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Home » Law Society v Prime Minister and Another (CIV/APN/99/85) (CIV/APN/99/85) [1985] LSHC 57
(06 May 1985);

Law Society v Prime Minister and Another (CIV/APN/99/85) (CIV/APN/99/85) [1985] LSHC 57 (06
May 1985);

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CIV/APN/99/85

IN THE HIGH

COURT OF LESOTHO
In the Application of:

LAW

SOCIETY Applicant

THE HON. THE PRIME MINISTER 1st

Respondent

ATTORNEY-GENERAL 2nd Respondent

JUDGMENT

Delivered by the Hon. Acting Mr. Justice D. Levy on

the 6th day of May, 1985.

application, I have decided not to make reference to the numerous

authorities

quoted to me by Mr. Fariam in his eloquent and most able

address on constitutional law. I hope I have not lost sight of the

principles

adumbrated by him.

This application concerns the appointment of Mr. Semapo

Peete as an acting Judge of the High Court of Lesotho which

appointment was

made by the King of Lesotho acting on the advice of

the Prime Minister. I assume that in so doing, the King purported to

exercise

the powers conferred upon him by Section 3(1) of the High

Court Act 5 of 1978 nor am I aware of any other statutory authority

to

make such an appointment. Mr. Fariam for the applicant has

challenged this appointment on the grounds that it was made beyond

the

powers vested in the King by the pro-vions of the High Court Act

of 1978 and he refers to Section 3 (1) in terms of which it

is

the King who shall appoint the Chief Justice and Judges acting in

accordance with the advice of the Prime Minister, while

of Section 3(4), it is the Prime Minister who shall for the reasons

set out in that Section appoint acting judges.

2 Sub-section 5

-2-

Sub-section 5 of Section 3 also provides that such

acting Judge shall so act for the period of his appointment or if no

such period

is specified,until his appointment is revoked by the

Prime Minister. There would therefore appear to be no explicit

authority vested

in the King to make or revoke an acting appointment

and that it is only the Prime Minister who may so appoint an acting

Judge and

revoke such an appointment. Mr. Farlam has argued that the

prerogative of the throne in the Kingdom of Lesotho has been defined

by

the High Court Act in so far as it affects the appointment of

that is so,then the King may not fall back upon his common law

authority whatever its terms may have been, to appoint acting Judges.

I am of the view, however, that an authority vested with

power to appoint a Judge may also appoint a Judge to fill a somewhat

lesser

office,that is,to act for a limited period or for an

indefinite period.

I hold the view that the power to appoint a Judge to

fulfil the judicial functions required of a Judge, must carry with it

by necessary

implication, the power to appoint a Judge to fulfil the

same functions for a limited or indefinite period. I find support for

this

view in the consideration that the wording of Section 3(1)

empowering the King to appoint Judges is in peremptory form,

while

the wording of Section 3(4) empowering the Prime Minister to

appoint acting Judges is permissive only. It follows that the Prime

Minister's authority to appoint acting Judges is only supplementary

or additional to the King's power to appoint an acting Judge.

High Court Act would of course, carry with it the

implication that my own appointment, which is in similar terms

to that of Mr.

Peete, has been invalidly made, and that all these

proceedings before me would, therefore become nullity.

In the view I form, while I am not anxious to protect

myself in my own office, I nevertheless find that

3/ Mr. Peete's .........

-3-
Mr. Peete's appointment was validiy made by the King.

I cannot agree that the High Court Act has put the

authority of the Throne to appoint Judges and acting Judges within

the narrow confines

of Mr. Farlam's interpretation of the Act, that

is, that only the King may appoint Judges and only the Prime Minister

may appoint

acting Judges. I am constrained to the view that the King

may also appoint acting Judges and that this is not the sole

prerogative

of the Prime Minister. I think it must be regarded as an

incident of the powers of the King to appoint judges that he may also

appoint

acting Judges. I accordingly find that the appointment of Mr.

Peete as an acting Judge was properly and validly made.

I turn now to consider the allegation that Mr. Peete's

permanent employment in the Government service in the Law Office

renders him

unfit for an acting judicial officer. It has not been

suggested that Mr. Peete is not qualified to act as a Judge. On the

the applicant has hastened to assure the respondents and

this Court, and I quote from the applicant's memorandum addressed to

the

Prime Minister, the first respondent, that :

"Mr. Semapo Peete is regarded by his colleagues

and members of the bench as an outstanding member of our profession

and a practitioner

of the greatest integrity and dedication".

But relying upon the provisions of Section 16(6) of the

Human Rights Act No. 24 of 1983, which states in its relevant

form that "The State shall have the duty to guarantee the

independence of the Courts", the

applicant contends that Peete's

appointment as an acting Judge is a violation of that Act and it

seeks a declaretur to that effect

from this Court.

The first question that arises and one that has been
adequately dealt with by Mr. Farlam is the justi-ciability of this

provision

of the Human Rights Act. I am prepared to

accept without deciding that the Act is justiciable at the instance

of concerned individuals and that the

Law Society as applicant in

this matter had a proper interest in bringing these proceedings.

4/ It remains, ......

-4-

It remains, therefore, to consider the grounds upon

which the applicant relies for the conclusion that Mr. Peete's

appointment is

a violation of the Human Rights Act. These arise from

the fact that at the time of his appointment as an Acting Judge,

Mr. Peete

was and remains a member of the staff of the Director of

Public Prosecutions and of the Solicitor-General who are the agents

in litigation
for the Government of Lesotho.

The applicant infers from this fact that Mr. Peete

remains under the authority and control of the Director of Public

Prosecutions

and of the Solicitor-General. This is an unjustifiable

inference.

While no doubt at the end of his appointment, Mr. Peete

may well return to his employment on the staff of the Director of

Public Prosecutions

and of the Solicitor-General, the suggestion that

while on the Bench,he will be subject to or that he would be asked to

accept or

if asked that he would yield to the directions of the

Director of Public Prosecutions and/or of the Solicitor-General is

not only

unjustifiable and unwarranted but a direct contradiction of

the applicant's own testimonial to Mr. Peete as a practitioner

of

the greatest integrity and dedication.

in appointing its Judges and acting Judges, that they are chosen not

only

for their ability in the practice of Law but also and equally

importantly because they are persons whose integrity is above

reproach.

To suggest of such a person as Mr. Peete, therefore,

that he might well in the execution of his functions as a Judge

accept the directions

of the Director of Public Prosecutions or of

the Attorney-General is indeed an unwarranted attack on his

character and integrity.

It has also been suggested that since Mr. Peete had

never been a member of any Judicial Bench anywhere, and that his only

experience

in Law has been gained in his present employment, that

this also would make him the more amenable to such influence as the

Director

of Public Prosecutions or the Attorney General might

wish to subject him to. Apart from Mr. Peete, this amounts to be an
attack

5/ on the integrity

-5-

on the integrity of the persons holding these offices

which I regard as an unwarranted denigeration of their

characters and integrity,for it contains the broad inference

that Mr.

Peete's seniors in those Departments have and would continue

to exercise their authority over him, while he acts as a Judge in

matters

that concern only the litigants before him to the improper

advantage of the Government of Lesotho as a potential litigant

in

any such disputes.

Chief Justice, he undertook to administer justice to all in

accordance with

the Laws of Lesotho without fear, favour or

prejudice. If applicant's testimony to Mr. Peete's character is

justified then there

can be no reasonable grounds for fear that he

might act in breach of his oath or in such a way as to threaten or

undermine the independence

of the Courts. On the contrary, of such a

man, we can expect that he will do all in his power to uphold it, and

if Mr. Peete is somewhat

lacking in experience, then we can expect

that he will nevertheless learn to cope adequately with his work on

the bench.

It has also been argued before me that not only should

justice be done but that it also should manifestly be seen to be

done. This

argument was advanced in the applicant's memorandum to the

Prime Minister before the launching of these proceedings and it was

said

then with some force perhaps that in matters where the

broad

sense then justice would not palpably be seen to be done where

the matter is being tried before an acting judge who, it might almost

be said has been seconded to the bench in a temporary capacity. This

is the expression of a fear that Mr. Peete will possibly defer

the

administration of Justice to the interests of his employer in breach

of his oath. As a reasonable man, I would rather believe

and expect

that Mr. Peete will not be subservient to the lesser interests

of the Crown and the Government and that he will pay

deference only

to their and his true interests which always are to administer

justice to all without fear, favour or

6/ or prejudice. ........

-6-

or prejudice. I prefer to believe also that both the

the interests

of their offices to be protected by Mr. Peete only

where justice demands it.

Applicant's counsel has conceded that if Mr. Peete had

been appointed as an acting Judge for, say two months that this

difference

in the term of his appointment would be sufficient to give

him such independence in the eyes of public and of the applicant, as

would

lead them away from any thought that he is not acting

independently in his office on the bench.

To me the difference between such an appointment and Mr.

Peete's present appointment is so small that 1 cannot see that any

inference

can be drawn from Mr. Peete's actual appointment that could

not be drawn from such an hypothetical appointment. And, if not from

the latter, then it cannot be drawn from the terms of the present

appointment.
To say that Mr. Peete's independence would be visibly

affected by an indefinite appointment and not by an appointment

for some

fixed period, is to state a difference which has no

existence either in appearance or content.

Mr. Peete no doubt will return to his employment in the

Law Office on the termination of his appointment as an acting Judge,

but while

on the bench as an acting Judge, he will have laid aside

the duties and responsibilities of his employment. And even if

he is

an ambitious man he would know that his ambitions will not be

advanced by any untoward care or improper concern for the interests

of the Crown or of the Government. In my view, no reasonable man

would have such thoughts in his mind, and he would be satisfied

as I

am that Mr. Peete will find for the State and for the Government and

for the Crown only where justice demands it.

There might be some support to be found for the

respondents in the provisions of Section 14 of the High Court Act,

Judges from the prohibition against holding other

offices of profit. I did not find

7/ it necessary

-7-

it necessary to consider this aspect in view of my

judgment as I have already expressed it.

For these reasons, I dismiss the application.

There has been notice of an application given by the

respondents of their intention to seek atorney and client costs

against the applicant.

I am satisfied that the Applicant has been

fide believes to be contrary to the best interest of the

public and of the courts and I am satisfied that bringing this

application

in no way merits any mark of displeasure by the

Court.

The application is accordingly dismissed with costs.

D. LEVY

ACTING JUDGE

6th May, 1985.

for Applicant : Mr. Farlam, For Respondent : Mr.

Tampi.
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