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

Media Neutral Citation: 
[2003] LSHC 9
Judgment Date: 
1 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 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 FOR THE PUBLIC SERVICE 6th RESPONDENT

ATTORNEY GENERAL 7th RESPONDENT


CORAM:

Lehohla CJ.

Ramodibedi J(A),

Guni J,


JUDGEMENT


Ramodibedi J(A),


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


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[2] First, this Court ordered the Applicant to pay almost eight million Maloti as compensation to LHDA for fraud, bribery and breach of fiduciary duty committed while Chief Executive of the Authority. The bribers were alleged to be several renowned international engineering construction companies allegedly seeking preferential treatment from the Applicant in outbidding their competitors in the construction of the Katse Dam in the Lesotho Water Highlands Project - one of the largest dams of its kind in the whole world.


[3] Secondly, this Court has again finally convicted the Applicant of bribery and fraud and accordingly sentenced him to eighteen (18) years' imprisonment which he is currently serving. He has admittedly appealed against both conviction and sentence but he obviously does not feel confident of success in that approach judging from what follows hereunder. So what must he do now to get out of this quagmire? Must he resign himself to fate and thereby sink or must he device ways and means of extricating himself? In the midst of this daunting task in deciding on an appropriate course of action beneficial to himself he has, rather belatedly, it has to be said at the outset, come up with an ingenious idea namely to attack the constitutionality of the appointment of the learned acting Judge who tried him namely the First Respondent. It is this application which is before this Court.


[4] This application seeks prayers couched in the following terms:-


"(a) Declaring the appointment of the lst Respondent as an acting Judge of the High Court in breach of section 120 (5) of the Constitution.


(b) Declaring the remuneration of the lst Respondent in breach of section


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115 (1) of the Constitution read together with section 6A of the Statutory Salaries Act No. 8 of 1972 as amended by the Statutory Salaries (Amendment) Act No. 3 of 1974.


(c) Declaring the trial of the Applicant in CRI/T/111/99 in which the 1st Respondent presided, in breach of sections 12 (1) and of 118(2) of the Constitution and therefore null and void.


(d) Granting the Applicant such further and/or alternative relief as to (sic) the Honourable Court may seem meet.


(e) Costs of suit, jointly and severally, against the 2nd, 3rd, and 4th Respondents and those Respondents who oppose this application."


[5] In order to place the Applicant's application in its proper perspective it is no doubt necessary to recount briefly the historical background and constitutional development relating to appointment of judges in this country.


[6] At the outset it should be noted that the Basotho Nation was founded by the Great Moshoeshoe I in the early nineteenth century. In 1868 he sought and obtained British protection from the marauding Boers of the time and thereafter Lesotho was ruled by Great Britain as a Protectorate until independence on 4th October 1966.


[7] Section 12 of the General Law Proclamation 2B of 1884 introduced the Roman-Dutch law as the common law of Lesotho and provided for a judicial "system" in terms of which the Resident Commissioner was the authority responsible for 'peace, order and good government'. He had jurisdiction 'to hold a Court' and to adjudicate upon all causes, civil or criminal.


[8] It was not until 1938 that a High Court was established for Lesotho in terms


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of Proclamation 57 of 1938. Section 3 of the Proclamation provided for the appointment of "the Judge of the High Court." There was to be "a Judge" assigned to the High Court appointed by the High Commissioner. There was a specific provision that in order to qualify for the position of a judge a person had to qualify to practise as an advocate in a Court in England, Scotland, Northern Ireland "or some other part of His Majesty's dominions having unlimited jurisdiction either in civil or criminal matters" and also must have been qualified for not less than five years to practise as an advocate or solicitor in such a Court.


[9] In terms of Proclamation 18 of 1954 which repealed the above mentioned Proclamation 57 of 1938 the High Court continued to exist and provision was now made for a Chief Justice and Puisne Judges with legal training and experience once more as prerequisites for appointment.


[10] The Basutoland (Constitution) Order in Council of 1959 also contained similar provisions relating to the appointment of Judges but for the first time a provision was made in Section 67 providing for removal of a Judge only for inability to discharge the functions of his office or for misbehaviour after proper inquiry and only on the recommendation of the Judicial Committee of the Privy Council.


[11] The Constitution of Basutoland (1965) continued in the same vein on the appointment of Judges and Section 106 (5) specifically provided that if the office of any puisne judge was vacant or if any such judge was appointed to act as Chief Justice, or was for any reason unable to perform the functions of his office or if the Chief Justice advised Motlotlehi (for which read the King) that the state of business in the High


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Court so required, Motlotlehi, acting in accordance with the advice of the Judicial Service Commission, had power to appoint a person who qualified to be appointed as a judge of the High Court to act as a puisne judge of that court. As will be seen later in this judgment this section is substantially similar to Section 120 (5) of the current Constitution of Lesotho.


[12] Section 106 of the first Constitution of an independent Lesotho namely the 1966 Constitution (which was subsequently suspended in 1970) was identical, word for word with Section 106 of the Constitution of Basutoland (1965) with the exception that Motlotlehi was now called the King. Section 110 established the High Court with the Chief Justice and such number of puisne judges as might be prescribed by Parliament as Judges of the Court. Appointment of judges was, in terms of Section 111 thereof, provided for in similar terms as in Section 106 of the Constitution of Basutoland (1965).


[13] On 20 April 1967 Parliament passed the High Court Act 1967 Section 3 of which provided for one office of puisne judge in addition to the office of Chief Justice established under the provisions of Section 110 of the 1966 Constitution referred to in paragraph [12] above.


[14] In 1972 the Statutory Salaries Order No. 8 of 1972 was enacted to make provision for the salaries of certain statutory office holders including judges. This Order was amended in terms of the Statutory Salaries (Amendment) Act No. 8 of 1974 to read "Act" instead of "Order."


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[15] Sections 2, 3,4, 5 and 6 of the Statutory Salaries Order 1972 as amended significantly provided for security of salaries of statutory office holders including judges in the following terms:-


"2. There shall be paid to the holder of each office set out in the first column of the Schedule the annual salary set opposite to the tide of that office in the second column of the Schedule.


3. The sums specified in the Schedule shall be paid from and charged upon the Consolidated Fund.


4. The salary prescribed in respect of the holder of any office shown in the Schedule and his other terms of service (other than allowances that are not taken into account in computing, under any law in that behalf, any pension payable in respect of his service in that office) shall not be altered to his disadvantage after his appointment.


5. When a person's salary or other terms of service depend upon his option, the salary or terms for which he opts shall, for the purposes of section 4 be deemed to be more advantageous to him than any others for which he might have opted.


6. Nothing in this Order shall be construed as prejudicing the provisions of any law which protects pension rights in respect of service as a public officer."


[16] On 8 August 1978 Parliament enacted the current High Court Act No. 5 of 1978 which repealed the High Court Act 1967. There can be no doubt in my view that this Act guarantees the independence of the Judiciary. (See Law Society of Lesotho v The Prime Minister and Another LAC 1985-89 at 136). In this regard it shall suffice to say that Section 3 provides for the appointment of judges of the High Court including acting judges.


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[17] Section 4 (1) provides that a Judge of the High Court shall vacate office when he attains the age of 75 years and in terms of subsection (3) a Judge of the High Court may be removed from office by the King acting on the advice of the Prime Minister but only for inability to perform the functions of his office. For the purposes of this case Section 3 (4) specifically provides that if the Chief Justice advises the Prime Minister that the state of business so requires, the Prime Minister may appoint a person who is qualified to be appointed as a judge of the High Court to act as judge of that court. It requires to be stressed at the outset that the Respondents rely on this section which, as will become apparent in the course of this judgment, is embodied in section 120 (5) of the Constitution of Lesotho save to say that the Prime Minister has been replaced by the King in the Constitution. It is therefore mind-boggling that Section 3 (4) of the High Court Act 1978 has still not been amended more than seven years down the line after the Constitution came into operation to effect the constitutional change in question. Be that as it may, Section 120 (5) prevails as the supreme law in terms of Section 2 of the Constitution which provides that if any law is inconsistent with the Constitution that law shall, to the extent of the inconsistency, be void.


[18] In order to complete the historical background relating to the appointment of judges in this country, mention must also be made of the current 1993 Constitution of Lesotho. Section 118 vests the judicial power in the courts of Lesotho consisting of the Court of Appeal, the High Court, Subordinate Courts and Courts-Martial and such tribunals exercising a judicial function as may be established by Parliament.


[19] Section 115 (1) on which the Applicant relies, provides that salaries of


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statutory office holders including judges shall be prescribed by or under an Act of Parliament. Subsection (2) provides that such salary shall be a charge on the Consolidated Fund. Subsections (3) and (4) echo substantially subsections (4) and (5) of the Statutory Salaries Order 1972 as amended.


[20] Section 119 specifically establishes a High Court with unlimited original jurisdiction to hear and determine any civil or criminal proceedings and the power to review the decisions or proceedings of any subordinate or inferior court.


[21] Section 120 provides for the appointment of judges of the High Court all of whom are men of legal training and are appointed by the King acting in accordance with the advice of the Judicial Service Commission except the Chief Justice who is appointed by the King acting in accordance with the advice of the Prime Minister.


[22] Section 121 provides for security of tenure in that the prescribed age for retirement of Judges is seventy-five years or such other age as may be prescribed by Parliament. Moreover in terms of subsection (3) the Chief Justice and any other Judge of the High Court may be removed from office by the King only for inability to perform the functions of his office or for misbehaviour but even then such removal may only take place after certain procedural steps have been complied with. Because of the importance of subsection (5) in this regard, it proves necessary to reproduce it in full:-


"(5) If the Prime Minister or, in the case of a puisne judge, the Chief Justice represents to the King that the question of removing a judge under this section ought to be investigated, then -


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  1. the King shall appoint a tribunal which shall consist of a Chairman and not less than two other members, selected in accordance with the provisions of subsection (6) from among persons who hold or have held high judicial office; and


  1. the tribunal shall enquire into the matter and report on the facts thereof to the King and advise the King on what action is to be taken in relation to the Chief Justice or other judge.

(6) When the question of removing the Chief Justice is to be investigated the members of the tribunal shall be selected by the Prime Minister, and when the question of removing a puisne judge is to be investigated they shall be selected by the Chief Justice.


(7) If the question of removing the Chief Justice or a judge from office has been referred to a tribunal under subsection (5), the King, acting in accordance with the advice of the Prime Minister in the case of the Chief Justice and acting in accordance with the advice of the Chief Justice in the case of a puisne judge, may suspend the Chief Justice, or as the case may be, the judge, from the exercise of the functions of his office and any such suspension may at any time be revoked by the King, acting in accordance with such advice as aforesaid, and shall in any case cea m(. e to have effect if the tribunal advises the King that the Chief Justice or the judge should not be removed from office."


[23] It requires to be noted that Sections 118, 119, 120 and 121 of the Constitution referred to above are specially entrenched by Section 85 (3) in terms of which a bill to alter such sections may not be submitted to the King for his assent


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unless such bill has, not less than six months after its passage by Parliament, been submitted to the vote of the electors qualified to vote in the election of the members of the National Assembly, and the majority of the electors voting have approved it. That, I observe, is indeed a measure of the guarantee of independence bestowed on the judiciary and Judges in particular.


[24] At this point I must say something about the salient facts giving rise to the present application. They are hardly in dispute and are as follows:-


[25] In May 2000 (the exact date does not appear in the papers) the King, acting on the advice of the Judicial Service Commission, appointed the First Respondent as acting judge specifically to hear Applicant's aforesaid criminal trial No. CRI/T/111/99. In so doing the King admittedly acted in terms of Section 120 (5) of the Constitution and thereafter the trial in question commenced to finality without any objection by the Applicant. I return to this aspect later.


[26] The Applicant's complaints in this matter may conveniently be summarized with reference to the contents of paragraph 13 of his founding affidavit wherein he states the following:


"The issues that I intend to deal with in this application do not concern the merits of my trial in CRI/T/111/99. The salient issues that I intend to focus on concern the appointment of the 1st respondent as acting judge and the special remuneration that he received contrary to the law, and whether his appointment did not offend sections 12 (1) and 118 (2) of the Constitution and consequently compromise my right to a fair trial by a competent, independent and impartial court as enshrined in the Constitution."


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[27] As to details the Applicant relies principally on six (6) complaints namely:-


(1) That First Respondent was appointed acting judge while he was judge Advocate. Since, however, this is not the Applicant's case as pleaded in the "Notice of Constitutional Motion" this complaint merits no attention of the Court. It is without merit and, as such, requires no further elaboration. It shall suffice merely to say that in terms of Section 14 (particularly subsection 2 thereof) of the High Court Act 1978 an acting judge is not precluded from holding any other office of profit. That section requires quotation in full as follows:-


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


(2) Subsection (1) shall not apply to a judge who

may be temporarily appointed under section 3(4)."


(2) That First Respondent was "a special judge" for a "specific purpose" of presiding in the Applicant's case only. It is the Applicant's case in this regard that appointment of a judge to preside in a specific case compromises the principles of judicial independence and ethos of impersonal judicial appointments as envisaged in Sections 12 (1), 118 (2) and 120 (5) of the Constitution. For convenience these sections require to be quoted in full. They provide as follows:-


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


"118 (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."


"120. (5) If the office of any puisne judge is vacant or if any such judge is appointed to act as Chief Justice or is for any reason unable to perform the functions of his office or if the Chief Justice advises the King that the state of business in the High Court so requires, the King, acting in accordance with the advice of the Judicial Service Commission, may appoint a person who is qualified to be appointed as a judge of the High Court to act as a puisne judge of that Court."


(3) That the Chief Justice did not advise the King as enjoined thereto by Section 120 (5) of the Constitution that the state of business of the High Court required the appointment of an acting judge.

(4) That First Respondent was "not paid a salary and other benefits that a judge of a (sic) High Court is entitled to in terms of the law."


(5) That the charging of a "fee" by the First Respondent while holding the office of a judge is incompatible with the principle of judicial independence and parity in remuneration. Thus the Applicant complains that the appointment of First Respondent gives rise to a perception that the latter was granted certain privileges "in order


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to deliver a criminal trial outcome that would be favourable or desirable to the Executive." It is his case that the remuneration paid to First Respondent was intended "to influence or induce him to ingratiate himself to (sic) the Executive."


(6) That on the basis of the aforegoing factors the Applicant's constitutional right to a fair trial by "a competent, independent and impartial court" was "severely compromised" by the appointment of the First Respondent to preside in the matter who, so it is alleged, "was not a competent, independent and impartial court as envisaged in the Constitution."


[28] As to complaints (2), (4), (5) and (6) above, it requires to be noted at the outset that the Respondents do not deny that First Respondent was appointed specifically to preside over the criminal trial in question only. Nor do they seek to deny that he was not paid a salary and other benefits that a judge of the High Court is entitled to in terms of the law. As I read the papers in this matter, they concede that First Respondent was paid far more than an ordinary High Court judge. It is their contention, however, that these factors do not impact negatively on the competence, independence and impartiality of the First Respondent as alleged or at all. They accordingly deny that the provisions of Sections 12 (1), 118 (2) and 120 (5) of the Constitution were violated in the appointment of First Respondent. In this regard it is their case that the suggestion that a man of First Respondent's calibre who is indeed admittedly a former Chief Justice of this country and a former judge of Fiji and Zambia with a "distinguished career" stretching over some 30 years as a judge would be seen


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by a reasonable man to be prepared to "deliver a criminal trial outcome that would be favourable or desirable to the Executive" because of the remuneration in question is "outrageous." I shall deal with this aspect more fully later.


Applicant's complaint (3): That the Chief Justice did not advise the King.


[29] It will no doubt be convenient if I start at the beginning namely with complaint (3) above which relates to the allegation that the Chief Justice did not advise the King that the state of business of the High Court required the appointment of an acting judge as enjoined thereto by Section 120 (5) of the Constitution.

[30] As I read this section as fully reproduced in paragraph [27] above, however, there does not have to be a vacancy in the office of puisne judge for the purposes of this case. It suffices if the Chief Justice advises the King that the state of business in the High Court requires an acting judge. The real question for determination by this Court therefore is whether the Chief Justice did advise the King as enjoined by the section. This is a factual question that must be determined from the surrounding circumstances. Now what are the facts in this regard?


[31] In determining the issue raised in the preceding paragraph it is pertinent, in my view, to make an observation that the Applicant's complaint is based on inadmissible hearsay averments contained in paragraph 30 of his founding affidavit wherein he states as follows:


"The information 1 have is that the Chief Justice did not advise the King that


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the state of business of the High Court required the appointment of an acting judge."


No attempt was made to file an affidavit of a person who had personal knowledge in the matter and for this the Applicant must face the consequences following upon reliance on inadmissible hearsay evidence.


[32] For their part the Respondents deny the allegation (hearsay as it is) that the Chief Justice did not advise the King that the state of business in the High Court required appointment of an acting judge. Significantly the Chief Justice himself has filed an affidavit in support of the Respondents' version on this issue. It need hardly be mentioned that as a man of honour occupying the highest judicial seat in the country at the material time, the Chief Justice's attitude, though admittedly not binding on this Court, cannot be taken lightly. It must be accepted, in my view, that he made his sworn statement in support of the Respondents' case with a full sense of responsibility befitting his high judicial office. It would indeed be strange if he instigated the appointment of the First Respondent without going through proper channels as enjoined by Section 120 (5) of the Constitution. In all the circumstances, therefore, this is a fit case, as it seems to me, where the version of the Respondents should be preferred to that of the Applicant on the authority of Plascon-Evans Paints v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 at 634-635.


[33] I am fortified in the view I take of the matter by the letter "MES3" written by the Acting Chief Justice as Chairman of the Judicial Service Commission. The letter is dated 23 May 2000 and is addressed to the Private Secretary to His Majesty the King. It bears the following contents which are no doubt crucial to the determination


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of the matter.


"Private Secretary to His Majesty,

Office of His Majesty The King,

The Royal Palace,

MASERU


Dear Sir,


re: Appointment of Mr Justice Brendan Peter Cullinan


I have the honour to address His Majesty The King on the above subject. Section 120 (5) of The Constitution provides as follows:


"Puisne judge shall be appointed by The King, acting in accordance with the advice of the Judicial Service Commission, if qualified to be appointed as a judge of the High Court."


Mr. Justice B.P. Cullinan was once the Chief Justice of the High Court.


At its meeting held today, the 23rd May 2000, the Judicial Service Commission requested me to inform His Majesty, which 1 have the honour now to do, that the Commission advises His Majesty to appoint -


Mr. Justice B.P. Cullinan


as acting Puisne judge of High Court. This would enable him to preside in the Masupha Sole v LHDA case due to be heard during June, 2000.


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


1 have the honour to remain

His Majesty's most obedient servant,


(Signed by: B.K.Molai)

Chairman - Judicial Service Commission "


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[34] In my view the last sentence in "MES3" constitutes substantial compliance by the Chief Justice with Section 120 (5) of the Constitution. In those few words he clearly advised the King that the state of business in the High Court required the appointment of an acting judge. Afterall there is nothing in the section to suggest that such advice must be given before the Judicial Service Commission actually tenders its own advice to the King for appointment nor does such advice have to be tendered separately. Any suggestion to the contrary is, in my view, unjustified and indeed contrived.


[35] In any event it is trite law that the fact that a person acted in a public office is prima facie evidence of the validity of his appointment to such office. In other words, evidence that a person acted in a public office as in casu gives rise to a presumption that he was lawfully appointed. This is known as a presumption of regularity (omnia praesumuntur rite esse acta) which, as in this case, operates in favour of the Respondents and burdens the Applicant to rebut it. See Ministry of Home Affairs and Local Government & 3 Others v Mateka Sakoane C of A (CIV) No. 13/2001 (unreported) per Court of Appeal of Lesotho. Put differently the onus is upon the applicant to show that the appointment is invalid. See Deitch v Smuts NO and Others. 1939 TPD 58 at 63. In my view the Applicant has failed to discharge such onus.


[36] It follows from the aforegoing considerations that the probabilities are overwhelming in my view therefore that the Chief Justice duly complied with Section 120 (5) of the Constitution by advising the King that the state of business in the High


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Court required the appointment of an acting judge to preside over Applicant's criminal trial in question. The Applicant's complaint based on this issue must therefore fail.


[37] In my view, the conclusion reached in the preceding paragraph relating as it does to the constitutionality of the First Respondent's appointment decides the matter. But lest it be thought that they have been overlooked, something must be said about Applicant's complaints (2), (4), (5) and (6) above. I turn then to deal with them shortly and I do so in the context of general constitutional principles relating to acting judges and judicial independence.


Applicant's complaint (2): That First Respondent was

"a special judge."


[38] As will be recalled from paragraph [27] above the Applicant complains that the First Respondent was appointed for a specific purpose of presiding in his criminal trial No. CRI/T/111/99 only. As I have pointed out already, the Respondents do not dispute this fact. They challenge Applicant's contention that the First Respondent's appointment was unconstitutional merely because he was appointed for a specific case. In this regard they point out and indeed I accept this as it is common cause, that acting appointments for specific cases have, in the past, been made in such cases as Khauoe v Attorney General and Another 1995-96 LLR & LB 470 (Dumbutshena AJ) and W.C.M. Maqutu v The Attorney General and Another 1997-98 LLR 448 (Tip AT).


[39] It seems to me that to uphold Applicant's contention that it is unconstitutional to appoint an acting judge for a specific case, the Court would have to ignore the following underlined words appearing in subsection 120 (5) of the


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Constitution "or if the Chief Justice advises the King that the state of business in the High Court so requires." I regret to say that this contention cannot be accepted as it is contrary to the modern purposive approach in interpreting statutes. In my view, two principles emerge from a proper interpretation of the words quoted in this subsection. Firstly the word "or" must, in my judgment, be read as being disjunctive (see also Section 3(1) of the Interpretation Act 1977) and thus introduces a completely independent ground upon which the Chief Justice may advise the King. Secondly the words "state of business" are wide enough to include a "specific case" as in casu. This is more so in the particular circumstances of this case bearing in mind that the Applicant does not dispute the Respondents' version to the effect that an acting judge from outside the country was, in the words of the Honourable Attorney General Mr. Lebohang Fine Maema in paragraph 6 of his Answering Affidavit, rendered necessary because of the complexity of the case, the time it would take for completion, the legal issues likely to be thrown up, the number of the accused, the fact that this was the first time this type of case had arisen in Lesotho, as well as its "international ramifications." Nor is it disputed that the Chief Justice himself shared these concerns and also held the view that the hearing of the matter was likely to be "disruptive" to the other proceedings of the High Court unless an acting judge was appointed specifically for Applicant's case. Indeed it is pertinent to observe that the Applicant does not even dispute Respondents' version that there were no suitable candidates for the post in question within the country and that members of the local legal fraternity who are from time to time called on to take appointments as acting judges, would not have the background experience to command the respect which was a prerequisite for the acting judge in question.


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[40] The aforegoing factual background, in my view, constitutes a "state of business" in the High Court which merited appointment of an acting judge in the matter. It matters not then whether one calls him a "special judge" or not.


Applicant's complaints (4) and (5): Remuneration


[41] At the outset it requires to be stated that security of salary is one of the important principles of judicial independence. The other principles are of course security of tenure and administrative independence. I deal then with the first, namely security of salary and in doing so I observe straightaway that it is not the Applicant's case that First Respondent did not have security of salary. On the contrary his case is rather unusual and perhaps out of line with the run-of-the-mill constitutional cases in that he literally complains that the First Respondent earned too much salary which the permanent judges were not getting.


[42] I must confess to some difficulty in seeing how too much salary could have affected First Respondent's security of salary and independence. On the contrary I would have thought that the salary in question would enhance the learned judge's independence rather than compromise it as alleged. I shall bear in mind however that the Applicant's real complaint is that such salary was calculated to influence the First Respondent to "deliver a criminal trial outcome" that would be favourable or desirable to the Executive. That, as it seems to me, is the broad issue that the Court is called upon to decide in so far as First Respondent's remuneration is concerned.


[43] In my view First Respondent's remuneration must be judged against the


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background referred to in paragraph [39] above. Such background is uncontested and I accordingly accept it as correct namely that the appointment of First Respondent was necessitated by the complexity of the case, the legal issues involved, the number of the accused, the fact that this was the first case of its type in this country as well as the international ramifications of the case. Similarly I accept the Respondents' uncontested version that the case was likely to be "disruptive" to the other proceedings of the High Court unless an acting judge was appointed specifically for the case in question.


[44] More importantly I accept the Respondent' s uncontroverted version that First Respondent's remuneration was "a fair figure" representing what he himself required and negotiated with the Ministry of Justice taking into account his experience and standing as well as the complexity of the case and the fact that the figure in question was "less than Senior Counsel from beyond the borders of Lesotho would have charged."


[45] That the First Respondent was perfectly within his rights to negotiate a salary that was acceptable to himself can be gleaned from Section 5 of the Statutory Salaries Order 1972 as amended referred to in paragraphs [14] and [15] above. For convenience it will be recalled that that section provides that when a person's salary or other terms of service depend upon his option, the salary or terms for which he opts shall be deemed to be more advantageous to him than any others for which he might have opted and that accordingly such salary shall not be altered to his disadvantage after his appointment. In my view this accords with the constitutional principle of security of salary as more fully set out in Section 115 of the Constitution particularly


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subsection (4) thereof which is in similar terms as Section 5 of the Statutory Salaries Order 1972 as amended.


[46] In the same vein I accept the Respondent's unchallenged version that prior to approaching First Respondent the Attorney General himself, namely 7th Respondent, travelled to Bloemfontein and negotiated with the recently retired Judge-President of the Free State Provincial Division of the South African High Court, Mr. Justice E.K.W. Lichtenberg to take up the acting appointment for Applicant's case. It is not disputed that the latter initially agreed but later declined on the ground that the matter was "simply to heavy, would probably consume a great deal of time."


[47] Admittedly the Respondents did not stop with Mr. Justice E.K.W. Lichtenberg but I also accept their unchallenged version that two more retired judges of the Natal Provincial Division of the High Court namely Mr. Justice P.W. Thirion and Deputy Judge President, Mr. Justice J.J. Broome were also approached to take up the acting appointment in question. Neither of them was prepared to take the appointment.


[48] It requires to be stressed, and indeed the Respondents are unchallenged in this regard, that the First Respondent was himself initially reluctant to take up the appointment in question. He only eventually agreed "on terms acceptable to him."


[49] Weighing all of the aforegoing considerations I am satisfied that First Respondent's remuneration represented a "fair figure" in the context of the case. 1 therefore reject Applicant's suggestion that such remuneration was calculated to


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influence First Respondent to deliver a "criminal trial outcome". In my judgement, there was nothing unconstitutional about the remuneration in question. In this regard I am mainly attracted by the following remarks of the Court of Appeal in Law Society of Lesotho v The Prime Minister and Another (supra) at 137:


"the second important difference between the acting Judge and the ordinary Judge is that the former may hold other offices of profit whereas the latter may not. One can appreciate on what grounds of expediency this distinction is made. It may be expecting too much of a practitioner who acts as a Judge for a short period that he should divest himself of his other offices or positions."


[50] By analogy, I go further and say that it may be expecting too much of an acting Judge that he should be prevented from negotiating a salary that would in effect put him in the same position as he would have obtained if he had been engaged full time elsewhere. On the contrary 1 am satisfied from a proper reading of the words "his option" and "he opts" used in subsection 115 (4) of the Constitution that an acting judge has a constitutional right to negotiate his own salary. Whether or not it is desirable to do so is in my view a different issue altogether.


Applicant's complaint (6): Was the constitutional principle of Judicial Independence compromised?


[51] It requires to be stated at the outset that there is no one correct formula for judicial independence and that, provided the essential principles of judicial independence as set out at paragraph [41] are observed, it is not strictly necessary for all courts anywhere in the world to meet the same standard of judicial independence. If authority be needed for this proposition the leading Canadian Supreme Court case of Valente v The Queen 1985 24 DLR (4th) 161 (SCO 183 is directly in point.


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Although that decision is not binding on this Court it is nevertheless of persuasive authority and in the absence of any similar authority in this country it is a decision which I am happy to follow.


[52] Writing about the constitutional position in England Cownie & Bradney: English Legal System in Context: 2nd edition page 164 categorically state that "complete independence for the judiciary is, of course, impossible." It is not difficult to understand the reason for this proposition as, for example, the judiciary does not normally control the funds which are necessary to enhance its independence and effectiveness. In the first place the budget for the judiciary is approved by the Legislature which does not always fully appreciate the needs of the judiciary and thus often cuts them mercilessly under misguided perception that the judiciary is non-income-generating and consequently unimportant. Secondly and as Cownie & Bradney (supra) rightly point out, "the central threat has been seen to come from the executive via mechanisms of financial control." In this connection the following words of Sir Nicholas Browne-Wilkinson: Independence of the Judiciary in the 1980. (19881 bear reference:


"Judges are sitting in an environment wholly determined by executive decision in the Lord Chancellor's Department, which is in turn operating under financial constraints and pressures imposed by the Treasury. The yard-stick for decision making is financial value for money, not the interests of justice."


[53] In Sekoati and 48 Others v President of the Court Martial and 2 Others C of A (CIV) No. 18 of 1999 (unreported) the Lesotho Court of Appeal held at page


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21 thereof that no judicial system is entirely devoid of any relationship with the legislative or executive branches of government. I respectfully agree.


[54] Be that as it may, I am satisfied from a consideration of the constitutional and legislative provisions frilly set out above, from pre-independence to post-independence, that Lesotho has always substantially guaranteed the independence of the judiciary. In this connection I respectfully associate myself with the following remarks of the Court of Appeal in Law Society of Lesotho v The Prime Minister (supra) at 136:


"(p)ausing at the year 1978, I think that it is clear that some of the most important features of what is often labelled the independence of the judiciary are to be found in the High Court Act" (1978).


[55] I go further and say that the independence of the judiciary is in my view now fully guaranteed in terms of Sections 85, 118, 119, 120 and 121 of the current Constitution of Lesotho as fully set out above. It must therefore be accepted that it is within this context that First Respondent presided over Applicant's criminal trial in question.


[56] It requires to be emphasized that the question that arises in every case is whether a well-informed, thoughtful and objective reasonable person or observer would perceive the tribunal in question as independent. This is an objective test which must always be properly contextualised depending on the facts of each case. See Sekoati and 48 Others v President of Court Martial and 2 Others (supra), Van Roven and Others v The State and Others 2002 (5) SA 246 (CC) at 273.


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Before concluding Applicant's complaint based on the alleged compromise of judicial independence it is necessary to consider the question of acting appointments.


Acting Appointments


[57] Now it is so, that acting appointments are by their very nature ad hoc arrangements ideally designed to deal with a problem of a temporary nature as in casu. It would therefore often be impracticable to expect the same constitutional guarantees for acting appointments in the same way as permanent positions. In this regard I respectfully associate myself with the following apt remarks of the Court of Appeal in Law Society of Lesotho v The Prime Minister and Another (supra) at 136:

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


[58] In Rex v Deitch 1939 AD 178 at 185 Stratford CJ writing for the Full Bench of the Appellate Division in South Africa rejected the notion that judicial independence is destroyed pro tanto by the appointment of acting Judges. He expressed himself in no uncertain terms that "whilst so temporarily acting the independence of such Judge is as unfettered as that of an ordinary Judge" adding that "the only possible objectionable feature of the appointment is that it is not for life ...but for a period determined by antecedent agreement. But during that period the acting Judge is as completely free from executive interference as is an ordinary Judge. Looking at such appointments from an idealistic, but, 1 think, extreme, point of view


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something may be said against them on the score of some lack of independence of the appointees. But such criticisms are somewhat fanciful and we have to weigh against them the very practical necessity of such appointments in the interests of good order and government." (Emphasis added).


These remarks are no doubt apposite to the instant case.


[59] In Re Certification of the Constitution of the RSA 1996 (4) SA 744 (CC) at 814-815 the Constitutional Court of South Africa recognised the special role played by acting judges in the following terms:


"Acting appointments are essentially temporary appointments for temporary

purposes.....the use of part-time Judges has become a feature of the Court

system in England, which is a country always associated with an independent Judiciary. Such appointments are made there for the same reasons as they are made in South Africa: 'to assist the work of the Courts' and 'to give to possible candidates for full-time appointments the experience of sitting judicially and an opportunity to establish their suitability'."


I respectfully agree.


[60] Last but not least, I refer to the case of Norton v Shelby County. 118 U.S. 425 (1886) in the United States. The importance of that decision lies in the fact that the United States Supreme Court has long recognized that a judge acting under colour of law and the acquiescence of the parties and the public is a de facto judge whose rulings bind all interested parties notwithstanding that such judge's authority may later prove to be illegitimate or even unconstitutional. This principle, it has to be stressed, is founded upon considerations of public policy or necessity for the protection of the


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public and individual litigants whose interests may be affected thereby. In this connection I am mainly attracted by the following remarks of Justice Frank F. Drowota III writing a unanimous decision of the Full Bench in the Supreme Court of Tennessee in Howard C. Bankston v State of Tennessee - Hamilton Criminal No. 03501-9409 -CR-00089 (Filed 25 September 1995):-


"For the good order and peace of society their (de facto judges) authority is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined. It is manifest that endless confusion would result if in every proceedings before such officers their title could be called into question."


[61] It is significant that the Applicant did not challenge the jurisdiction of First Respondent to preside in the criminal trial in question. He must therefore be taken to have acquiesced therein. In fact on his own admission he submitted to First Respondent's jurisdiction on legal advice for that matter. In this regard this is what he deposes to in paragraph 18 of his founding affidavit-


"18. Even before the lst respondent took over full-time his duties as presiding judge in my trial, my first reaction was to instruct my lawyer to apply for his (1st respondent's) recusal as presiding judge because 1 suspected that the office of the 7th respondent (the Attorney General) had had a hand in his appointment as an acting judge. However, I was advised by my attorney that I should not apply for the recusal of the 1st respondent as presiding Judge because I did not have any concrete evidence of the alleged involvement of the office of the 7th respondent in facilitating the appointment of the 1st respondent as an acting judge specially to preside in my trial. In the circumstances, notwithstanding my suspicions about the manner in which the 1st respondent had been appointed as an acting judge, I had no alternative but to accept his appointment as an acting judge and to submit to his authority."


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[62] The instant situation is, as it seems to me, analogous to that which obtained in Rex v Deitch (supra) wherein Stratford CJ, expressed the viewpoint of the Appellate Division in the following terms:


"Objection to the validity of the appointment of Van Soelen A.J. was taken only after verdict was pronounced by the Jury. That objection should have been taken at an earlier stage of the proceedings - a course which would have been in conformity with the analogous provisions of sec 144 of Act 31 of 1917. By adopting the course which he did the accused sought to gain an advantage which he was not entitled to: he might have been acquitted by the jury in which event the jurisdiction of Van Soelen A.J. would never have been objected to. Had the objection been taken ab initio the validity of the appointment of Van Soelen A.J. could have been then and there properly investigated. This course was not adopted and it is now too late for the accused to attempt to supplement the record by putting in evidence as to the precise terms of the appointment of the acting judge."


[63] At this point it is no doubt further useful to bear in mind the following remarks by the Supreme Court of Tennessee in the case of Howard C. Bankston (supra):


"As alluded to in Beaver, "disastrous" consequences would follow if we were to automatically invalidate all acts of municipal judges not elected in accordance with the Tennessee Constitution: hundreds of otherwise valid convictions could potentially be nullified; and those defendants would have to be retried. This would put at risk settled rights, entail a substantial expense to the taxpayers of this state and place an additional load upon our already overburdened judicial system. We cannot countenance such an extreme result, and therefore hold that since the defendant did not challenge the jurisdiction of the municipal court either in that court or on direct appeal, Town of South Carthage does not apply."


[64] The Applicant's objection based on the involvement of the Attorney


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General (7th Respondent) in the appointment of First Respondent is in my view completely devoid of any merit. The Attorney General is a key role player in the appointment of judges in terms of the Constitution not only in his capacity as Attorney General but also in his capacity as a Member of the Judicial Service Commission which recommends judicial appointments to the King. In any event I accept the principle laid down in Re Certification of the Constitution of the RSA (supra) at 814 that the mere fact that the executive makes or participates in the appointment of Judges is not inconsistent with the doctrine of separation of powers or with judicial independence.


[65] Be that as it may, the evidence is, in my view, uncontestable that First Respondent was actually appointed by the King acting in accordance with the advice of the Judicial Service Commission in terms of Section 120 (5) of the Constitution.


[66] In conclusion I accept the Respondents' contention that it is "outrageous" to suggest that a judge of First Respondent's standing as fully set out in paragraph [28] above was likely to be biased or would indeed be prepared to "deliver a criminal trial outcome that would be favourable or desirable to the Executive". I think that is an insult to the integrity of the learned judge in question. It will be recalled from paragraph [28] above that he has admittedly had a long and distinguished career stretching over some 30 years as a judge not only in Lesotho but also in Fiji and Zambia. He is a former Chief Justice of Lesotho and it is not disputed that such is his unquestionable stature as an eminent judge that his judgments are reported in the Commonwealth Law Reports.


[67] Besides, it is not without significance that First Respondent has admittedly


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taken a judicial oath to administer justice to all persons alike, without fear, favour or prejudice and in accordance with the law. Such oath was binding on his conscience throughout the trial. There is no slightest suggestion that he has failed to observe this judicial oath in presiding over Applicant's criminal trial in question. Furthermore there is no factual evidence to show that he was anything but competent, impartial and indeed independent of the Executive in disposing of the trial. On the contrary, I accept the uncontroverted version of the learned Director of Public Prosecutions Mr. L.L, Thetsane (Third Respondent) that First Respondent "conducted the applicant's trial in an impeccably fair manner." Indeed in paragraph 17 of his replying affidavit the Applicant was himself constrained to concede that in his founding affidavit he has not suggested actual bias adding "nor have I suggested that First Respondent is guilty of judicial dishonesty."


[68] In the light of the aforegoing considerations I am compelled to the conclusion that the impression of a well-informed, thoughtful and objective reasonable person or observer would no doubt be that Applicant's criminal trial in question was fair and conducted by an impartial Court which was independent and free from interference.


[69] Weighing all of the above-mentioned considerations I am of the view therefore that all the Applicant's complaints are without any substance. This application merits refusal and it is accordingly dismissed with costs including the costs of two counsel.


[70] Before closing this judgment I should like to record the Court's


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appreciation for the assistance rendered to it by Respondents' Counsel. They made the task of the Court easier. Indeed such was the masterly presentation of Adv. HP. Vilioen SC that Mr. Phoofolo for the Applicant literally had no answer in reply. Instead he made a startling proposition that his client preferred to address the Court in person. When the Court rejected this novel procedure he sought and was duly granted a short adjournment after which he informed the Court that his client had withdrawn his instructions and that accordingly he was withdrawing from the matter as attorney of record. Thus the stage was set for the Applicant to address the Court in person in reply as had previously been suggested. But when the Court drew his attention to the fact that in terms of procedure his reply could only be on points of law and not facts at that stage of the proceedings the Applicant freely elected not to say anything further by way of reply and thus rested his case as he was entitled to.


[71] It is a strange twist of events that this judgment should end where it started namely with Applicant's typical ingenious attack on the judges presiding over his cases. This no doubt demonstrates his desperation as fully set out in paragraph [3] above. In this regard it will be recalled that the Honourable Acting Judge Cullinan (First Respondent) was allowed to preside over Applicant's criminal case to finality without any objection. True to form, the Applicant allowed the present application to proceed on 10 December 2002 without any objection until judgment was reserved on the same day to 17 December 2002. On 12 December 2002 Applicant embarked upon another ingenious idea, that is to attack two members of this panel by seeking their recusal on the unfounded and manifestly contemptuous allegation that they are "biased." These are my Brother The Chief Justice and myself.


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[72] It requires to be mentioned that the Applicant's application for recusal has already been dismissed for reasons which will be contained in a separate judgment of this Court. It shall suffice merely to say that there was no justifiable explanation furnished for the delay in launching the application except to demonstrate Applicant's lack of bona fides in the matter. Not only is the application for recusal devoid of merit but it is now clear to the Court that it amounts to unjustified delaying tactics in the hope that it might favourably affect the outcome of Applicant's criminal appeal in question. While it is perhaps true to say that a drowning man clutches at straws this case no doubt borders on the extreme. There is surely a limit beyond which tactical ploys can be taken.


[73] In the result the following order is made:


(1) the application is dismissed with costs including those occasioned by the employment of two counsel.


(2) the Registrar is hereby directed to attach a copy of this judgment to the record of proceedings in Applicant's criminal appeal case number C of A (CRI) 5 of 2002.


M.M. Ramodibedi

JUDGE


I agree:


M.L. Lehohla CHIEF

JUSTICE


I agree:


J.K. Guni

JUDGE


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For Applicant : Mr. E.H. Phoofolo


For 2nd, 4th, 5th, 6th

and 7th Respondents : Adv H.P. Viljoen S.C. (with him

Adv H.M. Raubenheimer S.C.)