Director of Public Prosecutions (Adv. Hlalefang Motinyane V The Prime Minister & 4 Others (CC/0008/2024 (b)) [2025] LSHC 167 (28 July 2025)

IN THE HIGH COURT OF LESOTHO (Sitting in its Constitutional Jurisdiction) Held in Maseru In the Matter Between CC/0008/2024(b) DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT (ADV. HLALEFANG MOTINYANE) And THE PRIME MINISTER 1ST RESPONDENT THE MINISTER OF LAW AND JUSTICE 2ND RESPONDENT ATTORNEY GENERAL HIS MAJESTY THE KING THE CHIEF JUSTICE 3RD RESPONDENT 4TH RESPONDENT 5TH RESPONDENT Neutral Citation: Director of Public Prosecutions vs The Prime Minister and 4 Others [2025] LSHC 167 Const. (28th July 2025) CORAM : KHABO J MOKOKO J KOPO J HEARD : 01/07/2025 DELIVERED : 28/07/2025 SUMMARY Requirements for the Principle of Res Judicata- Recusal Application- Principles thereof revisited- Application for Recusal of Judges dismissed. ANNOTATIONS Cited Cases Lesotho 1. Joy to the World v Neo Malefane C of A (CIV) O9/2016 2. Private Sector Foundation of Lesotho v Thabo Qhesi and Others C of A (CIV) No. 6/2013 3. R v Manyeli LAC (2007-2008) 377 4. Zhai Feng Fu v Lesotho Stone Enterprises (Pty) Ltd LAC (2011—2012) South Africa 1. Bertram v Wood (1893) 10 SC 177 at 180 2. Boshoff v Union Government 1932 TPD 345 3. BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers’ Union and Another 1992 (3) SA 673(A) at 6931I-J) 4. De Lange v Smuts NO and Others 1998 (7) BCLR 779 (CC) 5. Kommissaris van Binnelandse Inkomste v Absa Bank Bpk 1995 (1) SA 653 (A) at 669D, 670J – 671B 6. Smith v Porritt & Others 2008 (6) S. A (SCA) 7. Solé v Cullinan and Others LAC (2000-2004) 572 8. S v Basson 2007 (3) SA 582(CC) 9. S v Roberts 1999 (4) SA 915(SCA) United Kingdom 1. Franklin and Others v Minister of Town and Country Planning [1948] AC 87(HL) United States 1. Marbury v Madison 5 U. S. 137 (1803) Statutes 1. High Court Act, 1978 2. High Court Civil Litigation Rules, 2024 3. Constitution of Lesotho 1993. Books 1. Damaseb P T: Court-managed Civil Procedure of the High Court of Namibia Articles. 1. Pennsylvania Law Review, Volume 173. JUDGMENT Introduction [1] On or around the 10th March 2025, the applicant launched an application seeking an order in the following terms; 1. That the Honourable Judges appointed by the Honourable Chief Justice to hear and determine the main application in which the Chief Justice has been joined as a party are in law disqualified from hearing the matter. 2. That the Honourable Judges appointed by the Honourable Chief Justice to hear and determine the main application in which the Chief Justice has been joined as a party recuse themselves from hearing the matter. Background to the dispute [2] Before we address the recusal application, it is pertinent to make special reference to the following background. [3] It is a matter of common cause that Justice Mahase, delegated by the Chief Justice, appointed a panel of three Judges to hear and determine this matter. Applicant contended that the composition of a panel of three Judges was irregular, as it is not provided for in the High Court Civil Litigation Rules, 20241 (the Rules). 1 Legal Notice No. 65 of 2024. [4] In addition, the applicant contended that it was the Chief Justice, through Justice Mahase, who allocated this matter to the said Judges in stark violation of section 12 of the High Court Act, 19782. The applicant contended that this section does not grant the Chief Justice the power to distribute cases to Judges, but rather to regulate such a process. [5] This court, at paragraph [26] of its judgment3, held as follows: “The Chief Justice is ipso facto the head of the Judiciary including the High Court. As such he holds both overall judicial and managerial powers of the Judiciary as an institution. Supervision is an intrinsic part of management. Allocation of matters to Judges is one of the primary administrative tasks in the administration of justice. He, therefore, has supervisory powers over the allocation of cases, particularly constitutional cases because of their sensitivity and importance. This entails providing guidance to the office of the Registrar on the allocation of such cases. It was in the exercise of this supervisory role that Mahase J., provided stewardship to the Assistant Registrar, Ms T. Kholoane to distribute this case to the three of us. The file bears the latter’s signature and is dated 09th September, 2024.” [6] Inter alia, the court made the following Orders: (a) All the preliminary objections are dismissed. (b)That parties set the matter down for the hearing and determination on the merits. 2 Act 5 of 1978. 3 The Director of Public Prosecutions v Prime Minister And 4 Others [2024] LSHC 246 Const. (04/12/2024) (c) The matter shall proceed with the current panel of Judges. [7] Consequently, the court directed the parties to file their heads of argument, and the date for the hearing of the matter was set. Be that as it may, the applicant failed to file her heads of argument as directed by the court, instead launching an application for the recusal of the judges. [8] The deponent made the following averments at paragraph [4.5] of the founding affidavit: “On 9th September 2024, the Honourable Chief Justice allocated the matter to Honourable Khabo, Mokoko and Kopo JJ. This was despite the Chief Justice having been joined in the application and despite the fact that the Chief Justice has no power under the law to allocate cases to Judges, but to regulate the distribution of business in the High Court, in terms of section 12 of the High Court Act 1978.” [9] It is worth noting that initially, the applicant raised preliminary points challenging the appointment by the Chief Justice of a panel of three judges, because the selection of this panel was in stark violation of Section 12 of the High Court Act, 1978. [10] The respondents have pleaded that the applicant’s present claim of recusal is based on an issue that this court has finally adjudicated. To support their plea, the respondents make special reference to the judgment of this court4, specifically paragraphs [26] and [27] of the judgment. This court has already referred to its findings at paragraph [26] of its judgment, in the preceding paragraph, and it is not necessary to refer to those findings again. 4 DPP’S Case ( supra). [11] The first issue for determination by this Court is whether the principle of res judicata precludes the applicant from bringing the same issue. Res Judicata [12] In the case of Joy to the World v Neo Malefane5, the Court of Appeal quoted with approval the following remarks: “In Smith v Porritt & Others6, the SCA summarised the requirements for a successful reliance on the exceptio rei judicatae as follows: ‘Following the decision in Boshoff v Union Government 1932 TPD 345 the ambit of the exceptio rei judicata has over the years been extended by the relaxation in appropriate cases of the common-law requirements that the relief claimed and the cause of action be the same (eadem res and eadem petendi causa) in both the case in question and the earlier judgment. Where the circumstances justify the relaxation of these requirements those that remain are that the parties must be the same (idem actor) and that the same issue (eadem quaestio) must arise. Broadly stated, the latter involves an inquiry whether an issue of fact or law was an essential element of the judgment on which reliance is placed. Where the plea of res judicata is raised in the absence of a commonality of cause of action and relief claimed it has become commonplace to adopt the terminology of English law and to speak of issue estoppel. But, as was stressed by Botha JA in 5 C of A (CIV) O9/2016. 6 2008 (6) S. A (SCA) para 10. Kommissaris van Binnelandse Inkomste v Absa Bank Bpk7, this is not to be construed as implying an abandonment of the principles of the common law in favour of those of English law; the defence remains one of res judicata. The recognition of the defence in such cases will however require careful scrutiny. Each case will depend on its own facts and any extension of the defence will be on a case-by -case basis. (Kommissaris van Binnelandse Inkomste v Absa Bank (supra) at 670E – F.) Relevant considerations will include questions of equity and fairness not only to the parties themselves but also to others. As pointed out by De Villiers CJ as long ago as 1893 in Bertram v Wood8, “unless carefully circumscribed, [the defence 4 2008 (6) SA 303 (SCA) para 10; referred to with approval by this court in Zhai Feng Fu v Lesotho Stone Enterprises (Pty) Ltd9 of res judicata] is capable of producing great hardship and even positive injustice to individuals.” [13] The Court of Appeal, when dealing with the principle of Res Judicata in the case of Private Sector Foundation of Lesotho v Thabo Qhesi and Others10, and relying on the case of Smith v Porrit and Others (supra) had this to say: “It is now well established that the requirements for the exceptio rei judicata will be relaxed in appropriate circumstances to the extent that the exceptio will be upheld in respect of a particular issue of law or fact even where the relief claimed and the cause 7 1995 (1) SA 653 (A) at 669D, 670J – 671B 8 (1893) 10 SC 177 at 180 9 LAC (2011—2012) 127 para 17. 8 10 C of A (CIV) No. 6/2013 at Page 7 para [12]. of action are not the same, provided that the parties are the same and the same issue arises. Whether the relaxation will be justified or not will depend on a consideration of the circumstances of each case”. [14] Applying the principles enunciated in the authorities referred to above, the following appears; the initial preliminary point raised by the applicant was that the Chief Justice through Mahase J allocated this matter to this panel of Judges, in stark violation of section 12 of the High Court Act 1978, which the applicant argued does not give the Chief Justice power to distribute cases to Judges, but merely regulate such process. This court, in its judgment (The DPP V Prime Minister LSHC 246 Const. 2024) delivered on the 4th of December 2024, dismissed this preliminary point. [ Paragraphs [26] and [27] of the judgment]. [15] The present application was launched in consequence of the dismissal of the preliminary point by the applicant. In this application, the applicant argues that the Chief Justice allocated the matter to this panel of Judges, despite that Chief Justice has been joined in the application, and despite the fact that the Chief Justice has no power to allocate cases to Judges, but to regulate distribution of business in the High Court, in terms of section 12 of the High Court Act 1978. [16] It is a matter of common cause that the parties are the same and that the applicant has raised the same issue regarding the selection of this panel, according to the applicant, in contravention of section 12 of the High Court Act 1978. This court dismissed this preliminary point; therefore, it is res judicata. [17] The second issue for determination by this court is the application for recusal of this panel. The ground for seeking the recusal of the panel of Judges in this matter is couched as follows, in the founding affidavit: “[5.2] The Honourable Judges are disqualified from participating in the main application and to hear that application by virtue of their relationship with the Chief Justice. They are junior Judges who have recently been appointed to the bench; are subordinate to and under the supervision of the Chief Justice; and their direct appointment by the Chief Justice may influence them to determine the matter in favour of the Chief Justice and against me as the applicant.” “[5.3] By virtue of their relationship with the Chief Justice, the Honourable Judges are predisposed to favour the Chief Justice and to dismiss my application.” The Law [18] The reasons for a litigant’s entitlement to a trial by an impartial judicial officer is well put in De Lange v Smuts NO and Others11 as follows: “Everyone is entitled to an impartial judge, not because this guarantees a correct decision, but because the human arbiter, not being omniscient should not be presented with a point of view that his or her position inherently loads. Everyone has the right to state his or her own case, not because his or her version is right, and must be accepted, but because in evaluating the cogency of any argument, the arbiter, still a fallible human 11 1998 (7) BCLR 779 (CC) Para 131 being, must be informed about the points of view of both parties in order to stand any real chance of coming up with an objectively justifiable conclusion that is anything more than a chance.” [19] The legal test for recusal applications was enunciated by the Court of Appeal in R v Manyeli12 as follows: “[9] 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 Another13. 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 Planning14, quoted with approval by Howie JA in S v Roberts15. [10] The requirements of the test were elaborated upon as follows in S v Roberts (supra)16. ‘(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. 12 LAC (2007-2008) 377. 13 1992 (3) SA 673(A) at 6931I-J 14 [1948] AC 87(HL) at 103 15 1999 (4) SA 915(SCA) at 922I-J 16 at paras [32] and [33] (pp 924E-925C) (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 695D-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.’ [11] In Solé v Cullinan and Others 17this court quoted with approval the following passage from President of the Republic of S A and Others v S A Rugby Football Union and Others.18 ‘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.’ 17 LAC (2000-2004) 572 at 586 18 1999 (4) SA 147 (CC) at 177B-D Regard must also be had to the fact that there exists a presumption against partiality of a judicial officer. S v Basson.19” [20] The standards of reasonable person and reasonable ground, called “double reasonableness,” emphasise the weight of the burden that rests on the litigant seeking recusal20. As said by Cameron AJ: “[15] It is no doubt possible to compact the ‘double’ aspect of reasonableness in as much as the reasonable person should not be supposed to entertain unreasonable or ill-informed apprehensions. But the two-fold emphasis does serve to underscore the weight of the burden resting on a person alleging judicial bias or its appearance. As Cory J stated in a related context on behalf of the Supreme Court of Canada: ‘Regardless of the precise words used to describe the test, the object of the different formulations is to emphasise that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity.” [16] “The ‘double’ unreasonableness requirement also highlights the fact that mere apprehensiveness on the part of a litigant that a Judge will be biased – even a strongly and honestly felt anxiety – is not enough. The court must carefully scrutinise the apprehension to determine whether it is to be regarded as reasonable. In adjudging this, the court superimposes a normative assessment on the litigant’s 19 2007 (3) SA 582(CC) at 606E-F 20 Sole v Cullinan NO & others LAC (2000-2004) 572 para [22] anxieties. It attributes to the litigant’s apprehension a legal value and thereby decides whether it is such that it should be countenanced in law.”21 [21] Where a reasonable suspicion of bias is alleged, a judicial officer is primarily concerned with the perceptions of the applicant.22, Thus: “An unfounded or unreasonable apprehension concerning a judicial officer is not a justifiable basis for such an application. The apprehension of the reasonable person must be assessed in the light of the true facts as they emerge at the hearing of the application. It follows that incorrect facts which were taken into account by an applicant must be ignored in applying the test.”23 [22] The brief facts of this case are that the applicant contends that, we are disqualified from hearing the main application by virtue of our relationship with the Chief Justice. Applicant avers that we are junior Judges who have been recently appointed to the bench; we are subordinate to and under the supervision of the Chief Justice; and our direct appointment by the Chief Justice may influence us to determine the matter in favour of the Chief Justice against the applicant. [23] Applicant contends that we have been directly appointed to the bench by the Chief Justice, and that may influence us to determine the matter in favour of the Chief Justice against the applicant. It is pertinent to state that it is a fallacy that, as Judges, we have been directly appointed by the Chief Justice. Section 120 of the Constitution of Lesotho provides for the 21 S. A Commercial catering & Allied Workers Union v I & J Ltd 2000 (3) SA 705 (CC) paras [15]-[16]. 22 Footnote 5 para [31] Letter H. 23 President of the RSA v South African Football Union 1999 (4) SA 147 (CC) para [45] letters F-G. appointment of Judges of the High Court. Section 120 (2) of the Constitution of Lesotho provides that the Puisne Judges shall be appointed by the King, acting in accordance with the advice of the Judicial Service Commission. It is clear that the applicant's claim regarding our appointment to the bench is without merit. [24] It is worth noting that the applicant does not explain the nature of the relationship between the Chief Justice and the individual Judges. The applicant further alludes to the fact that we are junior Judges who have recently been appointed to the bench. The applicant is casting unfounded aspersions on the individual Judge’s integrity and competence to dispense justice without fear or prejudice. We should state from the word go that, as Judges of this Court, we have taken the Oath of Office to dispense justice without fear or prejudice. [25] In Marbury v Madison,24 the court emphasized that the Constitution is the supreme law and that judges must uphold it. Chief Justice John Marshall’s opinion highlighted the oath Judges take to support the Constitution. Judge Wendy Beetlestone25 remarked as follows: “Specifically, I want to focus on the oaths of office taken by judges and military personnel. They are a solemn and foundational aspect of our democratic system. These oaths are not merely ceremonial formalities; they are a profound commitment to uphold the principles that underpin our society. Central among these principles is the Rule of Law, which 24 5 U. S. 137 (1803) 25 District Judge of the United States District Court for the Eastern District of Pennsylvania. Judge Beetlestone delivered remarks on March 20, 2025, as the keynote Speaker at the annual banquet of the University of Pennsylvania Law Review, Volume 173, page 59. ensures that every individual and institution is subject to and accountable under the law.” [26] These dual oaths carry profound significance. They emphasize a judge’s duty to uphold the Constitution and to administer justice impartially, ensuring that personal biases or external pressures do not influence their decisions. They also make it clear that a judge’s loyalty runs to the Constitution- and none other.26 [27] The issue regarding the period of appointment of the individual judges on this panel is neither here nor there. The critical issue is that each Judge has taken an Oath of Office to dispense justice without fear or prejudice. As Judges, we have taken an oath to uphold the Rule of Law and the Constitution of Lesotho. It is our responsibility to administer justice impartially and faithfully, ensuring that our personal biases or external pressures do not influence our decisions. As Judges, we consistently demonstrate that our loyalty runs to the Constitution of Lesotho, and none other. It is regrettable that the applicant, who is not only an advocate of this Court, but also a Director of Public Prosecutions, would cast such aspersions on the Judges’ integrity and competence. [28] We have found that the applicant has not demonstrated that there was a suspicion that we might be biased. The applicant has further failed to prove that a reasonable person in the applicant's position would have had a suspicion. Lastly, the applicant has not demonstrated any reasonable grounds for suspicion. 26 Judge Wendy Beetlestone, Key note Speaker at the annual banquet of the University of Pennsylvania Law Review, Volume 173 (supra) page 65 [29] Having concluded thus, it would be remiss of us not to address the approach of the Applicant in raising another preliminary issue when the Court had already directed on the way forward through the case planning conference. Since the High Court Civil Litigation Rules are fairly new and practitioners are only just weaning from the old High Court Rules, it is apposite that this Court gives a guide on the judicial case management procedure for future reference. [30] The ethos of the new Rules is to avoid unnecessary delays that were occasioned by the nature of the old Rules underpinned by the nature of our adversarial system. As Damaseb P T, in his book, Court-managed Civil Procedure of the High Court of Namibia puts it; The most salient characteristic of the orthodox adversarial civil justice is that the parties to litigation define the ambit of the dispute and decide what evidence to lead in order to prove or disprove a case. The role of the judge is that of a neutral and passive umpire with no real power or tools to expedite proceedings. The rules of court and practices underpinning the adversarial system thus place emphasis on litigants and their legal advisers as the prime drivers of litigation. Because of its emphasis on the interests of the litigants, the adversarial system is apt for be manipulated to frustrate an opponent and generally to cause delay. (my underlying) [31] We allowed the institution of the present application even after the road of the proceedings had been mapped, thinking that the Applicant may have come with genuine grounds for her application. However, this application has proved to have characteristics of frustrating the opponent or that the applicant has not weaned from the old practice. This will not be countenanced in the future. [32] It is for these reasons that this court makes the following Orders. (a) The respondents’ objection of res judicata is upheld. (b) The recusal application is dismissed with costs. ____________________ F. M. KHABO JUDGE ____________________ T. J. MOKOKO JUDGE ____________________ M. S. KOPO JUDGE FOR THE APPLICANT : Adv. S. T. Maqakachane FOR THE RESPONDENTS : Adv. Penzhorn SC instructed by Webber Newdigate Attorneys 18