IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CONSTITUTIONAL CASE NO. 10/2010
In the matter between:
MINISTER OF JUSTICE AND HUMAN RIGHTS 1ST APPLICANT
MINISTER OF LAW, CONSTITUTIONAL AND
PARLIAMENTARY AFFAIRS 2ND APPLICANT
DIRECTOR OF PUBLIC PROSECUTIONS 3RD APPLICANT
THE ATTORNEY GENERAL 4TH APPLICANT
CLERK OF THE MAGISTRATE`S COURT,
MASERU 5TH APPLICANT
BOFIHLA LETUKA RESPONDENT
CORAM: HON. JUSTICE MONAPATHI ACJ
HON. JUSTICE N. MAJARA J
HON. JUSTICE K.E. MOSITO AJ
Date of Hearing: 31 MAY, 2013
Date of Judgment: 14 JUNE, 2013
Application for recusal on the basis of perception of unfairness and possible bias – Judge having been a member of advocate’s Chambers that had represented Respondent at one stage of criminal proceedings giving rise to application before Court, but having not been personally involved in the criminal case.
Application for recusal on the basis of perception of bias – judge having expressed a legal opinion in another case in which he was appearing as Counsel.
Legal principles on recusal discussed and applied – Application refused.
- R v Manyeli LAC(2007- 2008) 377,
- (BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers’ Union and Another 1992 (3) SA 673 (A)
- Franklin and Others v Minister of Town and Country Planning  AC (HL)
- S v Roberts 1999 (4) SA 915 (SCA) .
- Sole v Cullinan and Others LAC (2000 – 2004) 572
- President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC) .
- S v Basson 2007 (3) SA 582 (CC).
- Bernet v ABSA Ltd  ZACC 28.
- South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Limited Seafoods Division Fish Processing 2000 (8) BCLR 886.
- R v S (RD) (1997) 118 CCC (3d) 353 (SCC).
- Ndimeni v NEEG Bank Limited (Bank of Transkei) 2011 (1) SA 560 (SCA).
- Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd.  2 All SA 366 (A).
- Sager v Smith 2001 (3) SA 1004 (SCA).
- Take and Save Trading CC & others v Standard Bank of SA Ltd 2004 (4) SA 1 (SCA).
- Peart v Peel Police 2006 CanLII 37566 (Ont CA) .
- Lesiczka v Sahota 2007 BCSC 479 (CanLII.
- Christian t/a Hope Financial Services v Chairman, Financial Services Board (1) 2009 1 NLR 22 (HCNm)).
- R. v. S. (R.D.),  3 S.C.R. 484
- Valente v. The Queen,  2 S.C.R. 673
- The facts that led to the institution of this application may be summarised as hereinbelow. On 17 August 2012, the Applicant launched an application in Constitutional Case No. 10/2010 for an order in the following terms:
- Directing 5th Respondent to file the record of the Criminal proceedings in CR 1066/98 in this Honourable Court and to furnish Applicant with a copy of the said proceedings.
Quashing the conviction and sentence of the Applicant on account of the violation of the Applicant`s right to fair trial in terms of section 12 of the constitution.
- That this Honourable Court make directions as to how this matter should is to deal with (sic).
- Granting Applicant further and/or alternative relief.
- Pleadings were ultimately closed in the case until the matter found its way before us sitting as a panel of three judges by reason of the fact that the matter is a constitutional case. When the matter first appeared before us on 11 December 2012, the learned Counsel for the parties met us in chambers and the learned Counsel for the present Applicants brought it to our attention that his instructions were to apply for my recusal from the case.
- The basis of such instructions was that as a legal practitioner, I had at some stage or another, represented the Applicant in the criminal proceedings that led to the present challenge before Court. Mindful of my duty to state my position on the subject, I indicated that I did not recall ever representing the Applicant in this sort of case. I did not even know the Applicant. Counsel was however, true to his instructions, insistent that I should recuse myself from the case. In the circumstances, it appeared that the best way to resolve the matter was to go into Court in order to hear Counsel in respect of the aforesaid issue.
- This Court, aware of the insistence of Counsel from the bar to pursue his instructions regarding my recusal, directed that Counsel make arrangements for a substantive application to be filed so that the matter is resolved as a substantive recusal application, hence the present application.
- On 28 January 2013, the present Applicants filed an application for an order in the following terms:
- THAT Mosito AJ recuse himself from participation in the matter of BOFIHLA LETUKA v HONOURABLE MINISTER OF JUSTICE AND HUMAN RIGHTS AND FOUR OTHERS (Constitutional Case No. 10/2010);
- ALTERNATIVELY, that Mosito AJ be and is hereby directed to recuse himself from participation in the aforementioned matter;
- Further and/or alternative relief;
- The application is supported by the founding affidavit of the learned Director of Public Prosecutions advocate Leaba Linus Thetsane KC. To the extent relevant to present application, Mr. Thetsane deposes in his affidavit that ‘it is common knowledge amongst the legal fraternity in Lesotho that Mosito AJ represented many solders as Counsel in various different criminal proceedings pursuant to the unrest in 1998, a fact that Mosito AJ will himself not dispute.’
- He further avers that ‘to the best of my knowledge, Mosito AJ represented more solders that any other single legal practitioner in Maseru’, and that ‘in the matter in hand, and during the earlier criminal prosecution, the Respondent was represented by K.E.M. Chambers of which, and at the time and ever since, Mosito AJ was, and remains, a member.’
- The learned Director of Public Prosecutions further avers that ‘it was, and remains, a commonly held belief that Mosito AJ represented many soldiers in the post-1998 period.’ It is also significant to mention that in his founding affidavit, the learned Director of Public Prosecutions avers that ‘it seems, as earlier submitted, that K.E.M. Chambers, of which, as already submitted, Mosito AJ is a member, was indeed on record as the legal representatives of the Respondent in the earlier criminal matter which gave rise to the Respondent’s application to this Honourable Court.’
- It is on the foregoing factual basis as averred in the affidavit of Mr. Thetsane that the present application for recusal is founded. As was put by the learned DPP, this: ‘in my respectful view, is more than sufficient to sustain the perception of unfairness and possible bias.’
- In reaction to the above averments, the Respondent, while accepting that K.E.M Chambers represented him in the case and that ‘Dr Mosito AJ remains a member thereof,’ points out that K.E.M. Chambers have a lot of staff who could competently represent him.
- He avers that he was represented by Mr Ts’upane Maieane throughout his case. He further avers that ‘at no point did Mr Mosito AJ represent me in this case, nor did he form part of the defence team in my particular case’. He goes further to aver that after his conviction he applied for bail pending appeal and review of the Magistrate’s decision refusing to grant him bail. He avers that he ended up instructing another attorney Mr Nteso for a mandamus application. He further avers that he also instructed a third Counsel, Mr Mahase Chambers, but all Counsel could not be of any assistance to him in the absence of the Record.
- The Respondent concludes that his mandate to K.EM. Chambers tacitly terminated when he appointed Mr Nteso sometime in March 2005, some eight (8) years ago. He also stresses the point that Mr Mosito AJ never appeared on his behalf in any criminal proceedings. He consequently disputes that the perception of unfairness and bias has any foundation.
- I must mention that there is another leg on which the alleged perception of unfairness of bias is premised. This is reflected in Mr. Thetsane’s affidavit thus: ‘Mosito AJ and my office, and those representing me, are presently, and have been so engaged over a significant period of time, in a discussion on where the duty to prepare an appeal record in a Subordinate Court matter, lies.’
- Mr Thetsane further avers that ‘Mosito AJ and I hold opposing views on this subject, and as this is one of the very issues that this Honourable Court will be obliged to decide, is, my view, a further compelling reason why it would be unwise for Mosito AJ to participate in this matter.’ Mr. Thetsane then annexes to his affidavit the correspondence that he had between himself and Mr. G J Leppan in which the two were discussing the issue of the preparation of a record of appeal in another matter other than the case before Court.
- In Annexure LLT 3(a), the following communication appears :
‘Dear Advocate Thetsane
Re: REX v MOLISE MZINI
I refer to the abovementioned matter and to my letter dated 2 March 2012 in which Advocate Mosito undertook to discuss this matter with you personally.
The purpose of this letter is to enquire whether Advocate Mosito has so discussed this matter with you, failing which, whether we should take steps to have the Appellant’s bail withdrawn for his failure to prosecute the appeal.
I explained to Advocate Mosito that as far as the Office of the Director of Public Prosecutions was concerned, and although the Clerk of the Court was responsible for the preparation of the Appeal Record, the Appellant himself should take positive steps to prosecute his appeal.
Advocate Mosito was unsure as to exactly what steps the Appellant should take because, as far as he was concerned, the record was already in possession of the Clerk of the Court.
Possibly this can be resolved when he contacts you.
With kind regards.
- In reaction to this second leg, the Respondent denies that Mosito AJ has anything to do with the case although it may relate to the same subject. He continues that ‘[t]he Honourable Judge in his capacity as legal practitioner has a right to hold whatever view relating to issues that come before him. Deponent knows very well that the question of who has to prepare the record is not an issue in my case. That is why constitutional case No. 1 of 2009 was withdrawn, because the deponent had taken a point that the clerk of Court was not joint contrary to Rule 62’. He therefore prays that the application be dismissed with costs inasmuch as ‘Dr Justice Mosito never advised me no acquitted [sic] knowledge of this my case in his capacity as my Counsel of record’.
- It is apposite at this stage, in advance of considering the above versions of the parties and applying the law to the facts, to briefly consider the legal principles applicable to an application for recusal as pleaded in the present application.
THE LEGAL PRINCIPLES ON JUDICIAL RECUSAL
- The law relating to judicial recusal may appear to many to be an esoteric topic, with not much significance for the administration of justice. Contrary to such a superficial view, this area of law goes to the very heart of the functioning of a robust and liberal democracy operating under the rule of law. Indeed, an essential characteristic of the rule of law is the existence of an impartial and independent judiciary.
- Impartiality covers “the wisdom required of a judge to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave. True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.”(See The Nature of the Judicial Process (1921) at p. 167 cited by L’Heureux-Dubé and McLachlin JJ above at ).
- As pointed out by the Court of Appeal of Lesotho, in R v Manyeli LAC(2007- 2008) 377,
 The generally accepted test for recusal is the existence of a reasonable suspicion or apprehension of bias (BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers’ Union and Another 1992 (3) SA 673 (A) at 693 I-J). Bias in the sense of judicial bias has been said to mean:
“a departure from the standard of even-handed justice which the law requires from those who occupy judicial office”
(see Franklin and Others v Minister of Town and Country Planning  AC (HL) at 103, quoted with approval by Howie JA in S v Roberts 1999 (4) SA 915 (SCA) at 922 I-J).
The requirements of the test were elaborated upon as follows in S v Roberts (supra) at paras  and  (pp924 E – 925D).
“(1) There must be a suspicion that the judicial officer might, not would, be biased.
(2) The suspicion must be that of a reasonable person in the position of the accused or litigant.
(3) The suspicion must be based on reasonable grounds.
(4) The suspicion is one which the reasonable person referred to would, not might, have.”
In the above regard, as warned in the BTR Industries case (supra) at 695 D-E:
“It is important……. to remember that the notion of the reasonable man cannot vary according to the individual idiosyncrasies or the superstition or the intelligence of particular litigants.”
In Sole v Cullinan and Others LAC (2000 – 2004) 572 at 586 this Court quoted with approval the following passage from President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC) at 177 B-D:
“The question is whether a reasonable, objective and informed person would, on the correct facts, reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case that is a mind open to persuasion by the evidence and the submissions of Counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves.”
Regard must also he had to the fact that there exists a presumption against partiality of a judicial officer (S v Basson 2007 (3) SA 582 (CC) at 606 E-F).
- The test for judicial recusal is an objective one, namely, whether in the eyes of a reasonable man in the circumstances of a litigant there is a reasonable perception of bias.
- An apprehension of bias may arise either from the association or interest that the judicial officer has in one of the litigants before the Court or from the interest that the judicial officer has in the outcome of the case. Or it may arise from the conduct or utterances by a judicial officer prior to or during proceedings. In all these situations, the judicial officer must ordinarily recuse himself or herself. (See Bernet v ABSA Ltd  ZACC 28).
- In considering an application for judicial recusaI, I find myself to be in respectful agreement with the observations of Cameron AJ in South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Limited Seafoods Division Fish Processing 2000 (8) BCLR 886. In particular, I agree with him that, in formulating the test in the terms quoted above, two considerations are built into the test itself.
- The first is that in considering the application for recusal, the Court as a starting point presumes that judicial officers are impartial in adjudicating disputes. This in-built aspect entails two further consequences. On the one hand, it is the Applicant for recusal who bears the onus of rebutting the presumption of judicial impartiality. On the other, the presumption is not easily dislodged. It requires “cogent” or “convincing” evidence to be rebutted.
- The second in-built aspect of the test is that “absolute neutrality” is something of a chimera in the judicial context. This is because judges are human. They are unavoidably the product of their own life experiences, and the perspective thus derived inevitably and distinctively informs each judge’s performance of his or her judicial duties.
- I am, at the same time, also alive to the fact that, colourless neutrality stands in contrast to judicial impartiality. ( See: R v S (RD) (1997) 118 CCC (3d) 353 (SCC)).I also agree with him that impartiality is that quality of open-minded readiness to persuasion — without unfitting adherence to either party, or to the judge’s own predilections, preconceptions and personal views — that is the keystone of a civilized system of adjudication. Impartiality requires in short “a mind open to persuasion by the evidence and the submissions of Counsel.”
APPLICATION OF THE LAW TO THE FACTS
- Bearing in mind the facts and legal principles outlined above, it is now convenient to deal with the contentions of the parties. In his Heads of Argument, the learned Counsel for the Applicants contends that, in casu, the Applicants cannot but hold reasonable concern about Mosito AJ’s participation, considering that KEM Chambers represented the Respondent in the very same criminal proceedings that gave rise to the Respondent’s complaint to this Court.
- He further argues that the involvement of KEM Chambers, in the aforementioned criminal trial, warrants, swift action to protect the integrity of the Courts of Lesotho. The learned Counsel for the Applicants relied, for this contention, upon the case of Ndimeni v NEEG Bank Limited (Bank of Transkei) 2011 (1) SA 560 (SCA).
- In the Ndimeni’s case the facts upon which the appellant relied for his claim that Zilwa AJ should have recused himself were that: ‘(a) Ms S V Zilwa, the judge’s wife is a shareholder in and director of [the Respondent]; Ms S V Zilwa, the judge’s wife is a shareholder in and director of [the Respondent]; (b) Ms S V Zilwa is a chartered accountant and in that capacity is sub-contracted by KPMG to audit the books of [the Respondent]; (c) Bank of Transkei Insurance Brokers have been closed and all the work formerly done by this division is now done by Sikhona Financial Services. Ms S V Zilwa is the sole director of Sikhona Financial Services; (d) Advocate P H S Zilwa, the judge’s brother is a director of [the Respondent]; e) Mr D Z Nkonki, the judge’s brother-in-law, is an Executive Director of [the Respondent]; (f) In his practice as an attorney, the judge handles commercial bonds of [the Respondent] and is thus reliant on [the Respondent] for a portion of his income.’
- The case of Ndimeni v NEEG Bank Limited (Bank of Transkei)(supra), is distinguishable on two fronts. Firstly, in that case, the instructions for the preparation and execution of the bonds by Zilwa AJ (as conveyancer) emanated from the Respondent, as mortgagee. There was evidence to that effect. In the present case, there is no evidence that Mosito AJ was ever involved in the criminal trial of the Respondent. In fact, the Respondent specifically denies that Mosito AJ was ever involved in the criminal trial or was ever part of his defence team.
- The case is also distinguishable on a second ground, viz: In Ndimeni’s case, the appellant sought to have the judgment set aside and the matter referred back to the Labour Court for the trial to commence de novo before a different judge, on the grounds of an alleged commercial relationship between Zilwa AJ and the Respondent, which engendered a fear that the learned acting judge would not be impartial in the case. It was submitted on behalf of the appellant that in the light of the alleged commercial relationship there had not been a fair trial.
- It must further be remembered that the case before Zilwa AJ concerned the fairness or otherwise of the appellant’s dismissal by the Respondent. Two of the witnesses who testified at the trial on behalf of the Respondent, namely Marais and Kalternbrünn, were senior members of the Respondent’s management stationed at head office. The appellant was their subordinate. Their evidence, particularly Marais’s, was to be weighed against his because he was placing the blame for the Respondent’s financial loss on Marais, while Marais was placing it on him. Moreover, the instructions given to the firm of which Zilwa AJ was a partner by the Respondent for the preparation and execution of bonds were not a once-off occurrence.
- This is not the basis in casu. The suspicion is therefore not such as would be expected of a reasonable person in the position of the Applicant (DPP). Furthermore, regard being had to the averments of the Respondent that Mosito AJ neither ever represented him, nor was he part of Respondent’s defence team, which averment the correctness of which must be preferred on the principle in Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd.  2 All SA 366 (A), the suspicion is not based on reasonable grounds. It is not one which the reasonable person would have.
- A reliance on the case of BTR Industries South Africa (Pty) Ltd & others v Metal and Allied Workers’ Union & others 1992 (3) SA 673 (A) does not take the Applicant’s case any further. That case involved a refusal by the presiding member of a three-member Industrial Court (IC), to recuse himself in a matter in which the IC was hearing an application for an unfair labour practice determination between BTR Industries (BTR) and the Metal and Allied Workers Union (union) of which BTR’s employees were members.
- The presiding member had attended and addressed a seminar during an adjournment in the trial, which had been organised by a certain firm of consultants and advisers on industrial and labour relations. He had been invited to the seminar by the firm of consultants upon which BTR had relied ‘very heavily’ for advice during the negotiations between it and the union on the dispute that was now before the IC. Three other speakers at the seminar, which had been advertised as ‘for management and senior legal practitioners’, were Counsel representing BTR. In confirming the reviewing Court’s (Didcott J) order setting aside the proceedings in the IC for the reason that the presiding member should have recused himself, the Court reasoned that the facts of the matter were strong enough ‘to meet the less exacting requirements of the “reasonable suspicion of bias” test’. In the present case, no interest has been alleged on the part of Mosito AJ in respect of the present cause.
- It must be remembered that, the question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of a case, that is a mind open to persuasion by the evidence and the submissions of Counsel.( See: President of the Republic of South Africa v South African Rugby Football Union, above n6, para 48; SA Commercial Catering and Allied Workers’ Union v Irvin & Johnson Ltd (Seafood Division Fish Processing) (supra) at para 11; Sager v Smith 2001 (3) SA 1004 (SCA) para 15; Take and Save Trading CC & others v Standard Bank of SA Ltd 2004 (4) SA 1 (SCA) para 2).
- Bias claims are not only "fact-driven;" they are "highly fact-specific."(See: Peart v Peel Police 2006 CanLII 37566 (Ont CA) para 40), but also are "highly fact-specific."(See: Lesiczka v Sahota 2007 BCSC 479 (CanLII) para 13). A claim based on the adjudicative partiality of a Court must therefore be based on facts substantial enough to satisfy the requirements of the fair-minded reasonable observer.(See: Christian t/a Hope Financial Services v Chairman, Financial Services Board (1) 2009 1 NLR 22 (HCNm)). This first ground therefore, has no merit.
- The second ground upon which the Applicants require the judge to recuse himself is that, ‘Mosito AJ and my office, and those representing me, are presently, and have been so engaged over a significant period of time, in a discussion on where the duty to prepare an appeal record in a Subordinate Court matter, lies.’ He further avers that ‘Mosito AJ and I hold opposing views on this subject, and as this is one of the very issues that this Honourable Court will be obliged to decide, is, my view, a further compelling reason why it would be unwise for Mosito AJ to participate in this matter.’
- The learned Counsel, for the respondent advocate Mothibeli argued that, the question as to who bears the duty of preparing an appeal record from the Subordinate Court is not in issue in the main application. Regard being had to the prayers in the main case as outlined in paragraph 1 of this judgment, I agree with this submission.
- In any event, Judges are individuals who live in the real world. A number of those who are appointed to senior judicial posts have practised at the Bar. It is obvious that good judges will have a wealth of personal and professional experience, that they will apply with sensitivity and compassion to the cases that they must hear.(See: See for example the discussion by the Honourable Maryka Omatsu, "The Fiction of Judicial Impartiality" (1997), 9 C.J.W.L. 1. Given the nature of the aforesaid material, it is fitting to quote Cory J. in R. v. S. (R.D.),  3 S.C.R. 484 at para. 119, on the relevance of past experience to the question of apprehension of bias :
The requirement for neutrality does not require judges to discount the very life experiences that may so well qualify them to preside over disputes. It has been observed that the duty to be impartial does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those with whom we share the planet. Indeed, even if it were possible, a judge free of this heritage of past experience would probably lack the very qualities of humanity required of a judge. Rather, the wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave.
True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.
- It is obvious that good judges will have a wealth of personal and professional experience, that they will apply with sensitivity and compassion to the cases that they must hear. (See: Arsenault-Cameron v. Prince Edward Island,  3 S.C.R. 851).As was pointed out in Arsenault-Cameron’s case, ‘[t]he writings referred to by the Applicant do not reveal any prejudgment of the issues in this case. As formulated by Le Dain J. in Valente v. The Queen,  2 S.C.R. 673, at p. 685, partiality is “a state of mind or attitude . . . in relation to the issues and the parties in a particular case”, a real predisposition to a particular result.’
- In conclusion, I find that no evidence was adduced demonstrating that my beliefs or opinions expressed as Counsel, law professor or otherwise would prevent me from coming to a decision on the basis of the evidence. (See: Arsenault-Cameron v. Prince Edward Island,  3 S.C.R. 851).
- This application must accordingly be dismissed with costs. It is accordingly so ordered.
K.E. MOSITO AJ
I concur ________________
T. MONAPATHI ACJ
I concur _______________
N. MAJARA J.
For 1st to 5th Applicants: Adv G J Leppan
For Respondent: Adv T. Mothibeli