Ntaote v Director of Public Prosecutions (C of A (CRI) 6 of 8) [2008] LSCA 27 (17 October 2008)

C OF A CRI ( ) 6/08 IN THE COURT OF APPEAL OF LESOTHO In the matter between : MOTSOTUOA BERNARD NTAOTE Appellant and THE DIRECTOR OF PUBLIC PROSECUTIONS Respondent CORAM : SMALBERGER JA , MELUNSKY JA , PEETE JA , HEARD DELIVERED : : OCTOBER 2008 OCTOBER 2008 Summary Criminal Law – procedure – application brought in High Court pending the commencement of trial . ) – Disputes of fact not capable of resolution in favour of applicant appellant nevertheless contending that facts should be appellant ( decided in his favour as he had unsuccessfully applied in the Court a quo such for oral evidence to be led to resolve disputed issues contention incorrect – . Further preliminary or collateral applications of this nature not to , all factual issues where relevant could properly be be resorted to – dealt with at trial . Moreover prejudice allegedly suffered by appellant must be trial - related and not fanciful or speculative in nature . Application correctly refused in Court a quo. dismissed . Appeal accordingly JUDGMENT MELUNSKY JA , [1] The appellant a Deputy Commissioner in the Lesotho , Mounted Police Service “the LMPS” ( and a certain ) Mamahlohonolo Peko “Ms Peko” ( a financial controller in ), the LMPS were charged with two counts of fraud In short , . , each count related to an alleged misrepresentation by the appellant and Ms Peko to the effect that the appellant and other officers were entitled to the full per diem rate for undertaking two separate journeys to attend official functions that to the knowledge of the appellant and Ms ; Peko the appellant and the other officers were in each , , case entitled to only one quarter of the per diem rate that , ; as a result of the alleged misrepresentations Treasury officials were induced to pay excessive per diem costs , resulting in actual or potential prejudice to the Treasury Department and that on each occasion the appellant and Ms ; Peko acted in concert alternatively Ms Peko acted on the , , instructions of the appellant . [2] The trial of the two accused persons was due to commence in the High Court on September 2007. Before 4 the commencement of the proceedings , counsel for the Crown Adv Griffiths SC withdrew the charges against Ms ( ) Peko and indicated his intention to call her as a witness for the prosecution This resulted in a postponement of the trial . as Adv Mda who appeared for the appellant intimated that , , his client intended to make application for a stay of proceedings alternatively for an order that Ms Peko be , , barred from giving evidence . The application was duly launched in the High Court by notice of motion on 21 September 2007 in which the following relief was sought : )“a An order declaring unlawful the consultation between Mamahlohonolo Peko and the member s of the Directorate on Corruption and Economic Offences and or officers subordinate to the Respondent without the consent of her lawyer after the former was formally charged with two , counts of fraud . ( ) / )b An order declaring that the turning of Mamahlohonolo Peko into a State accomplice witness constitutes a violation of of the Applicant’s fair trial right in terms of section 12(1) ) ( Constitution of Lesotho . )c )i An order directing that CRI T / /34/07 [ the criminal trial ] be permanently stayed . ALTERNATIVELY : )ii In the event of the Honourable Court not granting the i above an order restraining relief sought ( ) ( ) in c Mamahlohonolo Peko to testify as a crown witness . )d That Applicant be granted further and or alternative relief as this Honourable Court may deem just ” . / [3] The application which was opposed by the Director of Public Prosecutions the DPP came before Mofolo J whose ), ( decision was largely but not entirely based on the , , following that the decision to withdraw the charge against : a co accused and to call the person as a witness was a - matter solely within the discretion of the DPP and that the ; Court was not empowered to order a stay of proceedings . The learned judge accordingly dismissed the application It . is against that decision that the appellant now appeals to this Court . [4] The affidavits in the application reveal substantial disputes of fact These fall into two main categories which I . will deal with as economically as possible . The first is whether and to what extent , there was active co operation - , and consultations between the appellant and his counsel on the one hand and Ms Peko and her attorney Mr Mokaloba , , . on the other during the pre trial preparations The appellant . - avers that his counsel and Mr Mokaloba had a preliminary . discussion which revealed that there was no conflict of interest in their “defence strategies” , that both accused alleged that they were innocent and that the legal representatives agreed to co operate in preparing for trial . - It is also alleged that on two subsequent occasions the two , accused and their legal representatives met together , that they “evolved a common defence strategy” and that each accused agreed to be called as a defence witness in support of the other . The appellant contends , too that further , consultations he had with his counsel were based upon the common line of defence that had been discussed at the joint consultations . [5] Ms Peko states in her affidavit that she did not consult even with Mr Mokaloba much less with the appellant’s , . counsel , in preparing for trial that she attended no joint ; consultations ; and that she gave no authorisation or instruction for her attorney to attend meetings with the appellant’s counsel on her behalf . [6] The second area of dispute revolves around the appellant’s averment that prosecution officials consulted with Ms Peko before the date on which the trial was due to commence without the knowledge or consent of her attorney or of the defence counsel ( ). The response to this , by Ms Peko and supported by the law enforcement officers , is that Mr Mokaloba was kept fully informed of the Crown’s . intention to consult with and to call Ms Peko as a witness and that he had no objection whatsoever to these proposals . Ms Peko it might be added was willing to be called as a , , Crown witness and she had volunteered this information to the investigating officer when she was charged . The appellant does not suggest that the disputes are not real or genuine . [7] In the application and also on appeal to this Court two , , main submissions were raised The first is that the decision . of the DPP to withdraw the charges against Ms Peko and to call her as a prosecution witness in the pending criminal litigation will lead to an infringement of the appellant’s legal professional privilege The second is that it was a breach of . professional ethics for the Chief Investigation Officer attached to the Directorate on Corruption and Economic Offences “the DCEO” to consult with Ms Peko without the ( ) consent of her attorney . [8] Before we can even consider whether the appellant’s aforesaid submissions would entitle him to relief in law we , would have to accept his version of the facts On the record . as it stands however we are unable to resolve the disputes , , in the appellant’s favour by applying the well known tests , - laid down in Plascon Evans Ltd - v van Riebeeck Paints ) Pty Ltd 1984 (3) ( SA 622 ( A at ) H C 634 -635 . Counsel for the appellant submitted however that in view of the fact that in , , the Court a quo the appellant had applied for oral evidence to be led to resolve the disputes his version of the facts , should be accepted Authority for this proposition counsel . , informed us is in fact to be found in the , Plascon Evans - case . Counsel’s submission is incorrect What Corbett JA . did hold in that matter was that the court could proceed on the basis of the correctness of the applicant’s factual averments where it is satisfied as to their inherent credibility , where the denial of the respondent does not raise a real , genuine or bonafide dispute of fact and the respondent has not availed himself of the right to apply for the applicant’s deponents to be cross examined at ( H 634 – 635 C In the ). Court a quo the appellant’s application for oral evidence to be led was not granted and was not even referred to by the , learned judge a quo. Although counsel did not appear to press this application on appeal it is quite clear to me that , this is not a case in which oral evidence should have been resorted to . Indeed as I shall point out presently the , , application itself was ill conceived All that needs to be said - . now however is that as a real dispute of facts exists , , and – this as I have mentioned was not disputed by the appellant , , the relief cannot be granted as the facts stated by the – appellant together with those admitted by the respondent , do not justify such an order . [9] There are other grounds why the application cannot succeed . The present application pending a criminal , prosecution is not only to be discouraged , It is not to be . resorted to unless exceptional circumstances are present . See in this regard ( , , Fath and Another v The Minister of Justice of the Kingdom of Lesotho and Another ( C of A CIV ( ) 15/2005) and the authorities quoted therein at par [37] and especially at par [38] and for the most recent decision , The Director of Public Prosecutions and Another v Lesupi and Another ( C of A CRI ( ) 7/2008) at par [18]). All of the issues raised in the application are matters which if at , all relevant should be dealt with in the criminal , litigation . No exceptional factors or circumstances warrant the Court’s consideration of these issues at a preliminary hearing On . the contrary it would be far more appropriate for them to be dealt with at the trial if the Court considers them to be , pertinent and germane to the issues before it . For this reason the application was fatally flawed and the question of the disputed factual matters does not even arise . [10] Moreover and in the circumstances of this case it is , , untenable that the Court should now investigate the appellant’s claim that he will allegedly suffer prejudice should the hearing proceed and should Ms Peko give evidence as a prosecution witness . In Key v Attorney - General Cape of Good Hope Provincial Division 1996 , (4) SA 187 ( CC at ) 195-6, par [13] Kriegler J enunciated that while an accused person must be given a fair trial fairness is , an issue which has to be decided upon the facts of each case . It follows of course that prejudice that an accused , , might suffer should generally be decided upon the facts at the trial . Such prejudice must be trial related and not - fanciful or speculative see ( S v The Attorney General of - the Western Cape; S v The Regional Magistrate , Wynberg and Another 1999 (2) SACR 13 ( C at ) 25-26). Although there are cases in which the prejudice might be unrelated to the trial see ( Director of Public Prosecutions and Another v Lebona (1995-1999) LAC 474 at G 497 -498 C this is not one of them The claim of ), . prejudice relied upon by the appellant is purely conjectural and may not arise at all In the main it is based on the , . legal principle which is in dispute in the application that the , , communications allegedly made to Ms Peko by the appellant . and his counsel are privileged But Ms Peko denied that any . such information was ever communicated to her . The notional existence of possible prejudice to an accused does not entitle him to institute a preliminary application of the kind now before us . [11] It follows that the application was properly dismissed by the High Court and that the appeal cannot succeed We . find it appropriate to point out however , that nothing , contained in this judgment should be construed to mean that this Court either accepts or disagrees with the legal issues raised , in particular , whether the alleged communications to Ms Peko are privileged or not . In view of our conclusion on the grounds already formulated it is , unnecessary for us to consider the specific legal points . [12] In the result the appeal is dismissed . ___________________ L S MELUNSKY JUSTICE OF APPEAL I agree : ____________________ J W SMALBERGER JUSTICE OF APPEAL I agree : ____________________ S N PEETE JUSTICE OF APPEAL For the Appellant : For the Respondent : Adv Z Mda . Adv G T Leppan . .