Rantuba and Others v Commanded of LDF and Others (CIV/APN 418 of 98) [1998] LSCA 110 (27 November 1998)

CIV/APN/418/98 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: 'MANTSITILE R A N T U BA T L A L A NE L E H L O BA ' M A M A FA M A K H E LE 1ST A P P L I C A NT 2 ND A P P L I C A NT 3 RD A P P L I C A NT A ND C O M M A N D ED OF L. D. F. C O M M I S S I O N ER OF POLICE A T T O R N EY G E N E R AL C O L O N EL R. HARTSLIEF S O U T H E RN A F R I C AN D E V E L O P M E NT C O M M U N I TY DIRECTOR OF PUBLIC P R O S E C U T I O NS 1ST R E S P O N D E NT 2 ND R E S P O N D E NT 3 RD R E S P O N D E NT 4 TH R E S P O N D E NT 5 TH R E S P O N D E NT 6 TH R E S P O N D E NT J U D G M E NT Delivered by the Honourable M r. Justice W. C. M. M a q u tu on the 27th day of N o v e m b e r, 1 9 98 This application w as brought by the applicants w ho are the wives of detained military m en suspected of having b e en involved in a m u t i ny / against their senior officers a nd their c o m m a n d e r. They complain that their husbands are denied the right to see their attorney. They w e re also afraid for the personal safety of their husbands a nd honestly believed, they were being tortured or their h u m an rights were being violated. The history of this matter, w h i ch is c o m m on cause, is that s o me elements in the a r my led a successful mutiny against their senior officers and their c o m m a n d e r. Anarchy followed a nd law a nd order broke d o w n. S o me young boys a nd girls began closing government offices, including the courts a nd seizing Government vehicles. The police, w ho h ad previously h ad a shoot-out with the a r my in w h i ch there w e re police casualties, stopped maintaining law and order. There w as anarchy. It is also c o m m on cause that the mutiny w as caused by the fact that the a r my sympathised with s o me political parties that h ad lost general elections recently. M e m b e rs of these parties h ad assembled at the Palace gates demanding that the King should dismiss the recently sworn-in government and nullify the elections. They h ad continued to be at the Palace for several weeks. W h en the police asked the protesters to disperse, the protesters refused, violent incidents inevitably followed. These culminated in the aforesaid mutiny of s o me elements in the a r my w h i ch were d r a wn into these violent incidents on the side of protesters. T he G o v e r n m e nt asked the g o v e r n m e n ts of the Republics of South Africa a nd B o t s w a na to send troops to quell the m u t i ny a nd to restore order. It is c o m m on cause that Lesotho, B o t s w a na a nd South Africa belong to the Southern African D e v e l o p m e nt C o m m u n i t y, a b o dy w h i ch is apparently extending its activities b e y o nd those of e c o n o m ic development to maintaining d e m o c r a cy in m e m b er states. It is agreed by both sides that South African a nd B o t s w a na military forces did quell the m u t i ny a nd restore the C o m m a n d er of the Lesotho Defence Force a nd his dismissed senior officers to their c o m m a n d s. During this period, it is not clear w ho is in overall c o m m a nd b e t w e en the C o m m a n d er of the Lesotho Defence Force a nd the foreign military forces in the country; hence the citation of Colonel R. Hartslief a nd the Southern African Development C o m m u n i t y. M r. Makhethe, w ho appeared for the Attorney General, crisply stated that the query about the citation of these respondents simply dissolved during a r g u m e n t. M r. Phoofolo conceded that the foreign forces h ad b e en invited by the G o v e r n m e n t, therefore there w as no point in m a k i ng an issue of their presence in the country. He h ad merely cited t h em because of the confusion in the chain of c o m m a n d. This application w as brought ex parte as a matter of urgency on the 19th October, 1 9 9 8, for an order in the following terms: " 1. T he Rules of this H o n o u r a b le Court pertaining to service a nd notice be dispensed with a nd the matter be heard as a matter of urgency. 2. (a) R e s p o n d e n ts should not be directed to allow the applicants' legal representative to h a ve free a nd uninterrupted access to the prisoners, a nd to consult w i th t h em in secret. (b) R e s p o n d e n ts should not be directed to cause the bodies of the prisoners Gabriel Litile B a n t u b a, Tholang Lehloba, Khoejane M a k h e le to be brought to be inspected by the H o n o u r a b le J u d g e. (c) R e s p o n d e n ts should not be directed to cease subjecting the above-mentioned prisoners to interrogation without their consent a nd in the presence of their attorney if the prisoners so w i sh a nd request. / (d) R e s p o n d e n ts should not be directed to cause or allow the above-mentioned prisoners to h a ve access to medical treatment w h e n e v er the n e ed arises f r om doctors of their choice. (e) Respondents should not be restrained f r om interfering with the liberty of the above-mentioned prisoners except by the d ue process of law. (f) Respondents should not be directed to give charges to above-mentioned prisoners forthwith failing w h i ch they should cause t h em to be released f r om prison. (g) Respondents should not be directed to allow the prisoner, Gabriel R a n t u ba to write his J. C. examinations. T he Court dispensed with the n o r m al rules of service a nd m a de the following interim order: "(a) That applicants' h u s b a n ds should be allowed to m e et their (b) (c) (d) (e) attorney. That this application be served on the respondents. That respondents file opposing papers if they i n t e nd to oppose this application on or before the 21st October 1998. Applicants file replying papers before 12 n o on on the 2 2 nd October, 1 9 9 8. this application will be heard at 2.30 pm on T h u r s d ay the 2 2 nd October 1998." Before there w as even a return of service, applicants' attorney, on the 21st October, 1 9 9 8, w as before court ex parte seeking an order of committal to prison of the respondents for c o n t e m pt of court. T he reason being that after respondents h ad b e en served with the Court Order, he w as not allowed to see the detainees w ho are applicants' husbands. Because the matter w as going to be heard the following day, the Court deferred this application for committal. On the 2 2 nd October, 1998, the hearing of the application c o m m e n c e d. At the e nd of the hearing, on the 2 3 rd October, 1 9 9 8, the Court m a de the following order: "1. That a rule nisi be issued returnable on 17th N o v e m b e r, 1998, at 9.30 a.m. calling u p on respondents to s h ow cause w h y: Applicants' attorney or counsel should not h a ve access to the applicants' h u s b a n ds w ho are military personnel (arrested on suspicion of committing military offences such as m u t i n y) at the 7 . investigation stage, before charges are laid. 8. 3. 4. (a) T he applicants'attorney or counsel a nd the Attorney General are authorised, to appoint a d ay on w h i ch they shall see the applicants* h u s b a n ds to ascertain w h e t h er or not they h a ve b e en tortured. (b) Applicants a nd the Attorney General are authorised to appoint their o wn medical doctors to investigate a ny allegations of torture or bodily abuse that applicants m i g ht h a ve m a d e. Questions of jurisdiction a nd costs are deferred to be argued on the return date. T he parties are directed to file their h e a ds of a r g u m e nt on or before the 13th N o v e m b e r, 1998." On the d ay of the return day, nothing w as said or h e a rd about a ny allegations of torture or ill-treatment of the detained prisoners. That being the case, I am obliged to conclude that they w e re not ill-treated. M r. Phoofolo for applicants, h o w e v e r, gave me the impression that asking the detainees questions in that regard w as pointless, since the order w as that this should h a ve b e en d o ne in the presence of C r o wn Counsel. T he weight of the a r g u m e nt of the Director of Public Prosecutions in approaching this application w as basically that: "Events of the past few m o n t hs are a bitter r e m i n d er of w h at it is like for there to be no law, order or effective authority; a nd courts of law are called u p on to restore a nd enforce order a nd respect for law."—per Mofolo J in Mochema M o c h e ma v Officer C o m m a n d i ng (Mafeteng) a nd J Others, C I V / A P N / 4 2 2 / 1 9 98 (unreported). As the detained prisoners (so the a r g u m e nt w e n t) w e re m e m b e rs of the a r m ed forces suspected of m u t i ny as a result of w h i ch the courts h ad themselves suffered, the courts should a m o ng other things, realise they h ad no jurisdiction in the matter as the Constitution provided for courts- martials to deal w i th military offences. There w e re courts-martials a nd other structures within the a r my w h i c h, in t e r ms of the Constitution are designed for this purpose. It should, of course, be observed that Mofolo J nevertheless in M o c h e ma M o c h e m a 's above h ad quoted w i th approval the following passage f r om Liversridge v A n d e r s on [ 1 9 4 2] AC 2 06 at page 2 44 per Lord Atkin: "In this country, a m id clash of a r m s, the laws are not silent, they m ay be changed, by they speak the s a me language in w ar as in peace... Judges are no respecters of persons a nd stand b e t w e en the subject a nd a ny attempted e n c r o a c h m e nt on its liberty by the executive, alert to see that a ny coercive action is justified by the law." At the root of the problem (during the hearing) w as that b o th counsel h ad no authorities for their submissions. T h ey w e re m a k i ng submissions on military law, the jurisdiction of the court a nd the p o w e rs of the court in respect of military personnel a nd the courts-martial. That called for this court's investigation. W h at w as even worse, even the court's library h ad nothing on military law despite the fact that the a r my is an old institution w h i ch is sanctioned by law. T he Constitution speaks of h u m an rights in a democratic setting. That being the case, it w as obvious that traditionally, military law a nd courts martial h ad always existed with a democratic culture of h u m an rights. T he court h ad given both counsel m o re t h an t wo w e e ks to look for authorities a nd case law from Britain a nd other countries w h i ch are k n o wn to have a long military tradition within a constitutional system that h ad observed h u m an rights over the years. Counsel on both sides did w h at they could to be of assistance to the court despite the constraints u n d er w h i ch they operated. T he confusion that characterised the w ay this case w as argued before me is by no m e a ns unusual. T he reasons being that our courts do not normally c o me in contact with military law. In the preface of the c o m m e n t a ry to the j u d g m e nt of McCardie J in H e d d on v Evans King's B e n ch J u ne 4th 1 9 1 9, Richard O'Sullivan in Military Law a nd the S u p r e m a cy of Civil Courts ( 1 9 2 1) said: "The judgment...dissolves all the doubts a nd uncertainties that previously surrounded the constitutional position of the soldier a nd English law." This s h o w ed that confusion on this aspect is not the m o n o p o ly of Lesotho. At pages 56 a nd 57 of that b o ok enlistment is described as a contract between the person enlisting a nd the C r o w n. It i m p o s es special duties. A soldier does not cease to be a citizen. He changes his status in the s a me w ay as a married m an a s s u m es n ew liabilities. At page 59 of that b o ok McCardie J said: "It s e e ms to me as a matter of principle that the liberty of a soldier should not be infringed, n or should his person be infringed, n or should his person be invaded, save insofar as that infringement or invasion is justified by either the law military or the civil law. T he question of justification should ultimately be determined by the ordinary Courts of L a w ." W i th these views I agree a nd indeed Counsel on b o th sides, o n ce they understood w h at military law w as about, w e re of the s a me view. W h at the courts will not interfere with is military discipline administered according to law. Courts are not supposed to, n or are they expected to interfere with military discipline provided it is within the confines of the law. As Lesotho h as inherited parliamentary d e m o c r a cy f r om the United K i n g d o m, it follows that military law, defence of the realm, disciplinary law a nd courts-martials should be understood as being of the s a me conception a nd m e a n i ng as in the United K i n g d o m. In other w o r ds the l aw of the / United Kingdom is our foundation stone in respect to disciplinary law for disciplined forces. Parliament is empowered by the Constitution to develop or build our law on the military and other disciplined forces such as the police force and the prison service within the parameters of a democratic society as understood in the United Kingdom w h en Lesotho got its independence. Once this legal premise is understood, Lesotho can safely say it has inherited a centuries old tradition from the United Kingdom. Consequently there is a lot of case law and legal tradition to draw from in interpreting our disciplinary law within the Constitution. Bradley and Erwing in Constitutional and Administrative Law 12 Edition at page 378 crisply state: "Military law is the basis of discipline in the armed forces, for a disciplined force could not be run on the ordinary law applicable to civilians. But it does not follow from this that those w ho join the armed forces should be required to surrender the right to be treated fairly or that they should be expected to waive their h u m an rights." This applies to Lesotho's armed forces if Lesotho is a democratic country. Going over the Lesotho Defence Force Act No.4 of 1996 and the Defence Force (Court-Martial Procedure) Rules of 1998,I observed that they were fair and were intended to treat those w ho are subject to military law justly and firmly. Unfortunately because (at places) certain details which ought /..... to be spelt out w e re missing, these laws w e re capable of misinterpretation. Jurisdiction T he Director of Public Prosecutions h ad asked to be joined as the sixth respondent. This application, w h i ch w as u n o p p o s e d, w as granted particularly because he h ad no intention to file a ny affidavits. T h e r e u p on he took over the leadership of C r o w n 's team. He instantly raised the question of jurisdiction. T he court directed that it should be a r g u ed along w i th the merits because the question of access a nd military l aw w e re closely interwoven w i th the merits. G. H u m p h r e ys a nd Ciaran C r a v en in Military Law in Ireland ( 1 9 9 7) at page 96 say:- "A m e m b er of the defence forces, w h e t h er an officer, n o n- c o m m i s s i o n ed officer, or soldier, does not cease to be a citizen of the state n or does he lose the benefit of rights guaranteed u n d er the Constitution. While remaining subject to ordinary laws of the State, he also b e c o m es subordinate to a further, a nd entirely distinct code of military law." It will be observed that in terms of Section 1 27 of the Constitution, courts- martial are nothing b ut specialist courts or tribunals, a nd "shall subject to the provisions of this constitution, h a ve s u ch jurisdiction a nd p o w e rs as m ay be conferred on it by or u n d er a ny law". By this, I u n d e r s t a nd that courts-martials cannot lawfully be established or h a ve p o w e rs that collide / with, the principles a nd the spirit of the constitution. If the legislature w e re to attempt to establish t h em contrary to the provisions of the Constitution, this court w o u ld be obliged to declare s u ch an act unconstitutional. Since the case of M a r b u ry v Madison 1 C r a n ch 1 3 7 ( 1 8 0 3) the constitution is regarded as a "superior p a r a m o u nt law". Consequently a ny law is to be reconciled with the constitution by the courts. Unless this w as the case: "It w o u ld be giving to the legislature a practical a nd real omnipotence, with the s a me breath w h i ch professes to restrict their p o w e rs within n a r r ow limits."—William H. Rehnquist The S u p r e me Court ( 1 9 8 7) at page 1 1 4. It goes without saying that courts-martial m u st act within the statutes that created t h e m, a nd it is this court that m u st determine w h e t h er their acts are intra vires. T he British M a n u al of Military Law ( W ar Office) 1 9 14 clearly states that the H i gh Court of Justice h as the p o w er to prohibit a court-martial f r om "transgressing the b o u n ds prescribed to it by law." It follows therefore that this court h as the p o w er to look into the complaint of the applicants that their h u s b a n ds are being denied access to their attorney contrary to law. T he offence of m u t i ny (although a disciplinary offence) is the m o st serious offence that a m e m b er of the a r m ed forces c an ever be suspected of committing. If an allegation of n o n- access to an attorney is m a de in s u ch a case, the court is obliged to investigate the complaint speedily. Investigation Section 8 9 (H of the Lesotho Defence Force Act 1 9 96 provides: "The allegations against a ny person subject to this Act w ho is u n d er arrest shall be duly investigated without unnecessary delay, a nd as soon as m ay be, either proceedings shall be taken against h im or he shall be released f r om arrest." T he h u s b a n ds of applicants h a ve b e en in detention, u n d er arrest, as suspects for allegedly committing a m u t i ny for over 35 days. By a ny stretch of imagination there h as b e en an inconscionable delay. Section 89(1) h as b e en violated. T he fact that I asked counsel on b o th sides to do s o me research because without a ny guidance on military law, I w as not having the benefit of a r g u m e nt to w h i ch I am entitled to (as a court) is no excuse. T he military authorities should have not lost sight of the fact that the h u s b a n ds of applicants w e re incarcerated, a nd their right to be charged or released w as being violated. This right is not only spelt out in the Constitution, it is also specified in the Lesotho Defence Force Act of 1 9 9 6. T he question arises, h ow long should a military offence be u n d er investigation? In my view, military offences should be investigated a nd punished m u ch m o re speedily t h an in civilian ones. T he a r my w as provided with special procedures to p u n i sh insubordination, m u t i ny a nd other disciplinary offence connected w i th dilatoriness in the performance of duties in order to e n h a n ce its alertness a nd effectiveness, should it suddenly be called u p on to go into c o m b at duties. W h en the m u t i ny h ad b e en suppressed, I w o n d er if failure to deal with mutineers resolutely a nd timeously is not conduct that could easily fall within "conduct to the prejudice of military discipline". See Section 79 of the Lesotho Defence Force Act 1 9 9 6. Indeed w h at w as lawful arrest h as degenerated into an irregular one. See Section 67(1)(a) w h i ch provides: " A ny person subject to this Act w h o, w h en another p e r s on subject thereto is u n d er arrest - unnecessarily delays the taking of s u ch steps as it is his duty to take for investigating the allegations against that other person c o m m i ts an offence." A l t h o u gh time limits are not in Section 67 specified b e y o nd the 24 hours reports on w h i ch a charge is to be based, there c an be no doubt that speedy action h as to be taken in m a k i ng a final decision as to the fate of the prisoner. It s e e ms to me in the absence of u n u s u al circumstances, the prisoners should have been charged after an investigation of not m o re t h an 48 hours. See Section 6(3) of the Constitution. O ne of the reasons this court w as obliged to postpone this matter for t wo w e e ks a nd request both counsels to do s o me research w as the submission m a de on behalf of the respondents to the effect that there w as no right against self-incrimination in the Lesotho Defence Force Act of 1 9 96 a nd its Regulations of 1 9 9 8. I h a ve serious p r o b l e ms w i th this submission, I think it w as based on the w r o ng understanding of the military system of justice. In Lesotho a nd Britain, the position on the right against involuntary self-incrimination is not clearly spelt out. In the Uniform Code of Military Justice of the USA 8 31 Art 31 there is the following: "Compulsory Self-Incrimination Prohibited (a) No person subject to this chapter m ay c o m p el a ny person to incriminate himself or to a n s w er a ny questions the a n s w er of w h i ch m ay tend to incriminate him." In the British M a n u al of Military Law WAR O F F I CE 1 9 14 page 7 4, it is clearly stated that for a confession to be admissible, it must be proved that it was freely and voluntarily made. In the Military Manual of Military Law Ministry of Defence Part 1 of 1972 page 117 paragraph 86 the question of inadmissibility is put in a slightly different way; in the following words:- "Where however, it is represented to the court that the confession was or may have been obtained either by oppression of the person w ho made it or in consequence of anything said or done which was likely, in the circumstances existing at the time, to render the confession unreliable, it is for the prosecution to prove beyond reasonable doubt that the confession was not obtained in either of these ways." An examination of the Defence Force Discipline Regulations of Lesotho shows clearly that everything is done to see that the prisoner or suspect does not unintentionally incriminate himself. There are avenues open to him to have legal representation in terms of Regulation 19, should he have to appear before a court-martial on a serious offence, or elects so to appear at the conclusion of a summary trial involving a relatively minor offence. Regulation 27(7) also gives the prisoner or accused the right where summaries and records of evidence have to be made in investigations under Regulation 19. a right to be cautioned by the recording officer in the following terms: "Do you wish to make any statement in your defence? You are not / obliged to m a ke a ny statement unless y ou wish, to do so, b ut whatever y ou say will be recorded a nd m ay be produced in evidence if y ou are subsequently tried before a military court." This does not appear to me (insofar as the Lesotho Defence Force is concerned) to be a f o rm of preliminary investigation in w h i ch the prisoner or suspect is expected or induced to incriminate himself. It w o u ld s e em therefore involuntary self-incrimination is not allowed in Lesotho. Lesotho, apart to regulation 2 7 ( 7) h as a Bill of Bights in the Constitution on a m o d el akin to that of the United States of America. I c an therefore say the right against self-incrimination also exists in the disciplined forces as well. In the s a me Lesotho Defence Force Colonel Sehlabo died in military custody while s o me offences against h im w as being investigated. He w as the third highest ranking officer in the force. T he offences w e re never specified. There w as non-access by his lawyer a nd family. He w as extensively tortured, a nd burnt, p r e s u m a b ly to obtain an incriminating confession. Inquest N u m b er 39 of 1 9 86 revealed that Colonel Sehlabo died from saeptocaemia following infected burns. It is therefore understandable that the applicants m u st have believed the worst w h en they could only see their h u s b a n ds without s o m e o ne hearing f r om t h em in private w h at h ad b e en h a p p e n i ng to t h e m. E v en their attorney, w ho normally w o u ld h a ve seen t h em a nd interviewed, t h em in private, w as denied, this right. Although the h u s b a n ds of applicants w e re visibly u n h a r m ed M r. Phoofolo, their attorney, w as not satisfied all h ad b e en well. He implied they could not h a ve disclosed w h at h ad b e en h a p p e n i ng to t h e m. It creates uncalled for suspicion not to allow a detained prisoner rights of access normally accorded suspects. This cannot be conducive to a feeling that all is well a nd the suspect h as not b e en tortured. It creates the suspicion that the prisoner is being kept a w ay from the public until injuries inflicted t h r o u gh torture h a ve healed. Investigations h a ve to be m a de a nd reports of events that occurred in the line of duty m a d e. W h e re suspects are involved, it is legitimate to find out facts f r om t h em fairly a nd within the limits of the law. This is a delicate a nd risky area. It is not u n k n o wn for torture to be u s ed in order to obtain leads in investigations a nd even confessions that will not be used at the trial. It is for s u ch reasons that lengthy detentions without access are avoided because this puts temptations on investigators to u se torture a nd other suspect m e a n s. It is precisely to r e m o ve f r om investigators the temptation of extracting information oppressively or by torture a nd other suspect m e a ns that in o ur l aw a detained suspect cannot be detained b e y o nd 48 h o u rs without being given a charge. Nothing in our military law expressly permits investigators to take m o re t h an 48 h o u rs without formally charging the detained suspect. I agree with Mr. Phoofolo that this detention of the husbands of the applicants is based on the interpretation of laws that restrict h u m an rights. In such a situation, more cannot be read in the Lesotho Defence Force Act and its Regulations than what is expressly stated. Even if the military authorities had been expressly given the power to exceed the customary 48 hours in their investigative detention, such a provision would be strictly interpreted because as Hendler AJ stated in Mbali v Minister of Police 1954(2) SA 596 at 598C: "It has become an accepted principle that since these provisions restrict the ordinary rights of individuals...they are to be strictly interpreted against the authority in whose favour they are imposed and benevolently interpreted in favour of persons upon w h om they are binding." In reaching this conclusion, I am guided by the clear legislative directive given to the military authorities to avoid delays once a person subject to military law has been arrested. Section 89(1) of the Lesotho Defence Force Act of 1996 unambiguously states: "The allegations against any person subject to this Act w ho is under arrest shall be duly investigated without unnecessary delay, and as soon as maybe..." / There is nothing under the law to stop investigations from continuing and other additional charges added after the charge has been preferred. I noted that our Section 89 of the Lesotho Defence Act 1996 is based on Section 75 of the British Army Act 1955. In the British one, a court-martial has to be assembled within 8 days while in Lesotho this should be done within 14 days. During argument Mr. Makhethe referred me Section 90(6*) of the Lesotho Defence Force Act 1996 enjoining me to interpret it to m e an that investigations can continue beyond 14 days without the detained military suspect being given a charge. The view I take is that investigations can continue even where a charge has been preferred against a suspect. It does not mean a suspect can be held for long periods during which "the Commander of the Defence Force at periods of not more than 14 days" can inquire into the progress being made on the investigation. Such an interpretation would be in serious conflict with the Constitution, I have no doubt that Parliament had no such intention. If it had, such a provision would be unconstitutional. In terms of Section 15 of the Interpretation Act of 1977, I have to interpret Section 90 of the Lesotho Defence Force Act 1996 remedially and / give it "such, fair, large and liberal construction and interpretation as best ensures the attainment of its objects". Therefore I have to reconcile it with section 89(2') of the Lesotho Defence Force Act above which requires a court-martial to be assembled within 14 days, and if this is not done, Commander of the Defence Force and other senior military officers must be given a report on the problems that are confronted every 14 days until either a court-martial is assembled or the offence is tried summarily or the military suspect is released. This provision is substantially fair because there can be all sorts of problems in the way of assembling a court-martial. This court has a duty to see that the legislature makes all laws (including those affecting the disciplined forces) that are consistent with the provisions of the democratic Constitution of Lesotho. Gerard Humphreys and Ciaran Craven in Military Law in Ireland page 98 quotes the following passage from Findlay CJ in C v Court-Martial & Others, a passage with which I agree: "The court can and should pay a particular respect to the fundamental importance of the constitution and under the structure of society the disciplinary machinery and discipline codes of the Defence Forces but...that respect and in a sense a reluctance to intervene can never possibly interfere with a duty of the court to do justice to a member of the Defence Forces...." / In other words, a soldier cannot invoke the ordinary law of the land against military disciplinary action unless he can show a denial of natural justice or a violation of a statutory right. I am of the view that there was a violation of the Lesotho Defence Force Act and a denial of a right to a speedy trial through an unduly long impermissible investigation. This court is aware of what Renquist J (as he then was) said in Parker & Others v Levy (1974) 417 US 733 at page 744 to this effect: "The army is not a deliberative "body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command or the duty of obedience of a soldier... The military constitutes a specialised community governed by a separate discipline from that of the civilian... The rights of men must perforce be conditioned to make certain demands of discipline and duty." While noting the special character of the military it should never be forgotten that people with rights voluntarily join it. Even in circumstances in which they do not, it is in a constitutional democracy an arm of democratic state of people with rights. It strikes me as highly probable that this lassitude and disregard of the rights of the husbands of applicants was the result of ignorance and the belief that the law permits this conduct. That is the way this application was argued on behalf of respondents. / N o n - a c c e ss of c o u n s el to detainees It w as vigorously argued, that at the investigation stage, the prisoners suspected of m u t i ny should, not h a ve access to their attorney. E v en in civilian life during the forty-eight h o u rs of detention the suspect is not expected, to be interrogated in the presence of his attorney. This only h a p p e ns w h en he says his attorney should, be called, because he is not prepared to a n s w er questions in his attorneys absence lest he incriminates himself. W h at b e c a me objectionable w as the u se of the investigatory m a c h i n e ry to d e ny the detainees access to legal representation essential for preparation of their defence. If this investigation that followed detention h ad taken a reasonable period of about 48 h o u r s, this application w o u ld not h a ve b e en reasonable. As I h a ve already said, it h as taken 35 days. Indeed as M r. Phoofolo for applicants said the C o m m a n d er does not say w h at p r o b l e ms led to this. I h a ve already stated that in a r g u m e nt it w as said this long investigation w as to extract information a nd there w as no right against involuntary self-incrimination. E v en if s u ch respondents h ad a right to force the detainees to incriminate themselves ( w h i ch it not the case) the u n d ue delay of their investigation is certainly an abuse of the process of investigation. In terms of Rule 10 of the Defence force Court-Martial Procedure Rules of 1998 the husbands of applicants as detainees or prisoners (suspected of mutiny) were entitled to have long had the service of counsel in the preparation of their defence. This could not happen simply "because they were not being charged of the offence with which they had been suspected of committing. They have come to court to enforce the right of access to their counsel so that they can start preparing their defence. These detainees were simply not being remanded for a trial before a court-martial according to law. This failure to charge them was interpreted to be a stratagem to deny them access to counsel. I doubt if this was deliberate (in the light of what I have said above). Nevertheless it denied the suspected prisoners of a right to counsel at a time they should have had one. It will be observed that Regulation 19 of the Defence Force (Discipline) regulations 1998 is a broad regulation intended for a broad spectrum of disciplinary offences. A m o ng these are included minor offences that may "be investigated without m u ch formality and be summarily disposed of and punished. There are also serious offences such as mutiny which must go before a court-martial. Regulation 19 combines the investigatory functions of the police, the preparatory examination before a magistrate and the decision of the Director of Public prosecution in finally deciding and actually indicting an offender of a serious charge. Where the offence / is relatively m i n or there is no investigation (by w ay of a hearing before a c o m m a n d i ng officer), but rather a s u m m a ry trial in w h i ch no advocate or attorney m ay appear. If the s u m m a ry case leads to a finding of guilt, the officer presiding at this s u m m a ry trial is obliged to advice the accused prisoner to elect to be tried by a court-martial or to h a ve the matter finalised there a nd there. T he accused m ay within 24 h o u rs c h a n ge his m i nd a nd ask that the matter be finalised even w h e re he h ad elected to be tried by a court-martial. See Regulations 23(10) a nd (11). W h e re an accused prisoner elects to be tried by a court-martial, he h as a right to counsel at the court-martial. For serious crimes s u ch as mutiny, there is no r o om for s u m m a ry trial. T he investigatory hearing envisaged in Section 19 is part of evidence collection that e nd with the C o m m a n d i ng Officer w ho c an dismiss charges straight away. This is equivalent to holding an examination hearing akin to the Preparatory Examination in civilian courts. It is on that basis that a final decision on w h e t h er to bring a charge against the prisoner before a court-martial c an be m a d e. In Ireland, w h e re a charge as serious as m u t i ny (which carries a death penalty) is being contemplated, the suspected prisoner w o u ld be entitled to legal representation in the s a me w ay as he w o u ld be before a magistrate in a civilian preparatory examination. See Gerard H u m p h r e ys & Ciaran C r a v en Military L aw in Ireland at page 114 to 115. While this procedure would be desirable for Lesotho lest a feeling develop that the right to life of military personnel is not equally respected as in civilian life, I need not necessarily take a dim view of the Lesotho Defence Force Regulations on this account. I do in this particular case take a serious view of the fact that the investigatory procedure was inadvertently used to deny the detained prisoners (access to their legal represantive) although suspected of a serious offence such as mutiny which carries the death penalty. Presence of counsel during interrogation or investigation Mr. Phoofolo for applicants initially argued that as an attorney, he was entitled to be present and to see that prisoners do not incriminate themselves w h en they were asked questions. I have already said, even in civilian proceedings, the presence of attorney is not that automatic, it is conditional. In defence forces it has to be reconciled with the need to deal with all types of minor and not so serious offences which have to be dealt with summarily, with or without formal procedure. This makes the enforcement of discipline speedy and effective to keep the military machine in a high state of readiness and efficiency. As already shown, the accused can always, at the end of a summary trial, elect to have a court-martial and be legally represented before a court-martial. I think G e r a rd H u m p h r e ys a nd Claran C r a v en h a ve p ut w h at is the position in Lesotho very well at the stage of preliminary investigation of charges w h e re they say: "At this investigation, the c o m m a n d i ng officer is attended by the adjunct a nd the accused is a c c o m p a n i ed by military escorts of military r a nk not lower t h an his o w n. Neither the accused n or the p e r s on preferring the charge(s) is entitled to counsel or representation at this stage. T he witnesses are m a r c h ed in a nd the accused h as the right, a nd is given full opportunity to cross- e x a m i ne those w h o se statements are unfavourable to him... At the conclusion...of the investigation, the accused m a y, by direction of the officer investigating the charge, be released or retained in custody."—Military Law in Ireland at page 1 1 3. At this stage the c o m m a n d i ng officer, according to Gerard H u m p h r e ys a nd Giaran C r a v en (supra) in an informal w a y, is merely trying to decide w h e t h er there is sufficient evidence to justify a charge. If there is not, the c o m m a n d i ng officer h as to dismiss the charge. T he Chief Justice of Ireland f o u nd the prohibition of the right to legal representation at this preliminary stage not to be imperilling a fair hearing to s u ch an extent that it could cause an injustice at a subsequent hearing of the court-martial. See Scariff v Taylor IIR 2 42 ( H C) as quoted in Military Law in Ireland page 113. I have already said (without deciding this point) that in cases w h e re a soldier is facing a capital charge such as mutiny, it would enhance the appearance of fairness to the accused to have the right to "be represented by an attorney or advocate at this investigatory hearing. This could be in the same way as he would be represented in a Preparatory Examination in a civilian court where an accused is charged with a capital offence such as murder. Contempt of Court Mr. Phoofolo had applied for committal to prison of the Commander Lesotho Defence Force on the ground that he had not obeyed the court Order of the 19th October, 1998. The Director of Public Prosecutions told the Court that on the 21st October, 1998, at 4.50 p.m. w h en his attention was drawn to the Court Order, he requested Mr. Phoofolo to go with him to see the detained prisoners to ascertain whether they had been tortured. The DPP was of the view that no access was permitted in terms of the Lesotho Defence Force Act 1996 and its Regulations while they were under detention before they had been formally charged. Mr. Phoofolo for applicants told the court that he saw the prisoners but was not allowed to ask them whether they had been tortured. Mr. Phoofolo's complaint was also that he was not allowed / to consult with the prisoners privately. It will be seen that the Court Order was: "That applicants' husbands be allowed to meet their attorney." It will be observed that the detained prisoners were allowed to meet their attorney albeit under restrictions. If we go by the actual wording of the Court Order, it is arguable whether or not the Order was not obeyed. The Court Order had not specified that the attorney should see them in private. Contempt of court has many categories. The one we are concerned with here is that of wilfully disobeying a Court Order. It is trite law that: "the court will commit a person for contempt of court only w h en his disobedience is due to wilfulness. In Clement v Clement 1961(3) SA 861 at 866 it was held that a person's disobedience must not only be wilful but also mala fide in disobeying it."—Herbstein & Van Winsen The Civil Practice of the Supreme Court in South Africa 4th Edition at page 866. In the case before me, there is no contumacy. If the respondents with the Order as it stood failed to obey the Court Order because they gave it an interpretation which is by no means unreasonable, there is no wilfulness. / It seems, also, if they were satisfied that the court's order granted exparte was wrong and contrary to law, they were obliged bona fide to come before court immediately to show it was wrong. Respondents were before court within 24 hours to make their submissions on this issue. This court on ex parte orders that are given to the prejudice of parties unheard has shown its reluctance to accept that contempt of court has been committed. Easterbrook Transport (Pty) Ltd. v Commissioner of Police & Ors. 1991-96 LLR 141 at page 142. In such cases, the onus of proving absence of wilfulness is on respondents. In H. G. van Zyl v W. L. Mosiane 1991-1996 LLR 1701 respondent succeeded to show that he failed to obey the court order because it had a cloud of uncertainties and ambiguities as to what was required of respondent. I had no difficulty in doubting whether contempt of court had been committed in the circumstances of the case. Mr. Phoofolo insisted on being granted access to the prisoners or detainees even before junior officer understood what was required of them and referred to the Commander Lesotho Defence Force. Had the order such as it was not been granted ex parte, the court might have felt differently. I hold therefore that the application for committal of first respondent / for c o n t e m pt to prison w as premature. O r d er of t he C o u rt I have already said I h a ve c o me to the conclusion that the respondent inadvertently abused the reasonable a nd fair p o w e rs of investigation to deny the rights of prisoners on behalf of w h om this application is brought. T he Director of Public Prosecution s aw this omission a nd undertook to see to it that the C o m m a n d er of the Lesotho Defence Force sets in m o t i on the procedure that will lead to the bringing of the prisoners before a court martial immediately. It is ordered: (a) That the C o m m a n d er of the Lesotho Defence Force is directed to see to it that Gabriel Litile Rantuba, Tholang Lehloba a nd Khoejane M a k h e le are charged with a ny crime with w h i ch they are suspected within 8 days of the date of this j u d g m e nt or be released f r om custody. (b) That the C o m m a n d er of the Lesotho Defence Force is directed to allow Gabriel Litile Rantuba, Tholang Lehloba, a nd Ehoejane Makhele access to an attorney or counsel forthwith to enable t h em to prepare their defence even before the (long over-due) investigatory hearing takes place before h im or his appointee. (c) That First, Second, Third a nd Sixth Respondents p ay the costs of this application. W . C . M. M A Q U TU J U D GE For applicants : M r. E. H. Phoofolo For respondents : M r. G. S. Mdhluli, Director of Public Prosecutions