Law Society of Lesotho v Ramodibedi N O and Others (Constitutional Case No. 1 of 2003 )

Media Neutral Citation: 
[2003] LSHC 89
Judgment Date: 
15 August, 2003

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CONSTITUTIONAL CASE NO. 1 OF 2003

IN THE HIGH COURT OF LESOTHO


HELD AT MASERU


In the matter between:

THE LAW SOCIETY OF LESOTHO APPLICANT

and

MR. JUSTICE MICHAEL RAMODIBEDI N.O. 1stRESPONDENT

THE CHIEF JUSTICE (Mr. Justice MX. Lehohla) 2NDRESPONDENT

THE ATTORNEY GENERAL 3RDRESPONDENT


JUDGMENT


DELIVERED ON THE 15th AUGUST, 2003 BY THE HONOURABLE MR.

JUSTICE W.C.M. MAQUTU


1. INTRODUCTION


(I) When ! was asked to preside over this case by the Chief Justice in June 2003, it was expected to be a short matter as the full bench of the Court of Appeal had decided most central issues in M.E.Sole v' B.P. Cullinan C of A (CIV) NO. 29 OF 2002. It was fated not to be a straight forward mailer because of surrounding problems. Even after it had been withdrawn I was obliged at the request of the Chief Justice not to accept


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the withdrawal because of disruption of the courts business this case had caused. Consequently the parties are appearing amicus curiae.


(2) On the 31st January, 2003 the Law Society of Lesotho had filed of

record an urgent application against the respondents. The Law Society of Lesotho was (in a nutshell) asking for an order in the following terms:-


  1. That the continuing performance of functions of a puisne judge in the High court (except for part heard matters) by the First Respondent (Mr. Justice M. Ramodibedi) after his appointment as a substantive Court of Appeal Judge on the 13th November, 2002 be declared in breach of Sections 123(4) and 118(1) (a) of the Constitution of Lesotho read with the Court of Appeal Act. No.8 of 1978.


  1. That the Respondent (Mr. Justice M. Ramodibedi) be restrained from performing any functions of a puisne judge of the High Court.


  1. That the matter be dealt with and finalized before the 17th February, 2003.


  1. That the Third Respondent be directed to pay costs of this application.


(3) This application began before Justices Guni, Peete and Nomngcongo AJ on the 4th February,2003 and was postponed to the 13th February, 2003 for hearing and parties were given time to file opposing and replying papers. This application was not fated to be


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completed by the 17th February, 2003 as the Law Society had wished. By the 7th March, 2003' an application for recusal of judges of the High Court had been made and the majority of the judges had recused themselves with Guni J (the presiding judge) dissenting. This application had been preceded by a case involving M.E. Sole. In that case the Law Society seemed uncertain of what its reaction to the appointment of Judge Ramodibedi should be. Some of the averments in both cases are very similar. In a supporting affidavit of Mr. Molyneaux to the Attorney General's opposing affidavit he questioned the bona fides of the Law Society. The Law Society had appeared to intervening in the case of M.E. Sole but had not pursued its intervention.


(4) When the case of M.E. Sole v B.P. Cullinan & 6 others C of A (CIV) No. 29 of 2002 was heard on appeal some of the issues of the case before me had to be traversed because the appellant M.E. Sole claimed there had been a mistrial on the ground that the judges who tried him ought not to have sat in his case. Cullinan AJ who had tried his criminal case and convicted and sentenced him to imprisonment was, according to that M.E. Sole, was disqualified to preside over his case. Appellant claimed he relied on the constitution for his assertion and consequently brought a "Notice of Constitutional Motion" before the High Court. The matter was heard by Lehohla CJ, Ramodibedi J and Guni J who found against him on various grounds most of which are not relevant to the case before me.


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(5) The relevant issue of the Sole case to this is M.E. Sole's contention that judge; Ramodibedi had ceased to be a High Court judge. This assertion of that appellant was, according to the summary of Gauntlett JA (at page 19 of the Sole judgment) accompanied by allegations that the sitting of judge Ramodibedi in both the High Court and the Court of Appeal creates the perception in the mind of ordinary people that even the Court of Appeal would be loath to overturn judge Ramodibedi's judgments. Consequently - so the argument went "this may impact negatively on public confidence in the administration of justice." Paragraph 5.2 of the founding affidavit of Z. Mda (the President of the Law Society of Lesotho) virtually repeated what E.M. Sole had said in the following words:-"We are particularly apprehensive that there is a real danger of first respondent's said dual roles creating the perception in the minds of ordinary persons that the Court of Appeal may be loathe to overturn judgments delivered by their said colleague sitting in the High Court. And as a corollary to that the perception of the independence and separate existence and the functions of the Court of Appeal may be blemished and rendered meaningless." This seems to me to be the core of this application rather than the Constitutional issues raised. Those issues may perhaps be the expectations of the Law Society about the future of Lesotho's court system. I will therefore deal with the issue later.


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2. MEANING OF SUPREME COURT IN RELATION TO LESOTHO


(6) 1 can see no difference between Ramodibedi J or JA sitting as a judge of appeal under his recent appointment or as an ex officio judge of appeal. In both cases in the Court of Appeal he continued to he Ramodibedi JA in the judgments of Court of Appeal. I have serious doubts whether this new position has any meaningful constitutional significance.


(7) It seems to me that the present constitutional dispensation is a continuation of a tradition that Lesotho has inherited from Britain. Time and time again when constitutional problems arise Britain is our first reference point. This is summarised in respect of England and Wales part 1 of the Supreme Court Act of 1981 - Section 1 which provides:


" The Supreme Court of England and Wales shall consist of the Court of Appeal, the High Court and the Crown Court."


This provision is a summary of what the Supreme Court has meant to England and Wales. It is this tradition that Lesotho had inherited and what the Court of Appeal and the High Court are - namely


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purls of the superior court of record which is historically called the Supreme Court.


(8) At their inception the courts of Lesotho did not follow the separation of powers principle. At High Court level the judge (who was also the governor of Lesotho) was the Resident Commissioner. At district level the District Commissioners who were district administrators operated the Magistrate Court. After all the doctrine of separation of powers is not quite a British constitutional doctrine. It is really a constitutional analysis of the British constitution as Baron de Montesquieu saw it in The Spirit of the Laws. His objective was to influence French constitutional thinking which tolerated despotism. He wanted power not to be concentrated in the hands of the same person - so that there could be checks and balances. To put all this in a nutshell at page 185 Book XI chapter 6 of The Spirit of the Laws Baron de Montesquieu said: "Again there is no liberty, if the power of judgment be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Were it joined to the executive power, the judge would behave with all the violence of an oppressor."


(9) For centuries even up to the year 2002 the Lord Chancellor

was the chief judge in the House of Lords - a part of the legislature. He was the chief judge in the Court of Appeal of England and


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Wales. The Chief Justice ranked after the Lord Chancellor in the Court of Appeal and the High Court. See The Judicature Acts and Other Statutes Supreme Court Practice H. Jacobs & Others Centenary Edition 1982 Volume 2 Part 9 (3301 up to 3308). It has to be borne in mind that this Lord Chancellor is also a member of the Cabinet which is executive organ of the British State or the United Kingdom. Consequently separation of powers (which is the ideal to which modern states aspire) is negated by the way the British organs of the state appear. Britain only conforms to the spirit of separation of powers in that the government never tries to undermine or invade the independence and impartiality of the Lord Chancellor as a judge or that of the judiciary as a whole.


(10) What the High Court is - is a court of unlimited jurisdiction.

From 1889 up to 1938 the High Court was the Resident Commissioner's Court. In the Authority Under Foreign Tribunal Evidence Act Order in Council of 2nd August, 1910 the Resident Commissioner's Court was recognized as a Supreme Court of Basutoland. Consequently the Resident Commissioner was made a Judge within the meaning of the Foreign Tribunals Act of 1856. The High Court came into being by the High Court Proclamation 57 of 1938. Section 12 of that High Court Proclamation of 1938 substituted the High Court for the Resident Commissioner's Court wherever it appeared. Appeals from the High Court in terms of the amended Order in Council of 13th October, 1910 were to be to Privy Council.


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(11) From the foregoing the High Court has always been a central part of Supreme Court. A judge of the High Court has therefore (since the proclamation of the said Order in Council of 1910) been interpreted or deemed to be a judge of the Supreme Court. As I see it, Mr. Justice Ramodibedi on his appointment to the High Court bench became a judge of the Supreme Court. The Constitutions that Lesotho had in 1966 and 1993 not changed this position. The Supreme Court status of the High Court and the Court of Appeal is not changed by the fact that they are not called the Supreme Court. They are in fact portions of a Supreme Court. It is (or should be) on this basis that in the Sole full bench decision of the Court of Appeal - found judge Ramodibedi's movement within the High Court could not affect his status as a judge. As I see it the Court of Appeal is a appellate portion of the Supreme Court that the High Court has always been.


(12) The Court of Appeal for Basutoland, Bechuanaland and Swaziland in terms of Section 6 of the Statutory Instrument No. 1369 of 1954 was established with the judges of the High Court. The Chief Justice of the three High Commissioned territories became by law its President. If there were more than one Chief Justices in the three High Commissioned territories then the High Commissioner would appoint a President of the Court of Appeal. From the above it should be clear that the Court of Appeal was established with High Court judges. See page 448 of Volume I of the Laws of Basutoland 1960 Court of Appeals Order 1954 Section 6. These judges could be supplemented with other persons


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qualified to be appointed judges. These supplementary judges and senior practitioners have over the years become the majority of the Court of Appeal judges. Having regard to this history, I was surprised when I was urged to consider the Court of Appeal divorced from the High Court when these two courts have always used the same judges from the inception of the Court of Appeal.


(13) In short the Court of Appeal of Lesotho and the High Court of Lesotho were from their inception by legislation and practice based on the Supreme Court of England and Wales. See the Judicature Acts and Other Statutes in part 9 of Volume 2 of the Supreme Court Practice 1982. This has become Part 17 of Volume 2 of the Supreme Court Practice 1995. The same was true of the Supreme Court of the Union of South Africa of 1910 which was to later become the Republic of South Africa. Their Supreme Court put the Supreme Court idea even more tidily than England and Wales - because their Supreme Court was simply divided into the Provincial and Appellate Divisions. In 1910 appeals from South African Supreme Court were to the Privy Council. This was also true of Basutoland Resident Commissioner's Court that preceded the High Court - appeals from that court went straight to the Privy Council. See Volume I pages 8 and 9 of Laws of Basutoland 1949 where the Order in Council of 2nd August, 1910 and 13th October, 1910 deal with the nature of the Supreme Court that Lesotho had. A Court of Appeal for the High Commissioned Territories was later established with the same judges of the then Basutoland, Bechuanaland and Swaziland.


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(14) If we accept that the High Court of Lesotho and the Court of Appeal of Lesotho from their inception constituted what is collectively The Supreme Court in the tradition of England and Wales - then the judges of the High Court could not be deemed to be no more judges of the High Court when they sit as full judges of the Court of Appeal. They have always been and continue to be part of both courts. Consequently Gauntlett JA in a full bench unreported Court of Appeal judgment in M.E. Sole v B.P. Cullinan and Others C of A (CIV) No. 29 of 2002 at paragraph 27 said :


"It is 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 of the Constitution . This in my view is without any merit. The provision is, in fact to the effect that the Chief Justice and other judges of the High Court shall vacate office when he attains the prescribed age. This is the provision stating an ex lege basis on which termination of appointment occurs."


(15) These superior courts of Lesotho have a long tradition. If the Constitution had intended to alter their traditions and the status of judges of the High Court who sit and have a right to sit in the Court of Appeal, it would have said so. It remains however true that the Court of Appeal had over the years been manned by different


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judges from the High Court although the High Court judges were ex officio judges of appeal. The Law Society is challenging this departure from this evolutionary practice within the Supreme Court of Lesotho. I will deal with this issue later.


3. ADDRESSING SETTING JUDGE - HIGH COURT OR

COURT OF APPEAL


(16) The current vexed issue which continues to plague the High Court and its registrar and assistant registrars is whether when judge Ramodibedi sits in the High Court he should be addressed as Judge(J) or Judge of Appeal (JA). A proper reading of a full bench Sole judgment in my view states unambiguously at the footnote on page 3 the following:


"The judgments of the court a quo erroneously trier to Ramodibedi J as "Ramodibedi J(A)". This 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 the matter - "J"."


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(17) Despite this clear correction of the Registrar and her assistants in this respect, continue to style Ramodibedi J (when he sits in the High Court) as JA. See the Weekly Rolls of 4th August and 11th August, 2003. Since the Registrars make unclear allegations as to why they have been overlooking this injunction of the full bench of the Court of Appeal - this issue has to be revisited and emphasized to remove this confusion once and for all.


(18) As I have already said the Court of Appeal was founded on the judges of the High Court and continues to have them as its ex officio judges. See Section 123(l)(c) of the Constitution. The tradition of having a judge of the High Court or Court of Appeal silling at either of the courts is well established. The case of judge E.R. Roper is a clear example. When he first sat in the Court of Appeal, he sat in June 1956 as Roper JA. See Koosinile & another V Rev 1956 HCTLR 90. The High Commissioned Territories Law Reports show judge Roper sitting in several Court of Appeal cases as judge of appeal between 1956 and 1960. But in July I960 judge Roper sat in the Basutoland High Court case as ordinary judge and was addressed as J. See Zulu V Regina 1960-(1960-61 HCTLR 5 where judge Roper is referred to as Roper J. He sat in several Basutoland High Court cases as Roper J in that period, Even Elyan J changed the titles to J and JA depending on which court he was sitting in, see the case of M. Maqeba & another V Regina 1960 HCTLR 7 where he sat as JA to deal with an appeal from the judgment of Cox CJ when he was only a puisne judge of the High Court and often dealt with the cases of the High Court as


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the High Court and often dealt with the cases of the High Court as Elyan J. liven in June 1963 Judge Roper used both titles depending on which court he was sitting, as in Regina V Masakale 1963-66 HCTLR 17 he was Roper J. In the same month of June 1963 Judge Roper had dealt with another Lesotho case of Lethola & 7 others V Regina 1963-66 HCTLR 12 at the Court of Appeal as JA.


(19) The Constitution and the Court of Appeal Act of 1978 have not expressly changed the existing traditions, customs and precedents. Clearly when a judge of appeal sits in the High Court he is referred to as J and when he sits in the Court of Appeal, he is styled JA. It will be observed in England a judge of the Court of Appeal sits in the High Court whenever he is so assigned by the Chief Justice or the Lord Chancellor. When he presides at that level he is simply addressed as J. This flexibility has been dealt with in Halsbury Laws of England Volume 11 pages 760 to 772. I was not persuaded that because in England there had to be legislation for that to happen it should not continue in Lesotho. It will be seen that this issue of appellate jurisdiction in the Supreme Court is old. See The English Appellate Jurisdiction Act 1876 . In Lesotho we have the above precedent that - show that in the Supreme Court of Lesotho - of which the High Court and the Court of Appeal are parts, judges of appeal can sit in the High Court and vice versa. The Constitution or the legislature has not touched this tradition nor can this be found to be inconsistent with the constitution.


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4. PRACTICES PROMOTING FAIRNESS - LEGITIMATE

EXPECTATIONS


(20) The real central fear of the Law Society is not the violation of the constitutional provisions referred to. It is really the suspicion that judges of the Court of Appeal might become so close to Mr. Justice Ramodibedi as a colleague that they would not set aside his judgments. To put this in the words of Mr. Z. Mda (the President of the Law Society) Mr. Justice Ramodibedi's dual role in the High Court and the Court of Appeal makes the Law Society apprehensive of "the dual roles creating the perception in the minds of the ordinary persons that the Court of Appeal judges may be loath to overturn judgments delivered by their said colleague sitting in the High Court." When similar fears were expressed about an acting judge who was a serving public servant under the Director of Public Prosecutions - the Attorney General found this "an unwarranted slur" on the acting judge and the Attorney General under whom they both served. See Law Society V the Prime Minister & another 1982-84 LLR 500 at page 502 - Schutz P (on the same page ) however observed :


"But I think it is better to approach a matter of such importance to the country quite calmly... It is right that the matter should be brought into the open before the proper forum, namely the ordinary courts of the land, and it is a credit to a country and not a discredit that such matters should be ventillated... I approach this matter on


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the basis that the Law Society and the Attorney General hold their opposed views strongly but sincerely."


(21) As to the other point that Mr. Mohau relied on in finding Mr. Justice Ramodibedi to be disqualified from sitting as judge of the High Court namely that he was now a full time judge of the Court of Appeal, [ have already said even if he was both the High Court and the Court of Appeal are the superior courts of record and have never ceased (either individually or collectively) to be part of the Supreme Court. Mr. Mohau says Mr. Justice Ramodibedi is now a substantive judge of appeal. Mr. Mohau refers me to Section 124(3) of the Constitution. I asked Mr. Mohau what the term means. He said it meant full time. If "substantive" means "full time" then Mr. Justice Ramodibedi is the sole "substantive" judge of appeal. The President and the other judges of appeal are part time judges of the Court of Appeal which sits on an ad hoc basis. They have no salaries nor could they expect pensions in terms of the Judges Pensions Act of 2002.


(22) What the Law Society perceives as proper is a complete separation of the High Court judges and the Court of Appeal judges to prevent the suspicion that there might be an unhealthy empathy and closeness between these judges to the detriment of the independence and impartiality that the public expect of the judiciary. It will be observed that the law reports show that before 1996 (when Lesotho became independent) the Court of Appeal practice had been that any judge of the High Court could sit in the


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Court of Appeal in a case (at appellate state) over which his colleague (even a superior such as Chief Justice) had presided. The practice of appointing the Chief Justice as President of the Court of Appeal seem to have stopped just before Lesotho became independent. I examined the High Commissioned Territories Law Reports and found that a serving judge of the High Court was no more invited to sit in the Court of Appeal just before independence as a mutter of course.


(23) If then this is the position it seems there might be substance in

what the Law Society had legitimately come to expect, namely that there had developed a substantial separation between the High Court and the Court of Appeal. The ex officio membership of the Court of Appeal which High Court judges had, was used only in emergencies as happened when judge Rooney and judge Molai sat in the Court of Appeal. I decided to check if this de facto separation had developed and been practiced - I could determine this by going through the available High Commissioned Territories Law Reports and the post independence Lesotho Law Reports.


(24) Before going through the Law Reports I had a short perusal of the Court of Appeal Order of 1954 in Volume I of the Laws of Basutoland 1960 Volume I Title TV pages 447 to 451. This Court of Appeal Order had established the Court of Appeal for Basutoland, Bechuanaland and Swaziland commonly called High


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Commissioned Territories. Section 6(1) (a) made the Chief Justice of the three High Commissioned Territories President of the Court of Appeal. If three separate individuals were Chief Justices in each of the territories, the High Commissioner would appoint one of those Chief Justices President of the Court of Appeal, see Section 2 of the Court of Appeal Order, The other judges of the High Court of Basutoland, Botswana and Swaziland (including acting judges) were in terms of Section 6(1) (b) of the Court of Appeal Order of 1954 judges of the Court of Appeal. The last category of judges in terms of Section 6(l)(c) of the Court of Appeal Order 1954 was:


"Such other persons (being qualified for. appointment as judges of the High Court in any of the Territories) as High Commissioner may by instrument under his hand from time to time appoint."


(25) In 1954, right up to independence, there was often one Chief Justice for Basutoland, Bechuanaland and Swaziland. He was assisted by puisne judges who were resident in Basutoland, Bechuanaland and Swaziland. Sometimes one puisne judge could cover two or three of these High Commissioned Territories. It therefore became necessary to appoint more and more retired


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judges and senior legal practitioners from South Africa and other Commonwealth countries under Section 6(1)(c) of the Court of Appeal Order 1954 to assist. It was often necessary to resort to these outside judges to have a quorum of three judges to enable the Court of Appeal to sit. This was because one or all the existing judges of the High Court in a territory, might have tried cases at first instance, against which there was an appeal in a Court of Appeal session. As time went on these part time South African judges, who now include the President of the Court of Appeal sat increasingly alone.


(26) Each and every judge and the Chief Justices held "office during His Majesty's pleasure", or vacated office "at the termination of the period, if any, as may be prescribed in the instrument by which he is appointed". - See Section 6(l)(3)(a) and (b) of the Court of Appeal Order of 1954. These judges were by giving notice was free to resign. An acting President could be appointed if the need arises - such appointment could continue until the High Commissioner revoked it by instrument under his hand.


(27) The lust Chief Justice to be also President of the Court of Appeal was Mr. Justice Watkin Williams. Watkin Williams CJ seems to have vacated office in the first half of 1965 - from what appears in the 1963-66 HCLTR. By September, 1965 judge Roper (alter being Acting Chief Justice of Bechuanaland for a short time)


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became President of the Court of Appeal. Judge Roper was to remain President of the Court of Appeal until 1969 - See 1967 to 1970 Lesotho Law Reports. Weston CJ of Bechuanaland, Benson CJ of Basutoland and Jonston CJ of Basutoland (between 1965 and 1966) when Lesotho was about to be independent never became presidents of the Court of Appeal. After Lesotho became independent between 1967 up to the present judges of the High Court were de facto no more invited to use their ex officio status as judges of the Court of Appeal.


(28) This issue is however not that straight-forward. It seems the Constitution never envisaged the separation between High Court and Court of Appeal. Section 111(4) of the Lesotho Constitution of 1965 provides that if the Chief Justice is unable to exercise his functions, one of the judges of the Court of Appeal or puisne judges or other qualified person may be appointed to act in his place by the King acting with the advice of the Prime Minister. The same provision has been re-enacted unchanged as Section 120(4) of the Constitution of 1993.


(29) Even though nothing specific in the law supports the kind of clear separation that the Law Society believe should exist their argument cannot just be dismissed. This thirty seven years practice is a fact. A practice developed from 1965 onwards to have retired


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judges from South Africa and legal practitioners appointed as judges of the Court of Appeal to run it exclusively although they served on part time basis. In that situation, there could be no suspicion that the judges of appeal might be loath to overturn the judgments of judges of the High Court because there were no High Court judges in their ranks. To that extent the argument of the Law Society can be comprehended.


6. STATE POLICY - FINANCIAL IMPLICATIONS AND THE JUDICIARY


(30) The problem is that justice is never ideal, but practical and is often conditioned by economic factors, such as the capacity of the country. Lesotho has had a Court of Appeal that is staffed by judges for whose salaries it did not have budget. Consequently before recommending a judicial appointment that involve having to provide a salary the judiciary or the Judicial Service Commission could not act alone. In this case, the issue is not independence from government or lack of impartiality or the perceived absence of these. This is the main difference between this case and that of the Law Society V Prime Minister & another.


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(31) What the Law Society is relying on is that over the years judges who sat in the High Court did not sit in the Court of Appeal. 'This change has led to the fear that judge Ramodibedi's High Court judgments would be unassailable before the Court of Appeal if as a Court of Appeal judge he continues to serve in the High Court Nightly or wrongly a perception that never existed before, developed that having a High Court judge ex officio sitting on a frequent basis in the Court of Appeal should have a negative influence on the Court of Appeal. A human mind can suspect anything and poison the atmosphere of those around it. There lies the problem.


(32) The reference point of the Law Society was the neighbouring Republic of South Africa. There, judges of the old Provincial Division did not shuttle between the Appellate Division and the Provincial Division. In the Republic of South Africa once a judge of the Provincial Division was elevated to the Appellate Division, he no more came to the Provincial Division to hear cases. This expectation of the Law Society (which is shared by the Registrars) involves the setting up and the staffing of the Court of Appeal in a new manner and appointing at least a quorum of three judges to constitute a clearly separate chamber from the High Court. This involves money and the establishment of permanently funded separate posts. Such a step is a matter of State Policy. Government will sooner or later have to approach Parliament to find the money and probably legislate to create unassailable judicial conditions. A


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Court of Appeal that is a distinct appellate chamber to which High Court Judges could be elevated might have become necessary.


(33) Mr. Justice Steyn (President of the Court of Appeal) in reply to the Law Society said of the recent appointment of Mr. Justice Ramodibedi to the Court of Appeal :-


"It was in no way intended to affect his position as judge of the High Court where he will continue to serve the cause of justice in Lesotho. I would in the circumstances therefore anticipate that this formalisation would have received your Council's full, unqualified support."


These words are extracted from the letter of Mr. Justice Steyn to the President of the Law Society dated 10th December, 2002 - it is annexed to the Law Society's founding affidavit as "LSL4". This negative perception of the Law Society might unfortunately have been triggered by M.E. Sole's application after sentence and conviction as Mr. Molyneaux said in his supporting affidavit to the opposing affidavit to these proceedings. I can only say if every little suspicion or perception an individual or group of individuals would be a yardstick no judge would ever be able to sit. However, a departure from a practice of longstanding (which served the judiciary and perceptions of justice well) should only done for good unavoidable reasons. Careful thinking and analysis should precede such a step.


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(34) Any step that any organ of state, be it government and the courts that could have financial consequences has to be first cleared with Parliament so that it could be budgeted for and funded. Since government is the door to Parliament, courts cannot do anything financial of an administrative nature (save actual adjudication in cases) without clearance, consent and participation of government. The Court of Appeal had for over 30 years been run on donated services of retired of South African judges and senior legal practitioners. To have full time judges of appeal who have to be paid - that is a state policy decision for which Parliament would have to find the money to pay those judges.


(35) It seems to me that Chapter III of the Constitution dealing with Principles of State policy provides that the financial or economic capacity and development should always be kept in mind. Consequently these principles are not automatically enforceable in the courts of law. They are to be achieved progressively, by legislation or otherwise. See Section 25 of the Constitution. Among these are the principle of equality of justice as defined in Section 26 of the Constitution. While the state is bound to provide full time judges of the Court of Appeal and this may be over due - the Judicial Service Commission ought not to appoint full time judges of appeal where non-existed before, without adequate preparation by government and financial provision by Parliament.


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(36) The Chief Justice in his speech at the opening of the High Court of the 3rd February, 2003 complained that the High Court in the past could not cope with preparing records for hearing before the Court of Appeal because of lack of capacity. He added:-" This need is rendered even more acute than otherwise because unlike in the past the Court of Appeal has directed that preparation costs in ail criminal appeals lying to that court be borne by the State. In the past this applied only to appellants condemned to death" " This new development has had the effect of inviting more appellants to lodge appeals even if only for the sake of testing the waters. Well, if it is free and is a logical consequence of the dispensation why not go for it."


(37) It seems to me that (in the above example) the Court of Appeal did not keep in mind that what Sections 25 and 26 of the Constitution say about the principle of Equality and Justice which it was trying to achieve. Secondly it seems clear that having the Judiciary and the Supreme Court under the Chief Justice but having its two portions namely the High Court and the Court of Appeal with two separate heads is at the root of its current decision-making problems. The Court of Appeal from its inception was headed by the Chief Justice until Judge Roper, at a time he was Acting Chief Justice of Bechuanaland was appointed its President around September. l965. It is time to investigate whether one person the


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Chief Justice should not head (as before) the entire Supreme Court of which the Court of Appeal is part like in other countries.


7. ORDER OF COURT


Having read the papers and heard argument on both sides;

and


Having found that in terms of the Constitution, the Laws that govern the Court of Appeal and established precedents a judge of the High Court can sit at different times as a judge of the High Court and judge of appeal in the Court of Appeal over cases he did not hear at first instance;


IT IS ORDERED THAT


  1. the application for an order declaring Mr, Justice M. Ramodibedi's continued performance of the functions of puisne judge in the High Court unconstitutional, be and is herein dismissed.


  1. Mr. Justice Ramodibedi shall continue lawfully to sit and preside over cases in the High Court as a judge of first instance. When so sitting (for the avoidance of doubt) Mr. Justice Ramodibedi in the High Court -as always - shall be addressed as Ramodibedi J (Judge). Before the Court of \ppeal Mr. Justice Ramodibedi shall be addressed as JA (Judge of Appeal).


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  1. There will be no order as to costs.


W.C.M. MAQUTU

JUDGE


For The Applicant : Mr. Mohau

For Respondents: Mr. Molyneaux