"24. (3) In relation to any person who is a member of a disciplined force raised under a law of Lesotho, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any provisions of this chapter other than sections 5 (right to life) 8 (freedom from inhuman treatment) 9 (freedom from slavery and forced labour)


(4) In relation to any person who is a member of a disciplined force raised otherwise than as aforesaid and lawfully present in Lesotho, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter.


The Full Bench of the Court of Appeal of Lesotho in Sekoati and Others vs President of the Court-martial and Others - 2001 (7) BCLR 750 held that whilst the Section 118 of the Constitution of Lesotho provides for the


2 Section 118reads :-


"118. (1) The judicial power shall be vested in the courts of Lesotho which shall consists of-


  1. a Court of Appeal;

  2. a High Court;

  3. Subordinate Courts and Courts-martial;

  4. Such tribunals exercising a judicial function as may be established by Parliament.


(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 and any other law."


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independence of the judiciary and the courts, including courts-martial, on proper construction, the Constitution....


"... creates a particular legal regime for the military in general and courts-martial in particular. The full panoply of fundamental rights is expressly not available to the military. The courts-martial nevertheless must be impartial - but in the sense and to the degree appropriate to their inherent nature as military, not civilian courts. "


It is common cause in Lesotho that the Lesotho Defence Force has been established by the Constitution of Lesotho. Section 146 thereof reads:-


"146. (!) There shall be a Defence Force for the maintenance of internal security and the defence of Lesotho. "


The Lesotho Defence Force Act No.4 of 1996 has been passed by the Lesotho Parliament


"to provide for the command, control and administration of the Defence Force of Lesotho. "


It is also clear that this Act also has special provisions regulating the discipline of the members of Lesotho Defence Force, and PART IX of the Act has general provisions governing the conduct of court-martial proceedings- Section 91 - 1253.


3 Defence Force (Court-Martial) (Procedure) Rules 1998 (Legal Notice No.24 of 1998 were only promulgated on the 18th June 1998; they cannot be applied to the facts of this matter because the Court-Martial was convened on the 18th September 1997.


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In the Canadian case of Regina - Genereaux - (1992) 88 DCR (4th) 110 SCC it was recognized that breaches of military discipline wherever and whenever they occur must be dealt with as speedily as possible under a military code of discipline. This should apply to Lesotho in the same vein, in order to maintain good order, discipline and morale in the army. Indeed the Lesotho Defence Force Act No.4 of 1996 has provisions which admirably measure up to the modern standards of impartiality4 and independence; for example section 94 (2) provides for the legal representation (section 95 (2)); under section 97, the accused may challenge any member of the court-martial to its ensure impartiality (section 97); Section 104 states that in a court-martial, the law in force shall be the law in force in criminal proceedings in civil courts. The importance of section 104 lies in its effect of "civilianizing" (so to say) the procedure in the courts-martial.


Some of the provisions of the Act relevant to this application are "mandatory" and the court will have to determine the effect of their non­compliance upon the propriety of the court martial proceedings. Under the principle of legality, a tribunal such as court-martial must, in exercising its functions, comply fully with the statutory provisions of the law creating it. Otherwise, it acts ultra vires.


A The principles governing applications for recusal have been dismissed in the recent Constitutional Court of South Africa (11 Judges) - South Africa Commercial Catering and Allied Workers Union v Irvin & Johnson Ltd - 2000 (3) SA 705 where it was held that the court should presume that judicial officers are impartial.


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FACTS

The perusal of the Court-martial in this case record reveals that having being served with the charge at 11.23 am at Makoanyane Barracks on the 8/9/97, the applicant was on the following morning at 9.15 am immediately brought before the court-martial whose members were:


  1. Captain M W Maboloka (Legal Services)

  2. Captain M L Kotelo (OC Medical Services)

  3. Lieutenant K. Bane (Air Wing)


After he had been asked to plead to the charge as already quoted above, the accused stated as follows:-


"Before the Court continue the hearing I have objections to make"


The record then reads:


"Court: Yes, proceed.


Accused: I object to the whole composition of the Court on the reasons that I fear that I may not get a fair hearing because I know you are to politicize my case. Since we had fought badly and the law has never intervened to allow justice to take its course. I still feel that I am your enemy and your victim.


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Court: Mr Makhele ...you were given enough time the whole

night you were free to contact your lawyer. The Court is not considering you pleas because this Court is duly convened by the Commander of the army, so your objections are overruled.


Accused: So do you want to proceed without my lawyer?


Court: You had enough time to see your lawyer ... it is not our problem the Court is continuing the proceedings. "


In my view, the pertinent importance of sections 94 and 97 of the Lesotho Defence Force Act lies in their clear rationale to ensure impartiality in court-martial proceedings; and to that effect, a right (not privilege) is vested in the accused to challenge - before he can be asked to plead - the membership of any officer constituting the court. These sections read seriatim:


94. 1) The officer who convenes a court-martial shall not be a member of the court-martial


(2) An officer who, at any time between the date on which the accused was charged with the offence and the date of the trial, has been the commanding officer of the accused, and any other officer who has investigated the charge against accused, or who has held, or has acted as one of the persons holding, an enquiry into matters relating to the subject matter of the charge against the accused, shall not be the president or sit as a member of the court-martial or act as judge advocate at such a court-martial.


97. 1) An accused about to be tried by court-martial shall be entitled to object, on any reasonable grounds, to any member of the court, whether appointed originally or in lieu of another officer.


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(2)For the purpose of enabling the accused to avail himself of the right conferred subsection (1), the names of the members of the court shall be read out in the presence of the accused before they are sworn, and he shall be asked whether or not he objects to any of those members.


(3)Every objection made by the accused to any officer shall be considered by the other officers appointed as members of the court


(4)If an objection is made to the president, and not less than one-third of the othermembers of the court allow it, the court shall adjourn

and the convening authority shall appoint another presiding officer.


(5)If objection is made to a member of the court other than the president and not less than one-half of the other members allow it, the member objected to shall retire and the vacancy may, and if otherwise the number of members would be reduced to below the legal minimum shall, be filled in the prescribed manner by another officer.


In my view, it was necessary before the three members of the court martial were sworn in, that the names of the members of the court must have been read out and the accused advised of his right to challenge5. This was not done. In fact, the challenge was only belatedly made after plea and even so was cursorily dismissed by the court.


In the present case the accused challenged the whole court on the grounds of "bias", citing politicization of his case because of the then faction fighting in the Lesotho Defence Force. He says "I still fell that (I am)your enemy and

your victim. "


5 Rule 12 of the Court-Martial Procedure Rules (supra) 1998 later makes this very clear.


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The record reveals that this fundamental challenge to the constitution of the Court-martial and the request to be legally represented were ridden roughshod over - in fact the court says-


"... the court is not considering your pleas because this court was duly convened by the Commander of the Army ... so your objections are overruled". It is clear therefore that the court did not "put its mind" to or "consider" the challenges or request for legal representation made by the accused.

Whilst for the maintenance of military discipline, it is necessary that cases of misconduct or insubordination be expeditiously disposed of for the sake of military order and discipline, an accused soldier must be afforded sufficient time to prepare his defence. In the first place, the applicant was given just a few hours overnight to prepare his defence and possibly to secure counsel. In view of the fact that the proceedings were not mere disciplinary but were court-martial, the accused was entitled in the circumstances to legal representation; in fact section 95 (2) boldly guarantees this right.6 It reads as follows:


"95. (2) At proceedings before a court-martial the prosecution and the defence shall be entitled to be represented by counsel. "7


6 In the case of The Commander of the LDF v Rantuba 1999-2000 LLR/LB 95 at 101-02 the Court of Appeal held that-


"A detainee, even under military law, retains his common law right to a legal adviser save to the extent that such right has been expressly or by necessary implication attenuated. This is not a matter which depends upon a conferral by statute but whether the statute attenuates it."


7 In S. v Melani and Others - 1996 (1) SACR 335 at p.346-50 it was held that the right consult with a legal practitioners must be meaningfully exercised because it has everything to do with the need to ensure that an accused is treated fairly in the entire criminal process - p. 150 b-f.


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In my view, provisions of Lesotho Defence Force Act, like any other law in Lesotho, must also be interpreted in such a manner as not to violate the fundamental provisions of our Constitution of Lesotho. The court-martial can only function only in accordance with the provisions of the Act and not otherwise.


Another disturbing feature of these proceedings is the way or manner in which they were conducted. The perusal of the record shows that the court exhibited a rather extreme impatience with the accused when he was cross examining the witnesses - as he was entitled to. Many a time the court interjects - "you are waisting the court's time" ... "you are asking irrelevant questions" "I don't see relevancy of this question." [Record page 5]. "Don't waste court's time ". [Record page 2]


At one point the court seems to have descended into the arena -


Question: Lt.when you said I must stop using a maroon beret where did you get those orders from?


Court: ouasked and we indicated that it is the Commander! (Record,

page 6)


It is the basic principle of natural justice that a trial in a court of law should at all times take place in an atmosphere of fairness and that the accused must be given opportunity to cross examine without undue interruption from the court.


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In the South African case of R. v Maseko 1990 (1) SACR 107 it was held that in our courts, a trial judge is entitled, and often obliged, to ask questions to a witness during trial. He should however guard against any conduct which could create an impression that he was descending into the area of conflict. Such conduct could create the further impression that he was partisan and that he had pre-decided the issues which should only have to be decided at the end of the trial. The accused is usually given much latitude when cross examining witnesses because his purpose then is to challenge the veracity of the evidence of such witnesses by putting it to them that their evidence is not the truth.


In these court-martial proceedings, it was pertinent to ask all questions that related to the lawfulness of the command to wear a green beret instead of a red one - Duncan v Minister of Defence -1965 (3) SA 94, While appreciating the fact that court-martial proceedings may not always enjoy the relaxed atmosphere and decorum exhibited in a civil court, basic standards of fairness and impartiality must be respected at all times. In the case of S. v Rall - 1982 (1) SA 828, the Appellate Division in South Africa set some guidelines regarding the limits within which judicial questioning should be confined, (pages 831 - 832) and held that "open signs of impatience are sometimes a breach of the impeccable impartiality which is expected from him who bears the scales of justice between the parties."


Under our Constitution of Lesotho8, a court martial is a court of law whose


8 See Section 118 (1) (c), see also Sekoati & Others v President of Court Martial & others 1999-2001 LLR 67 where Kheola C.J. held that though a court-martial is an ad hoc body convened or assembled by the convening authority only when need arises, it is however an independent tribunal under the Lesotho Defence Act of 1966.


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proceedings should at all times conform to the basic principles pertaining to a court of law and such principles include rules of natural justice designed to ensure that accused has a fair trial. In the case of Council of Review, South Afican Defence Force and others v Monning and others - 1992 (3) SA 482 (A.D) Corbett CJ had this to say at page 491 C-D-


"Although a court martial is composed of military officers, it is in substance a court of law and its proceedings should conform to the principles, including the rules of natural justice, which pertain to courts of law. One such rule is that which postulates that a person should not be tried by a court concerning which there are reasonable grounds for believing that there is a likelihood of bias or there is a reasonable suspicion of bias .... The recusal right is derived from one of a number of rules of natural justice designed to ensure that a person before a court of law should have a fair trial. Generally speaking such rules which are part of our common law, must be observed unless the legislature has by competent legislation, either expressly or by clear implication, otherwise decreed. "

The learned Chief Justice went on to opine that the failure of justice which may occur in domestic tribunals e.g. clubs or associations, should always be distinguished from the failure of justice in proceedings in what is in substance a "court of law" and held that even though the military officers constituting a court-martial are "lay~men", a court-martial is nevertheless a court of law and the propriety of its proceedings should be judged by the basic standards pertaining to a court of law. (pages 494 H - 495 B) - See


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also S. v Malindi 1990 (1) SA 962. This procedural propriety is indeed explicitly guaranteed under section 104 of the Lesotho Defence Force Act. It reads:-.


"104. saveas is otherwise provided by this Act, the law which shall be observed in the trial of any charge before a court-martial as to-


  1. the onus of proof; and

  2. the sufficiency or admissibility of evidence, and

  3. the competency, compellability, examination and cross-examination of witnesses; and

  4. any matter of procedure,


shall be the law in force in criminal proceedings in the civil courts."


The correct approach in casu should therefore proceed upon the basis that the applicant enjoyed a "recusal right" both under the common law and under the Lesotho Defence Force Act9. The applicant based his challenge upon what Corbett C.J. termed "institutional bias"10 which challenge seems to have been summarily dismissed without any due consideration.


In the circumstances, I am of the view that the court-martial's approach to the recusal application, belated as it was, was wrong. Firstly, the right to challenge should have been afforded before the applicant pleaded; secondly, adequate and due consideration should have been given to the application, and not the summary dismissal it received. Prima facie, this would justify


9 Section 97 of the Act. (supra)

10 Manning's case, page 492 F


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the proceedings before the court-martial being set aside on review.11 In casu, I am not convinced that, the challenge or objection by the applicant, having been thus summarily dismissed without any due consideration, it safely be said that the impartiality of the court was without blemish. In its haste, the court-martial disregarded the mandatory provisions of the Lesotho Defence Act and conducted its proceedings in the manner it did. This court will however not go into the merits of the case- that was for the court martial.

Another glaring irregularity is demonstrated by the fact that even when the appointed prosecutor formally withdrew the charge against the accused, this was ignored and overruled by the court, which proceeded with the trial.


The record at page 24 reads:-


"Pros: he prosecution finds its case against S/Lt. Makhele to be

unsubstantiated as a result of insufficiency of reasons and evidence to prove that the accused is indeed guilty. We therefore request the Honourable Court to dismiss the charges against the accused. The prosecution withdraws the charges and it requests that the accused be discharged. "


Court: The court will take time to consider the prosecutions'

application ... you will know the court will adjourn until 0900 hrs on 4/11/97 and both parties are expected to be present


Pros.: We have indicated that we have no case against the accused,

what should we then come here for.


Court: The court will adjourn to 0900 hrs 04.11.97. The court will adjourn. "


11 Council of Review (supra) at page 494


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09.30 hrs 04.11.97 at Makoanyane Headquarters Building.


Court Mr Bereng continue with your summary. Make your addresses.


Accused: Before he rises I would like to know from the court. Before we adjourned the prosecution made an application that they had insufficient evidence to support their case and they requested the court to discontinue the hearing. Has the court ignored that genuine application? Bereng had supported private Mahao on that move. Mr Bereng did you make another application to continue the hearing contrary to your previous application? I have no case to answer!


Pros do not know that boy who made the application. I do not know

who brought him here. He is a very new recruit. It is I here whose instructions will be listened to I have not withdrawn the case I am proceeding.


Court Once the case is before the court it is not for the prosecution to order the court to discontinue the hearing, therefore the court find it necessary to continue the hearing and the application is overruled the case is no longer theirs (MABOLOKA)


Accused: Are you sure you know what you are doing. Anyway lets proceed as you wish.


Court Mr Makhele this is for the court not for you. You are the accused before this court.


Accused: Thank you Adv. Pres I hope you have already decided the

case."


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In the case of Tsematsi Mosolo v Rex 1979 (2) LLR 482 (C.A) it was held that in order to decide whether or not the prosecutor has discontinued the case12, regard must be had to his actual words and the circumstance in which they were uttered (Scott v Additional Magistrate - Pretoria - 1956 (2)SA 655 at 658; Masupha v Rex - 1974-75 LLR 309 per Isaacs A. J. In my view the prosecutor in a court-martial is dominus litis and it was within his power to withdraw a charge at any stage of the court-martial proceedings and "no court can prevent him, just as no court can force him to prosecute" ~ R v Sikumba 1955 (3) SA 125 at 127 per de Villiers J. It was not correct, in my view, for the court-martial to have proceeded despite the clearly expressed withdrawal of the charge by the prosecutor; it was indeed not correct for the court to say ... "the case is no longer theirs" One may ask "whose case was it then"


In the case of Blacker v University of Cape Town - 1993 (4) SA 402 it was held that a denial of justice in disciplinary proceedings is always presumed to be prejudicial to the party affected; if the irregularity complained of is calculated to prejudice the party affected, he/she is entitled to have the proceedings set aside unless the court is satisfied that he/she was not prejudiced and the onus to disprove prejudice rests upon the tribunal concerned - Turner v Jockey Club of South Africa - 1974 (3) SA 633.


12 Withdrawal of the charge is matter of procedure. After plea, withdrawal of a charge amounts to a discontinuation of proceedings and section 8 of Criminal Procedure & Evidence applies and accused has to be acquitted in respect of that charge.


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I am not oblivious to the South African decision of S v Tengo 2003 (1) SACR 162 (ECD) which dealt with a situation where a subordinate prosecutor - without the consent of the Director of Public Prosecutions -had effectively stopped the prosecution after the accused had pleaded. The accused had originally pleaded guilty but his plea had later been changed to "not guilty" plea the prosecutor had then accepted. Pickering J. held - on review - that acceptance by the prosecutor of the plea of "not guilty" and subsequent acquittal stood to be set aside because under section 6 (b) of the Criminal Procedure Act No. 51 of 1977 the Director of Public Prosecutions can


"at any time after the accused has pleaded but before conviction, stop the prosecution in respect of that charge in which event the court trying the accused shall acquit the accused in respect of that charge: Provided that where a prosecution is conducted by a person other that the attorney general... the prosecution shall not be stopped unless the attorney general in a particular case, has consented thereto. " (my emphasis)

Well, this is provision of a South African Statute and has no application in our jurisdiction. I ignore it. Our section 5 of the Criminal Procedure and Evidence Act No.9 of 1981 reads:


"5. The Director of Public Prosecution may in any case in which he considers desirable so to do -


  1. institute and undertake criminal proceedings against any person before any court (other than a court -martial) in respect of any offence alleged to have been committed by that person;


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  1. take over and continue any criminal proceedings which have been instituted or undertaken by any other person or authority including any proceedings instituted before the commencement of this Act; or


  1. discontinue in writing at any stage before judgment is delivered any criminal proceedings instituted or undertaken by himself or other person or authority.


6. (1) The powers of the Director of Public Prosecutions under section 5 may be exercised by him in person or by officers subordinate to him acting in accordance with his general or special instructions"


This should be read in consonance with section 278 (3) of the Criminal Procedure and Evidence which reads:


"278. (3) Nothing in this section shall deprive the Director of Public Prosecutions or the public prosecutor with his authority or on his behalf of the right of withdrawing any charge at any time before the accused has pleaded, and framing afresh charge for hearing before the same or any other competent court. "


Section 104 of the Lesotho Defence Force Act states that "any matters of procedure" shall be governed by the law in force in criminal proceedings before civil court in Lesotho. Institution, continuance, discontinuation of criminal proceedings in my view are all matters of procedure.


When prosecutor adduces evidence before the court martial, he does so upon his own responsibility and in performance of that duty, he is wholly independent of the court which should not interfere with the said power and


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discretion conferred upon him by the Statute - Gillingham v Attorney General - 1090 T.S. 572 - R v Komo - 1947 (2) SA 508.


Delay

In limine, the respondents have submitted that the application is barred on the ground of unreasonable delay. It is the trite principle of our law that although there is generally no prescribed time limit within which review proceedings must be brought, it is clear that they must be brought within a reasonable time.13 What is reasonable, in my view, will depend upon the particular circumstances of each case and the court in exercising its judicial discretion to entertain the proceedings must first inquire factually into the lapse of time and if it is found that the lape was unreasonably long, it has a discretion whether or not to condone the delay14. The delay must be reckoned from the time when the applicant knew of the final decision which he seeks to have reviewed. In casu, although the applicant petitioned the Commander of the Lesotho Defence Force on the 7th May 1998, he did not receive any response until the publication of Legal Notice No.100 of 1998 which operated with effect from 10th September 1998.


In my view whilst the delay must be reckoned from the time when the applicant knew of the final decision which he seeks to have reviewed, the reasonableness or otherwise of the lapse of time is a matter of degree and is relative to the particular circumstance of each particular case. In the case of


13 Herbstein & Van Winsen - Civil Practice of the Supreme Court of South Africa (4th ed) 1997 .955 Mnisi v Chauke- 1994 (4) SA. 715 Rev. Khang v Bishop Mokuku - C of A (civ) No. 19 of 2002.

14 The law comes to the aid of the vigilant and not the slumberous (vigilantibus et non dormientibus lex succurrit)


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Setsokotsane Busdiens v Nationale Vervoerkommissie - 1986 (2) SA 57 the Appellate Division set down the test as follows:


"The test which a court has to apply to ascertain whether a common law application for review in the absence of a specific time limit, was brought within a reasonable time, is of a dual nature. The Court namely has to ascertain (a) whether the proceedings were instituted after expiration of a reasonable time and (b) if so, whether the unreasonable delay should be condoned. As regards (b), the Court exercises a discretion but the enquiry as far as (a) is concerned does not involve the exercise of the Court's discretion; it involves a mere examination of the facts in order to determine whether the period that has elapsed was in the light of all the circumstances, reasonable or unreasonable. Naturally the finding of the Court in this regard does imply that the Court has made a value judgment in the sense of the Court's view of the reasonableness of the period that has elapsed in the light of all the circumstances. To equate such a value judgment with a discretion is, however, not justifiable legally or logically. "


In our case under review the issue of delay was not raised specifically as a substantive point in limine by the respondents in their answering affidavit, which limited itself to the issue on non-exhaustion of domestic remedies. The issue of delay has been raised rather belatedly and only so in the heads of arguments; in my view, the issue of delay should have been raised issuably in the answering affidavit in order to be responded to in the replying affidavit by the applicant. I however feel that a delay of six months between the date of the Legal Notice terminating his commission and the launching of the review application is not unreasonable. Anyway the respondents cannot rely on an issue which was not raised in limine in their answering papers.


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Domestic Remedies

It is our law that where the law or contract provides for domestic remedy in disciplinary matters, such remedies must be exhausted before an application is launched in the High Court for review. It is also correct to state that where a fundamental irregularity has occurred, a review application is however not precluded - Ndara v Umtata Presbytery NGK - 1990 (4) SA 22. In Welkon Village Management Board v Leteno- 1958 (1) SA 490 Ogilvie Thompson J.A. held that domestic remedy provisions do not and should not oust the jurisdiction where a fundamental irregularity has occurred - Theron v Ring Van Wellington - 1976 (2) SA 1 (A)


In casu, the applicant, for his part, did petition the confirming authority, though belatedly. It was only on the 6th May 1998 (some six months after the court-martial decision) that the Commander as the confirming authority wrote to the applicant. His letter reads:


"Commander LDF

PO Box 54

MASERU


6 May, 1998


S/Lt Makhele

Makoanyane Barracks

MASERU


RE: YOUR CONVICTION BY COURT MARTIAL


Whereas you were convicted by a duly convened Court Martial of a Military offence contrary to Section 51 (1) of the Lesotho Defence Force Act 1996, and recommended to be dismissed.


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Therefore in terms of Section 21 (b) (c) and (e) it is proposed to terminate your Commission as an officer.


I therefore require you to show cause, in writing, as to why the proposed action should not be taken against you. Any representation you may wish to make should reach me not later than 14.00 hours on Friday 8th May 1998.


AM. Mosakeng

Commander - LDF"


On the 8th May 1998 the applicant wrote a lengthy "petition" to the Commander listing his grievances about the court-martial proceedings. Nothing happened until the Legal Notice No.100. I do not think it can be said that the applicant failed to exhaust domestic remedies under the Act, or if he did, I am of the view that the fundamental irregularities I have alluded to entitled him to launch the review application.


This finally brings me to the legal validity of Legal Notice No. 100. In the case of Commander - LDF v Mokuena and Others - C. of A. (civ) No. 12 of 2002 Steyn P. stated thus:-


"The legal notice that has as its source the administratively flawed procedure is accordingly null and void. "


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In my view the irregularities in the court-martial proceedings were so fundamental that these proceedings ought to be set aside and they are hereby aside. Consequently the Legal Notice No.100 is also declared null and void.


S.N. PEETE

JUDGE


For Applicant : Mr Mohau

For Respondent : Mr Putsoane and Mr Mojaje