Court name
Court of Appeal
Case number
C of A (CRI) 5 of 2021

Ramoepana v The Crown (C of A (CRI) 5 of 2021) [2021] LSCA 38 (12 November 2021);

Law report citations
Media neutral citation
[2021] LSCA 38
Coram
Mosito P
Musonda AJA
Chinhengo AJA

 

 

 

IN THE COURT OF APPEAL OF LESOTHO

HELD AT MASERU                                                       C OF A (CRI) 05/2021

CRI/T/0002/2018

In the matter between:

 

PITSO RAMOEPANE                                                     APPELLANT

 

AND

 

THE CROWN                                                                 1ST RESPONDENT

TLALI KENNEDY KAMOLI                                           2ND RESPONDENT

LITEKANYO NYAKANE                                                 3RD RESPONDENT

MOHLALEHI SEITLHEKO                                            4TH RESPONDENT

HEQOA MALEFETSANE                                               5TH RESPONDENT

 

CORAM:               K.E MOSITO, P

P. MUSONDA, AJA

N.T. MTSHIYA, AJA

 

HEARD:                21 OCTOBER 2021

DELIVERED:       12 NOVEMBER 2021

 

 

SUMMARY

Administrative Law- when the Court may interfere with the DPP’s exercise of discretion or the lower Court’s discretion- The appellate Court will be slow to interfere with the exercise of discretion unless there is demonstrable irrationality- Such a challenge has to be done by notice of motion as these have to be review proceedings- appellant was not compliant with procedure, Section 59 of the Subordinate Court Order ought to have been specifically pleaded.- Appeal dismissed.

 

                                           JUDGMENT

 

P. MUSONDA AJA.

Introduction

[1]    This is an appeal against the judgement of the High Court (Hungwe AJA), in which the lower court dismissed the appellant’s plea of lack of Jurisdiction of the High Court to try him summarily on offences that may be triable by the Subordinate Court: On 5th May 2021 the appellant filed a notice of intention to object to the Jurisdiction of the High Court in terms of Section 160 of the Criminal Procedure and Evidence Act 1981. In essence such a plea challenges the court’s Jurisdiction to try the crimes accused person is charged with.

Background

[2]    In the court a quo Crown Counsel formally applied for an amendment to indictment on the 10 May 2021. Following the formal application and submissions of defence Counsel. The learned Judge made the following Order;

(i)     That the Registrar be and is hereby directed to appoint Counsel for the third accused, Litekanyo Nyakane;

(ii)    That Counsels prepare heads of argument addressing the following issues:

(a) The proposed amendment to the indictment filed by the Director of Public Prosecutions dated 10 May 2021 in place of the Original Indictment filed in 2018 dated 21 December 2017;

(b) The objection to Jurisdiction filed on behalf of the accused;

(c) The said heads of Argument to be filed on or before 13 May 2021;

(d) The oral argument be presented on 14 May 2021.

The learned Judge reminded Counsel that he had decided that since a plea of Jurisdiction raised a question of law, in his view there was no need to call evidence.

Appellant case in the Court a quo

[3]    Advocate Molati, for the first accused valiantly argued that his Client faced charges of attempted murder, which offences the Subordinate was seized with Jurisdiction. The Crown had not tendered any evidence upon which the decision of the Director of Public Prosecutions could be justified. It could only be inferred that the DPP acted in terms of Section 144 to summarily indict the accused. In his submission the exercise of the power vested in the DPP to summarily indict a person suspected of having committed a criminal offence without a preparatory examination having been held, must necessarily result in prejudice. The prejudice includes the loss of an otherwise available appellate structure in the event of a conviction. Further, so he submitted, the accused will of necessity be forced to pay higher legal costs from having to defend themselves in the High Court, when the matter would have cost less in terms of fees chargeable in the magistrates Court. In any event, there appeared to be selective application of the discretion as similarly placed accused persons are currently standing trial in the lower court. No explanation was given regarding the decision to indict the accused in the High Court.

[4]    In the event the court found that it had no Jurisdiction, as that Jurisdiction is exercisable by the Subordinate Court in terms of Section 59 of the Subordinate Courts Order 1988. He argued that the court did not have the benefit of evidence from either party. The Court therefore has no basis upon which it can decide whether or not it has Jurisdiction. Section 168 was peremptory so he argued, in that it uses the word “shall” in directing how to proceed where an accused person tenders a plea of lack of Jurisdiction.

[5]    The Court was referred to the case of Mda v Director of Public Prosecutions, where Mtambanengwe AJ held that:

“The reasons advanced by the DPP for indicting the applicants were not rational grounds for the decision to indict. The court held that the DPP had considered matters that the DPP had no right to take into account. Further, it was held that the DPP acted on no evidence to indict.”

Similarly, there was no evidence before the court as to what grounds the DPP acted upon in her decision to indict the accused in the High Court rather than the Magistrate Court.

[6]    It was argued by Advocate Molati, that Section 90 (i) of the CP & E Act, other offences are tried in the Magistrate Court except treason, murder and sedition. Even if the DPP had to act in terms of Section 144, that would not validate the decision, because the court was not given the reasons behind the decision to directly indict the accused in the High Court. That therefore deprived the court the reasons for the decision, Section 168 required that evidence be placed before the court to establish the Jurisdictional facts.

[7]    Advocate Mohau KC, for the second accused, associated himself in the main with the submissions by Advocate Molati, save and expect that he made an additional point the DPP was obliged to inform the Magistrates Court the reasons why she preferred to indict the accused in the High Court. Section 165 of the CP & E Act, contemplates that evidence be placed before the court for it to establish the basis of finding that it has Jurisdiction.

[8]    Advocate Mafaesa, for the third and fourth accused, submitted that the indictment is not based on facts as to why the accused were indicted. Jurisdictional facts necessary to ground a summary trial are absent and therefore the court has no Jurisdiction. The indictment was not properly before the court.

[9]    Advocate Nathane KC, for the fifth accused, emphasized the fact that there is not an iota of evidence upon a finding that the DPP had properly exercised her mind on the decision to indict. Section 59, of the Subordinate Courts Order endows those court with appropriate Jurisdiction for the present charges: The recommendation from any quarter to the DPP cannot be a basis to indict the accused.

Crown’s Submission in the Court a quo on the plea to Jurisdiction

Advocate Abrahams, reminded the court that the court had decided to

Proceed in the manner that the court ordered. Defence Counsel protested that they did not consent to the procedure adopted.

[10]  It was argued by Crown Counsel, that the notice was filed late regard being hard to Section 119 of the CP & E Act, the only ground upon which Jurisdiction was objected to, that the Subordinate Courts were clothed with the Jurisdiction to try the same offences.

[11]  The onus was on the accused to adduce evidence that show a prima facie, that the court has no Jurisdiction by reason of the invocation of the provisions of Section 162 (2) (e) of the CP & E Act. The plea challenges the powers of the DPP to institute criminal prosecutions in any forum on any charge. There is onus on the accused to show that the DPP acted irrationally. That this must be so, arises from the fact that the plea to lack of Jurisdiction of the High Court to hear and entertain all criminal and civil matters under its territorial Jurisdiction.

[12]  The subject of debate in casu, were discussed and settled in Mokhosi and 15 others v Justice Charles Hunguwe & 5 Others[1]. The DPP is required to protect the public interest, act with objectivity, take proper account the position of the suspect and the victim and pay special attention to all relevant circumstances of the case, irrespective of whether they are to the advantage or disadvantage of the suspect (see Carmichele V Minister of safety and Security and Another3 2002 (1) SA cr79 (cc). The DPP considered all the factors discussed in the Mokhosi Judgement and settled on a decision to prosecute the accused in this forum. The accused seek to forum shop. They do not enjoy that privilege.

[13]  The sui genesis nature of the powers of the DPP are acknowledged worldwide. Courts seldom interfere with the discretionary powers of the office of the DPP. To do so would be to interfere with institutional independence of that office.

[14]  The DPP exercised her mind when she decided on indicting the accused. There is no suggestion that she acted irrationally. In R v City Centre Maseru Travel Agency Pty Ltd[2], the High Court held that even where it is found that the DPP had not acted rationally nothing prevents the summary indictment of an accused person. It is a discretionary power which cements the rule of law as it is Central to the execution of the prosecutorial independence of that institution. The plea of lack of Jurisdiction should fail.

 

[15]  In the United Kingdom, the House of Lords in Corner House Research V The Serious Fraud Office[3] held as follows:

“it is common ground in these proceedings that the Director is a public officer appointed by the Crown but independent of it. He is entrusted by Parliament with discretionary powers to investigate suspected offences which reasonably appear to him to involve serious or complex fraud and to prosecute in such cases. These are powers given to him by parliament as head of an independent professional service who is subject only to the superintendence of the Attorney General. There is an obvious analogy with the position of the Director of Public Prosecutions.”

[16]  There was reference to the rules of statutory interpretation which are not very critical at this stage. The constitutional power of the DPP and under the Criminal Procedure and Evidence Act was referred to. Various statutes creating the office of the DPP in the Region were referred to i.e. The National Prosecuting Authority Act 32 of 1998 of South Africa, National Prosecuting Authority Act 34 of 2010 of Zambia, National Prosecuting Authority Act (chapter 7: 20) of Zimbabwe.

[17]  These pieces of legislation are usually supplemented by the DPP’s policy guidelines as shown by the South African and South Australia instances, so was the submission. In South Australia, the guidelines states that to directly indict a person without prior committal proceedings, will only be justified if only disadvantage to the accused that may thereby ensue will nevertheless not be such as to deny the accused a fair trial see Australian Territorial DPP Annual Report 2017-2018 22. In Maschinenfabrik v South India Shipping Corporation Ltd[4]In Australian Jurisdictions, as in this Jurisdiction, the DPPs have the power to directly indict an accused person to stand trial regardless of whether a committal proceeding was held. A direct indictment can even be done in instances where a Magistrate has found that there is insufficient evidence to commit the accused for trial and had discharged the matter. This approach is not uncommon in several Jurisdictions. It underlines the policy considerations that are exercised by the DPP”.

Lord Diplock, described the court’s inherent Jurisdiction as a general power to control its own procedure so as to prevent being use to achieve injustice. It applies to almost limitless circumstances. In that case four general categories for its use were identified, namely to:

  1. Ensure convenience and fairness in legal proceedings;
  2. Prevent steps being taken that would render judicial proceedings ineffective;
  3. Prevent abuse of process, and
  4. Act in aid of superior courts and in aid or control of inferior courts and tribunals.

[18]  In Ex Parte Millsite Investments Co (Pty) Ltd[5] the Court said the following about inherent Jurisdiction:

“…..apart from powers specifically conferred by statutory enactments, and subject to any deprivation of power by the same source, a Supreme Court can entertain a claim or give any order which at common law it would be entitled to so entertain or give. It is to that reservoir of power that reference is made where in various Judgments Courts have spoken of the inherent power of the Supreme Court. The inherent power is not merely derived from the need to make the court order effective, and to control its own procedure, but to hold the scales of Justice where no law provides for such a given situation.

[19]  There was narration of the power of the High Court of Lesotho, Constitutional Court, Supreme Court of Appeal and the High Court of South Africa, the High Court of Swaziland, the High Court of Namibia and the High Court of Botswana in Sections 119 (1), 173, 151, 80, and 95(1) of the respective constitutions. These constitutions repose inherent Jurisdiction in the High Court.

[20]  Pollack, describes inherent power as follows:

“In short, therefore the position is that unlike, say the Magistrates’ court or industrial court, the power of the Supreme Court is not spelled out in a Legislative framework and limited by its creating statute: it inherently has all such power as entitles it to entertain to hear all causes arising within the area over which it exercises Jurisdiction”.[6]

Consideration of the matter by the Court a quo

[21]  The learned Judge started by rationalizing why he adopted the procedure. He said while the defence may not have expressly agreed or consented to the procedure that he ordered; they certainly did not protest the same at the time the order was made. In fact, the event leading to the order confirm that defence Counsel, at the very minimum acquiesced in the procedure. Had any of them suggested otherwise, there would have been no reason, why he would have made the order. In the same way, he had agreed to the procedure suggested by Counsel that their Clients tender only the special plea rather plead to the indictment as he suggested. In any event Counsel would have filed a substantive notice of motion soon after he pointed out that the notice filed by the first accused lacked the required form. Instead, a terse notice of objection to Jurisdiction was filed by Counsel on 6th May 2021, notwithstanding the fact that section 160 of the CP & E Act, speaks to notice to be given to the Crown where a plea of Jurisdiction is to be taken. The learned Judge went on, that one would have thought that were Counsel minded to challenge the rationality of the decision of the DPP, they would have taken this to require notice of motion proceedings rather than a terse statement notifying the intention to take a special plea. He then went on to define the issues.

[22]  The learned Judge held that there were only two issues that fell to be determined:

  1. Was there a statute or rule limiting the High Court from exercising jurisdiction?
  2. Was there any statute or rule of law granting exclusive jurisdiction to the Subordinate Courts over the crimes charged.

He was of the view that the exercise of prosecutorial power is not untrammeled. The DPP’s powers were reviewable in appropriate circumstances. The learned Judge was of the opinion that there was non-curial intervention when the DPP exercises his/her discretion in furtherance of policy objectives driven by public interest and other lawful purposes such as promotion of the independence of the Judiciary, the confidence of the public in the administration of justice, unless where the exercise of discretion collides with the judicial function.

[23]  There was reference to section 4 of the C P & E Act, which prescribes the jurisdiction of the Subordinate Courts. After examining the Section, the learned Judge said, there was no provision relating to an attempt of the crimes for which the High Court cannot try, nor was the High Court excluded from trying an attempted murder. There can be no attempted treason or attempted sedition, but conspiracy to commit these two offences, so reasoned the Court below. The Court in Mda v DDP Supra, was dealing with an application for review of the exercise of the DPP’s discretion over which Court to have the appellants tried de novo. They had been discharged at the close of the Crown’s case during a trial for obstruction of the course of justice in the Magistrate’s Court. The DPP appealed to the High Court, which upheld the appeal and directed that the appellants be tried de novo before a different Court rather than the same Magistrate who made credibility findings.

[24]  Unlike the matter before him, that matter had been initiated by notice of motion. The Court was therefore not seized with the interpretation of Section 168 of the CP& E Act, the issue in Mda v DPP supra, was not whether the High Court had or had no jurisdiction to try the applicants, but whether, in light of the fact that the matter had been initially tried before the Magistrate Court, the High Court ought to decline to exercise its jurisdiction as there was no proper justification for the exercise of its jurisdiction. It held that it could not properly exercise its jurisdiction.

[25]  Section 4 of CP& E Act, clearly spells out the jurisdictional limits, which guide the DPP when considering the forum in which to prosecute an alleged offender. The DPP must have regard to the nature of the offence (cause of action or subject matter jurisdiction) they are within which the offence is alleged, to have been committed (territorial jurisdiction), the maximum punishment that the offence attracts (punishment jurisdiction). They are matters of Public Law.

[26]  The learned Judge quoted Section 59 which prescribes the criminal jurisdiction of Subordinate Courts and Section 6 of the High Court Act 1978 respectively, which are couched in these terms:

“59. The Court shall have jurisdiction over all offences except treason, murder and sedition.

6. No civil cause or action within the jurisdiction of a Subordinate Court (which expression includes a local or central Court) shall be instituted in or removed into the High Court, save :-

    (a) By a Judge of the High Court acting in his own motion, or

(b) with leave of a Judge upon application made to him in chambers, and after notice to the other party.”

[27]  In his view the provisions do not attenuate the powers of the DPP which is in consonance with the DPP’s exercise of discretion. While there is no statutory exclusive jurisdiction in the criminal sphere, there is in a civil sphere, in matters over which only the Subordinate Court has jurisdiction.

[28]  He rejected the Counsel for the accused’s argument, that… the Judge had chosen a procedure that excluded the presentation of evidence, the Court had deprived itself an opportunity or basis upon which it can find that it had jurisdiction, as no affidavits were filed on behalf of the Crown. Equally rejected was the notion that the requirement for evidence was peremptory.

[29]  The Court took into account the fact that by Section 119 of the CP& E Act, as soon as the indictment in the matter was lodged with the Registrar of the High Court, the case by law ought to be deemed to be pending in the High Court. In exercise of the inherent powers of the High Court, he decided to entertain a plea to lack of jurisdiction without the need for evidence on the day he gave direction regarding the filing of Heads. The Judge was of the view that Mokhosi High Court judgement became part of the records held by the High Court and therefore public knowledge as far back as 2019.

[30]  Section 160, of the CP& E Act, requires notice to be given where an accused intends to plead to jurisdiction of the Court could have been utilized by the accused as soon as a decision to take the special plea was made. He therefore concluded that there was no sound basis to decline jurisdiction. As such, the plea to lack of jurisdiction by the High Court failed.

[31]  Dissatisfied by the Ruling, the appellant (Pitso Ramoepane) who was second applicant in the Court a quo, appealed to this Court. There were four grounds of appeal filed on his behalf:

  1. Whether the appellant bore the onus of proving that the Court below lacked jurisdiction to try him in the circumstances, or whether the onus lay on the DPP to prove that she had lawfully exercised the discretion conferred on her by Section 144 of the Criminal Procedure and Evidence Act (C P & E).
  2. Whether on a proper interpretation, Section 168 of the C P & E did not oblige the Court below to refer the issue of lack of jurisdiction to evidence?
  3. Whether the appellant was precluded by the provisions of Section 160, of the C P & E from raising the plea of lack of jurisdiction at the time and manner he did.
  4. Whether in the circumstances the appellant could be said to be forum shopping.

Appellant’s argument in this appeal

[32]  Advocate Mohau KC, submitted on 5th May 2021 the accused along with his co-accused filed a notice in terms of Section 160(1), of the C P & E read with Section 162(2)(e) signaling their intention to object jurisdiction of the High Court to try charges listed in the indictment. The Court directed that a notice bearing proper addresses be filed in the place of that signed by the accused persons. This was duly done on the 6th May 2021.

[33]  The basis for objection to jurisdiction was that the Subordinate Court is fully endowed with jurisdiction in terms of Section 59, of the Subordinate Courts Act, 1988. The DPP could not circumvent the implications of the said provision by indicting accused on summary trial before the High Court through Section 144, of the C P & E, only applies to charges which are triable by the High Court following the holding of a preparatory examination alternatively.

[34]  Assuming without conceding that Section 144, is applicable to any criminal trial including those of offences that are triable in the Subordinates, Section 144, can only be invoked in situations where the directive by DPP is founded on her opinion there is a danger of interference with or intimidation of witnesses or for the reason that it is in public interest to do so. In this matter there was no such evidence as the Court shut the door to that evidence being presented to it as mandated by Section 168 of the C P & E. There is no jurisdictional basis for concluding that the matter was properly before the High Court.

[35]  The appellant contended in the Court below that the offences with which he is charged are admittedly within the jurisdictions of the Magistrates Court and there is no basis, on record, on which the Director of Public Prosecutions relied for deciding to summarily indict the appellant before the High Court, failure to provide reasons rendered the decision unjustified. It was argued that the provisions of Section 168 C P & E were mandatory.

[36]  Advocate Mohau KC, narrated the provisions of Section 59 Subordinate Court Order No.6 of 1988, Section 144, 145, 168 and 169 of the Criminal Procedure and Evidence Act, 1981. Thereafter he submitted that it was clear from the face of the provisions of Section 59, of the Subordinate Court Order, that the legislature intended for all cases except treason, murder and sedition to be tried by the Subordinate Courts. Such cases can only be brought to the High Court by way of appeal, review or for sentence following conviction, punishment is within the jurisdiction of the High Court.

[37]  In terms of Section 168, of the C P & E Act, the only discretion the Court has in such a situation, relates to the type of evidence it may make reference to only, for example, oral, written or documentary evidence, and not do away altogether with the reviewing of such evidence as happened in the instant case. It was valiantly argued that despite the High Court original jurisdiction, it can only entertain cases falling within the jurisdiction of the Subordinate Courts, through the medium and/or avenue provided for under the provisions of Section 6 of the High Court Act, 1978. This was and is consistent with the principle of adjudicative subsidiarity.

[38]  Section 92(1), as read with Section 144, of the Criminal Procedure and Evidence Act No. 9 of 1981, were heavily relied in canvassing another important facet of the appellant’s case. Arising from the two Sections, Advocate Mohau KC, submitted that, before Section 144 powers can be invoked by the learned DPP, the jurisdictional facts envisaged in subsection (a) and (b) must first be proven to exist, if there has to be compliance with Section 168 of the same Act. The DPP must exercise such discretion justifiably and responsibly. The High Court decision in Mda v DPP supra was cited in support.

[39]  It was argued that faced with similar and/or analogous situation Ramodibedi AJ (as he was) later President of this Court, in quashing an improper indictment quoted with approval the dicta in S v Van Rensburg[7] where Fredman J (as he then was) said that;

“it is clear, therefore, that serve in the circumstances which do not apply in this case a proper committal for trial by a Magistrate is a condition precedent to the trial in a Superior Court.”

[40]  We were referred to Section 99 and 199 of the Constitution, which constitute the Office of the DPP and the High Court respectively. Arising from these provisions, the DPP should not act under misguided belief that she can willy-nilly and/or whimsically as her desires dictate, undertake Criminal Proceedings against any person in any Court. The High Court cannot willy-nilly as it were, hear and try any case before it, even minor cases ordinarily triable before inferior Courts.

[41]  The Mda case supra, was referred to where Mtambanengwe J (as he then was) quoted with approval the dictum in Commissioner of Police v Wilson[8], where it was held:

“the authorities are clear that in construing discretionary powers given to Ministers and other high-ranking persons, the Courts take into account that the legislature expects those powers to be exercised responsibly.”

 

[42]  In Kenneth Nkosana Mokate v Vodacom (Pty) Ltd[9]. The Constitutional Court of South Africa Jafta J stated that:

“Since the coming into force of the Constitution in February 1977, every Court that interprets legislation is bound to read a legislative provision through the prism of the Constitution.”

This Court seems to have already been steps ahead. Indeed in the case of Pitso Ramoefane v Director of Public Prosecutions and Another[10] the Court embraces this noble approach, so it was stated.

[43]  The case of Sehlooho Mokapela v The Minister of Home Affairs[11], the Court said:

“the approach of the learned Judge on this point would seem to be in accordance with the approach to constitutional interpretation which ‘avoids’ the austerity of tabulated formalism and give to the Constitution a purposive interpretation which accords it full amplitude of its powers in accordance with the ethos and aspirations of its people.”

[44]  In concluding his submission, Adv. Mohau KC, reiterated that the appellant will pay more for proceedings in the High Court as he is not in gainful employment. A summary trial will short circuit the appellate structure. The equality before the law and fair trial enshrined in clause 12 and 19 of the Constitution will be undermined. Based on the above submission the upholding of the appeal was prayed for.

The Respondent’s Case in this appeal.

[45]  Advocate Lephuthing, in a spirited submission, submitted that the grounds of appeal are properly matters for review, as asserted in pages 8-9 of the record by the learned Judge. He went on, that it, “it is respectfully submitted that a reviewing authority would be concerned with the decision-making process; the legality and the rationality of the decision of the Director of Public Prosecutions to summarily indict the appellant in the High Court”. The record of the proceedings confirms that the grounds of appeal are in substance grounds upon which the appellant could have filed Notice of Motion proceedings and sought the dispatch of the record in relation to the decision to summarily indict him.

[46]  In stressing the primacy of challenging the DPP’s decision by way of Notice of Motion, Advocate Leputhing sympathized with the appellant who deprived himself of an opportunity to file the notice of motion as he did in the Constitutional case of Tseliso Mokhosi and 15 Others v The Director of Public Prosecutions[12], in which he filed a formal application and sought a stay of this very criminal matter CRI/t/0002/2018 pending final determination of the ordinary relief that the High Court (Constitutional Panel) declare the appointment of Mr. Justice Hungwe and all other foreign Judges to be appointed to preside over his cases to be unconstitutional. He did not deal with Section 90(1), of the C P & E Act, 1981. The interesting order in the judgement of the Director of Public Prosecutions v Ramoepane was that CRI/t/0002/2018 must proceed before the Court a quo and any collateral application must be visited with an Order for costs. It was submitted that there was another ‘defensive’ or ‘collateral’ challenge to the validity of the decision of the Director of Public Prosecutions to interdict the appellant pursuant to Section 144(1) of the C P & E Act.

[47]  He stressfully argued that it would not be easy to challenge the exercise of discretion by the DPP as irrational. Lord Diplock’s statement in, Secretary of State for Education and Science v Tameside Metropolitan Borough Council[13], when he said:

“the very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to holding differing opinions as to which has to be preferred.”

[48]  There was an overriding public interest in the matter as the Commander of the Lesotho Defence Force (herein called the LDF) is charged with senior Military personnel for a multiplicity of offences. The balance of convenience for security reasons lay in upholding the decision of the learned DPP. To indict the appellant and his confederates in the High Court. Any event the learned DPP was implementing the recommendations of the SADC Commission of enquiry set up under the Public Enquiries Act, headed by Justice Mphumati. The Prime Minister had asked SADC to intervene and help the stabilization of Lesotho. The SADC had undertaken to facilitate the prosecution of the appellant and his confederates.

[49]  The learned DPP’s decision was anchored on the threat to National Security the appellant and his co-accused posed. They had been refused bail for national security reasons. We were referred to the case of Council of Civil Service Union and Others v Minister for Civil Service[14], in that case Lord Diplock said:

“National security is the responsibility of the executive government… a matter upon which those upon whom the responsibility rests, and not the Courts of justice, must havce the last word. It is par excellence a non-justifiable question. The judicial process is totally inept to deal with the sort of problems which it involves.”

[50]  The Courts of Law should not attribute to themselves superior wisdom entrusted to other branches of government, so it was argued, citing Bato Star Fishing (Pty)Ltd v Minister of Environmental Affairs and Others.[15]

[51]  It was stressed that a proper reading of the judgements of this Court in both Mokhosi and Ramoepane supra, makes it clear that competent procedures and processes were embarked upon to have ‘foreign Judges’ to preside over a specific set of cases pending before the High Court of Lesotho. There was no Magistrate intended to hear any of those mentioned cases and it was unacceptable for the appellant to forum shop through the use of different litigation contrary to the principle in Churwa v Transnet Ltd and Others[16].

[52]  It was aggressively argued that it, was absurd that this Court is being asked to enforce a condition which is invalid relying on, Administrator Cape and Another v Ntshawage and Others[17], where it was held that:

“On the overall conspectus of this matter, it is respectfully submitted that this honourable Court should, in our view be astute not to come to the aid of the appellant by allowing the criminal case to be conducted before the Magistrate Court contrary to its previous Order that it must be handled by the High Court.”

[53]  It was argued that when the DPP examined the SADC Commission Report and the political disturbances of 2014 and the national crisis, which the appellant alleged created, she took a decision pursuant to Section 144 (1) of the Criminal Procedure and Evidence Act 1981 to summarily indict the appellant. The appellant did not object to the DPP’s exercise of her powers contained in Section 144(1). The appellant’s suggestion that the Executive and the DPP, played a key role in the appointment of Judges and consequently the process was tainted. This Court rejected that argument in Mokhosi judgment supra.

[54]  It was unwise for the appellant not to file an affidavit in support of the notice in terms of Section 160 of the Act. As soon as the decision to take the special plea was made, he could not aver the irrationality of the DPP’s decision without triggering procedural rights in terms of Rule 50 of the High Court Rules 1980. That would have imposed an obligation upon the Crown to dispatch or file the record of the decision to indict summarily or proceedings sought to be corrected or set aside together with such reason as she is by law required or desires to give or make with the Registrar of the High Court. This approach was laid down in Helen Suzman Foundation v Judicial Service Commission[18]

[55]  The appellant would have challenged the jurisdiction of the High Court, before making an application to the same Court to have his legal costs sponsored by the state to the tune of M17,000.00 per appearance. By so doing he had consented and/or acquired to jurisdiction of the High Court see Attorney General v The Registrar and 32 Others[19]. The appellant has successfully applied before the High Court for the postponement of his case for three years but now says the Court has no jurisdiction.

[56]  Relying on Ouderkrall Estates (Pty) Ltd v the City of Capetown and Others[20], Advocate Lephuthing, submitted that there exists an evidential presumption of the validity of the indictment as expressed by the maxim of Omnia praesumuntur rite esse acta. Until the act in question is found to be unlawful by a Court, there is no certainty that the indictment is unlawful. There has never been an appropriate legal process of judicial review launched to impugn the decision of the DPP to summarily indict the appellant.

[57]  The appellant having made six frivolous applications which have potentially derailed the hearing of his criminal cases, Advocate Lephuthing asked for costs on an attorney and own client scale.

Consideration of the appeal

[58]  The issues in this appeal are simple.

  1. What is the nature and character of the DPP’s powers as contained in the Constitution and the Criminal Procedure and Evidence Act, 1981? ;
  2. The individual wants to challenge the exercise of these powers, how does he or she procedurally mount that challenge?;
  3. Where an individual challenging a decision does not lay facts before the Court, what should be the approach of the Court?

The Law.

[59]  The Constitution provision constituting the Office of the Director of Public Prosecutions is couched in these terms:

  1. There shall be a Director of Public Prosecutions whose office shall be an office in the Public Service.
  2. The Director of Public Prosecutions shall have power in any case in which he considers it desirable to do so-
    1. To institute and undertake criminal proceedings against any person before any Court (other than a Court-Martial) in respect of any offence alleged to have been committed by that person,
    2. To take over and continue any such criminal proceedings that have been instituted or undertaken by any other person or authority, and
    3. To discontinue at any stage before judgement is delivered in any such criminal proceedings instituted or undertaken by himself or any other person or authority.
  3. The powers of the Director of Public Prosecutions under subsection (2) may be exercised by him in person or by officers Subordinate to him acting in accordance with his general or special instructions.
  4. The powers conferred on the Director of Public Prosecutions by subsections 2(b) and (c) shall be vested in him to the exclusion of any other person or authority except the Attorney General.

In addition, Section 144(1) of the C P & E Act goes in to provide: 

“144. (1) whenever-

  1. In the opinion of the Director of Public Prosecutions any danger or interference with or intimidation of witnesses exists; or
  2. The Director of Public Prosecutions considers it to in the interest of the safety of State or in the public interest, he may direct that any person accused of having committed any offence be tried summarily in the High Court without a preparatory examination having been instituted against him.”

[60]  The two pieces of legislation are broad in terms of conferring power on the DPP, in the conduct of criminal prosecutions. They confer on the DPP wide discretionary powers. However, that exercise of discretion is not untrammeled. It must be within the confines of the law and in consonance with international prosecutorial standards. An example is when the DPP is in possession of evidence favourable or unfavourable to the accused, such evidence should be brought forward. Failure to bring such evidence, the evidence will be deemed as favourable to the accused see Kunda v The People[21], a decision of the Zambian Court of Appeal. The High Court has power to interfere with the DPP’s exercise of discretion so has this Court power to interfere with the lower Court’s exercise of discretion. See Sian Ferguson and Two Others v Rhodes University[22].

[61]  In challenging the exercise of discretion by the DPP, the party challenging pursuant to Section 160, must file a notice of motion accompanied by an affidavit. The case that has been often cited by the appellant and his confederates in this Court, and the lower Court Mda v DPP supra, the challenge was by motion proceedings. I agree with Advocate Lephuthing’s submission in para 20 that:

As soon as a decision to take special plea was made, appellant ought to have filed an affidavit in support of the motion and imposed an obligation upon the Crown to dispatch or file the record of the decision to indict summarily.

[62]  Such submission finds support in the South African Constitutional Court decision in Helen Suzman Foundation v Judicial Service Commission para 15 supra, where it was held:

“the filing of the full record furthers applicants’ rights to access to Court by ensuring both that the Court has the relevant information before it and that there is equality of arms between the person challenging a decision and the decision-maker. Equality of arms require the parties to the review proceedings must each have a reasonable opportunity of presenting their case under conditions that do not place them at a substantial disadvantage vis-as–vis their opponents.”

[63]  The authorities in this Country and the region, are legion, the challenge to the DPP’s exercise has to be commenced by the notice of motion, if there has to be equality of arms. The appellant would have filed the notice of motion, supported by the founding affidavit, why he was challenging the jurisdiction of the High Court in terms of Section 59 Subordinate Court Order and Section 144(1) of the Criminal Procedure and Evidence Act 1981, the DPP would have filed an answer and he would have filed a reply. The High Court would have had relevant information before it and the two parties would have been on equal footing.

[64]  The comments of our brethren in the Constitutional Court of South Africa, when dealing with the applications to permanently stay prosecutions because of delay by the DPP. The Court has consistently held that the important factor to consider is:

The nature of the crime involved is a relevant factor. This is particularly so in the present case, murder, the seriousness of the case. The sanctity of life is guaranteed under the Constitution as the most fundamental right. The right of an accused requires fairness not only to him, but fairness to the public as represented by the State as well. It must instill public confidence in the criminal justice system, including those close to the accused, as well as those distressed by the horror of the crime. It is insignificant fact that the right to institute prosecution in respect of murder does not prescribe clearly, in a case involving as such as the present one, the societal demand to bring the accused to trial is that much greater and the Court should be that unwilling to grant a permanent stay see Rodrigues v National Director of Public Prosecutions and Others 2021 (3) ALL SA 775 (SCA), Zanner v Director of Public Prosecutions Johannesburg (2006) ZA SCA 56.

[65]  In a ‘more telling’ decision, in S v Basson[23], the Court said:

“In our constitutional State the criminal laws play an important role in protecting Constitutional rights and values. So, for example the prosecution of murder is an essential means of protecting the right to life and the prosecution of assault and rape a means of protecting the right to bodily integrity. The State must protect these rights. The Constitutional obligation upon the State to prosecute those offences which threaten or infringe the rights of citizens is of central importance in our constitutional framework.”

The DPP enjoys the constitutional and statutory entitlement to superintend criminal prosecutions albeit rationally.

[66]  The appellant having not complied with the review procedure as Section 59 of the Subordinate Court Order was not specifically pleaded, the matter fell to be decided on a point of law. It is the duty of a party to present their case to place relevant information before the Court, for the Court to call for evidence, as suggested, the Court will be entering the arena, it then ceases to be an umpire and may be vilified, that the Court has taken sides. The suggestion therefore flies in the teeth of logic.

[67]  In Nyampala Safari (Z) Limited and Others v Zambia Wildlife Authority and Others[24], the Supreme Court of Zambia restated the following basic principles underlying the process of judicial review:

  1. The remedy of judicial review is concerned, not with the merits of the decision, but with the decision making process itself;
  2. The purpose of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is not part of that purpose to substitute the opinion of the judiciary or the individual Judges for that of the authority constituted by law to decide the matter in question;
  3. The decision of an ‘inferior’ Court or Public authority may be quashed (by an Order of certiorari) where that Court or authority acted:
    1. Without jurisdiction;
    2. Exceeded its jurisdiction;
    3. Failed to comply with rules of natural justice where those rules are applicable;
    4. Where there is an ‘error of law’ on the face of the record, or
    5. The decision in unreasonable in the ‘wednesbury sense’. A public authority acts unreasonably when a decision it makes is ‘so absurd that no sensible person could have ever dreamt that it lay within the powers of the authority.

‘Wenesbury unreasonableness’ was first elucidated in the case of Associated Provincial Picture Houses v Wednesbury Corporation[25], and was consequently equated with irrationality by the House of Lords in Council of Civil Service Unions v Minster of Civil Service supra.

Conclusion

[68]  The appellant was charged with the murder of the former Army Commander with 5 Others, he is a Major in LDF, the matter raised serious security concerns in the Kingdom. The DPP has indicted him to be tried in the High Court, a Court with superior human and material resources than the Subordinate Court. The High Court under Article 119 of our Constitution have broad powers in the criminal sphere. The High Court in terms of Section 6 of the High Court Act 1978, has discretion whether to assume jurisdiction mero motu, even in matters falling within the Magistrates Court jurisdiction. If the legislative intent was to limit the criminal jurisdiction of the High Court, the legislature would not have enacted Section 6, which gives the High Court jurisdiction mero motu in cases where the Magistrate Court having jurisdiction. The appellant submitted to the jurisdiction of the High Court, applied that he be granted a pro deo facility, he now challenges that very Court’s jurisdiction in an abrupt fashion. Given all these circumstances can it be said, the DPP’s decision is irrational by any standard. I think not. She acted on legitimate concerns. Every nation said the Supreme Court of Zambia in Joyce Banda v Attorney General[26], has a right to protect itself from those that are bent on its destruction. For these reasons there is no merit in this appeal.

Costs.

[69]  I have anxiously considered whether given the frivolity of the appeal to award the Crown costs, but the conundrum I find myself in, is that this very appellant in the very Court whose jurisdiction he was and has been challenging applied for pro deo facility or rather pleaded impecuniosity, so the Costs Order, is unlikely to be enforced, as you cannot get blood out of a stone. I therefore make no order as to costs save and except to censure him for being a frivolous and vexatious litigant. He should direct his resources in defending the alleged charges, than expending the little resources on senseless litigation.

Order

[70]  Appeal dismissed, there shall be no order as to costs.

 

 

            

    1. . MUSONDA

ACTING JUSTICE OF APPEAL

 

 

I agree:

 

                                    

  •  

K. E. MOSITO

PRESIDENT OF THE COURT OF APPEAL

 

I agree:

  

  •  

N. MTSHIYA

ACTING JUSTICE OF APPEAL

 

For Appellants/ Applicants:  Advocate K.K. Mohau.

For Respondents:  Advocate Mpaka. C.J. Lephuthing.    

 

[1] 2Const Case No /02/2019 [2019] LS HC 9

[2] CRI/T/53/06 2007 LSHC 94

[3] 2008 UKHC 60

[4] 1981 AC 909

[5] 1965 (2) SA 582 (T) at 585 G-H.

[6] Pistorious Pollack on Jurisdiction, 2nd ed (1993)

[7] 1965(2)SA 912 at 913

[8] 1981(4)SA 726 2ad at 742 E.

[9] No. CCT/25/2015 Para 87 at P34.

[10] C of A (CIV) NO. 33/2018.

[11] 1995-1996 UR-CB-224.

[12] C of A (C)IV) No. 49/2020.

[13] 1 of 1994

[14] 1984 3 UR 1174 at 1198 B-C

[15] 2004 (4) SA 490 (CC) at 514f-525A

[16] 2008 (4) SA 367 (CC)

[17] 1990/Sa 705 (A) at 716 A.

[18] 2018 (7) BCLR 763 (CC) at Para 18.

[19] CIV/APN/305/2019.

[20] 2004 (6) SA 222 SCA at para 31 at 243H-244A.

[21] (1972) ZR. 142

[22] [2017] 2ACC 39.

[23] 2005 (1) SA 171 para 31-33.

[24]  (2004) ZMSC 49.

[25] 1948 1KB 223.

[26] 1978 ZR 233.

Similar Judgments

No Similar Judgment found.