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06-Nov-2015 06:00 by fatherdoom 7 Comments

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Every person who is charged with a criminal offence in a central or local court shall be permitted to defend himself before the court in person or by a legal representative of his own choice, who shall be a legal practitioner admitted to practice in the courts of Basutoland.In civil proceedings no party may be represented by a legal practitioner, but shall appear himself; provided that the court may permit the husband or wife, or guardian, or any servant, or the master, or any inmate of the household of any plaintiff or defendant, who shall give satisfactory proof that he or she has authority in that behalf, to appear and to act for such plaintiff or the Basotho courts (as the local and central courts are popularly referred to) are courts of law and not domestic tribunals which can deny parties appearing before them legal representation without offending against the Constitution.[8.] The application was opposed in the Court a quo by three parties: by the plaintiff in the damages action before the Maseru local Court, by the President of that Court and by the Attorney-General.

It is unfortunately again necessary to record that delays of this magnitude by litigants - particularly when the outcome is not only important to them but to others - are unacceptable.If the respondent was dilatory in seeking a speedy determination of the final relief, it was incumbent upon the appellant (particularly by virtue of his office and the importance of the issues raised) to enrol the matter for hearing.[4.] The Proclamation gives the minister - defined as the Minister of Motlotlehi's Government for the time being responsible for the administration of this Proclamation' - with the concurrence of the Chief Justice the power by warrant to recognise or establish within the Territory such central and local courts as he shall think fit which shall exercise such jurisdiction and within such limits as may be defined by such warrant' (section 2(1)).A court so recognised or constituted is authorised to exercise civil jurisdiction to the extent set out in its warrant and subject to the provisions of this Proclamation, over causes and matters in which the defendant is ordinarily resident within the area of the jurisdiction of the court, or in which the cause of action shall have arisen within the said area ...', with certain exceptions (sections 6 and 8).Such a court is required to administer the native law and custom prevailing in the territory' (subject to what is traditionally termed a colonial repugnancy clause), the provisions of all rules or orders' made by specified chiefs or headmen, and the provisions of any law which the court is authorised to administer (section 9).[1.] The issue in this appeal is whether section 20 of the Central and Local Courts' Proclamation 1938 (the Proclamation), is inconsistent with section 12(8) of the Constitution of Lesotho 1993 and to the extent of the inconsistency accordingly void.[2.] It has arisen in the following way.The respondent (as applicant before the High Court) is the defendant in proceedings instigated against him in the Maseru local Court.

The cause of action is defamation and the claim is for damages in an amount of M10 000.

At the commencement of the hearing in the local Court on 11 November 1998, the respondent informed the Court that he wished to be legally represented and asked for a postponement of the case in order to engage a legal practitioner.

The application was refused on the grounds that section 20 of the Proclamation did not allow litigants in civil cases a right to legal representation.

The case proceeded (a few witnesses testifying), but was then postponed for further hearing.

During the postponement the respondent instituted an urgent application before the High Court for a declaratory order that section 20 of the Proclamation is inconsistent with section 12(8) of the Constitution of Lesotho and therefore invalid to the extent that it does not permit legal representation in civil proceedings', an order that the proceedings before the local Court be stayed pending the finalisation of the application and related relief.[3.] Although the matter was launched on 26 November 1998, and an interim order granted on 30 November 1998, it was only enrolled for hearing in relation to the final relief sought on 22 and 23 November 2001.

Judgment was handed down with expedition by the High Court (Ramodibedi J) on 12 December 2001.

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