COURT OF APPEAL OF LESOTHO

MEDIA RELEASE

The Court of Appeal of Lesotho has completed its first session for 2003. The Court generally is convened for two sessions each year. In April and October. It is Lesotho’s Highest court, and its jurisdiction includes all constitutional , criminal and other civil matters.

  The court is currently composed of one serving member of the Lesotho High Court, the current Acting Chief Justice (Mr. Justice Michael Ramodibedi), and the six other judges who – while permanent members of the court- serve as part-time members. Several have previously served on South Africa’s Supreme Court of appeal or are serving members of the Botswana Court of Appeal, and until recently of the Swaziland Court of Appeal.

  The full Court comprises: Mr. Justice J.H. Steyn (President) and Justices of Appeal M. Ramodibedi, F.H. grosskopf, C. Plewman, J.Smalberger, L.Melunsky and J.Gauntlet.

  Mr. Justice Smalberger – who until his retirement late last year was at times the Acting Deputy Chief Justice of South Africa –joined the Court this term.

Among the Appeals heard this session were: 

1. The appeal by the former Chief Executive of the Lesotho Highlands Development Scheme, Mr. Masupha Sole, against his conviction on 11 counts of bribery and two counts of fraud, and his sentence of an effective 18 years imprisonment. This followed a marathon trial in the High Court. the court of Appeal today dismissed the appeal against conviction on all counts. In relation to sentence, however, the appeal partly succeeded as a result of what the Court considered to be a misdirection in one respect. In the result, an effective period of 15 years' imprisonment was imposed.

2.In so far as civil  litigation is concerned, we have inter alia dealt with the following :

     We had to determine certain constitutional issues

That were:

2.1.1 The position of the leader of the opposition. His tenure of office and his entitlements we considered and adjudicated upon. We held that the Constitution in unambiguous terms did not entitle the leader of the opposition to remain in office and to receive his remuneration and other benefits between the proroguing of one parliament and the convening of another.

2.1.2 We had to consider whether the Constitution conferred exclusive jurisdiction on the High court to determine elections petitions. We held this to have been the clear intension of the founding fathers of the Constitution. The expeditious resolution of electoral disputes is clearly in the public interest.

2.1.3 A challenge by Mr. Sole to the appointment of the trial judge in his criminal trial was heard by a full court of five judges. The appeal involved constitutional issues. These centered on the proposition that a former Chief Justice of Lesotho, Mr. Justice B.P. Cillinan ( who had also served as a judge in Fiji and Zambia) be disqualified from being appointed to hear Mr. Sole's matter. The appeal was also dismissed with costs.

3.The Full bench of the High Court also rejected the contention advanced in the Sole appeal that Judge Ramodibedi, who is a distinguished member of the Court of Appeal was not qualified to sit as a judge of the High Court. This Court ruled as follows in this regard:

"(27) It is first necessary to deal with the contention that Ramodibedi J had vacated  his office as a High Court judge by virtue of the provisions of section12 (1) of the Constitution. This in my view is without any merit. The provision is, in fact, to the effect that the "Chief Justice or other Judge of the High Court shall vacate that office when he attains the prescribed age."   That is the only provision stating an ex lege basis on which termination of appointment occurs. The balance of the provisions deal with mechanisms for removal from office (subsections (3) to (7)), and the capacity of Parliament to alter the retirement age (subsection (8)).

(28) As regards the alternative contention, relating to the perception of the public, this overlooks section 123(2)(c) which provides that the judges of the  Court of Appeal include "the Chief Justice and the puisne judges of the High Court ex officio". there is no room for "perception" raised by the appellant, if the Constitution- the supreme law of Lesotho itself provides in the clearest terms for that very state of affairs. That it does so is doubtless for the reasons suggested by Guni J in her Judgment: the fact that Lesotho is a poor country, drawing on a small pool of skilled lawyers. The balance struck in the Constitution is between a situation in terms of which it is possible to convene a Court of Appeal bench drawing ( in part or on whole, as exigencies require) on full-time members of the High Court, but also( pursuant to section 124 of the Constitution) to appoint suitably qualified other persons to serve as Judges of Appeal on a non-full-time basis.

 

I would add that since Judge Ramodibeli joined this Court some years ago, he has made valuable contributions across the judicial spectrum to the decisions of this court. He has also enriched our understanding of the laws and customs of the country we serve.

3.Regrettably the court once again had to make a punitive order for the costs to be paid by practitioners who fail to give their clients the service of wise counsel they deserve. Unfortunately there is a tendency on the part of a few practitioners to shoot with a procedural shotgun at every legal target. The real; issues between the parties seldom emerge for decision and much effort and time are wasted in the pursuit of procedural goals. The only outcome is usually an "own goal" scored at the cost of their client. We would welcome the Law Society taking the initiative in order to ensure the maintenance of the highest standards of excellence and the vesting of a client service ethos in the profession. A code of best practice for those lawyers who have the privilege of practicing in the Kingdom would enhance their standing both in the society and in the courts.

J.H.Steyn

PRESIDENT OF THE COURT OF APPEAL

The next session of the Court of Appeal will be held from the 1st to the 15th October 2003. There will be a short session of the court in early August 2003 to hear the appeal in the matter of Acres Ltd Vs Rex.  

  

15th April 2003