Here’s something I rarely say: this was an electrifying judgment.
That’s probably because I’m a South African who spends much of my life reading court decisions. Like many other court-watchers I’ve devoted a significant amount of time to a myriad decisions on challenges brought by SA’s former President, Jacob Zuma; challenges that are ultimately attempts to derail the corruption trial long pending against him.
Over decades he has repeatedly approached the courts challenging virtually any decision made in his case including, multiple times, the Supreme Court of Appeal and SA’s apex Constitutional Court. To the frustration and growing cynicism of many, the result of this strategy is that his trial has yet to start.
Dodge gets short shrift in Lesotho
But here, in this new decision by the High Court of Lesotho sitting as a Constitutional Court, a similar dodge is given short shrift. And it comes as a relief to see such a firm judicial approach, right down to its extremely serious consequences for counsel in the case.
Of course, constitutional provisions in SA and Lesotho are not identical, and the argument, much less the outcome, in one jurisdiction can’t simply be replicated in the other. But still, it’s quite something to read a decision in which the judges indicate so clearly that they won’t put up with nonsense like this any longer.
The case was brought by Tsebiso Sebehela and three others facing prosecution. They said their constitutionally guaranteed fair trial rights were infringed because of the way evidence in the case was being handled, so they wanted the Constitutional Court to intervene and permanently stop the proceedings.
The Director of Public Prosecutions and the other respondents objected, saying it was too early in the process to ask for this court’s intervention on constitutional grounds and in any case the correct forum to raise the problems alleged in the case was the trial court. They said the application was actually trying to circumvent established criminal procedure by resorting to constitutional litigation even though ‘adequate and appropriate remedies remain available within the trial framework.’
‘Regrettable’ , ‘recurrent’ issue
At this point, the court makes a ‘preliminary observation’, remarks that indicate where matters are headed. The case raised an issue ‘that has, regrettably, become recurrent in this jurisdiction’, said the judges, namely the ‘invocation of constitutional jurisdiction to pre-empt criminal trials on grounds that are properly evidentiary.’ They added: ‘This court has repeatedly cautioned against such practice.’
Then they highlight the constitutional provisions on which such a claim could be made, but point out that the constitution allows the High Court to ‘decline to exercise its powers’ when it’s satisfied that other, suitable, ways of dealing with such an issue, are available. In other words, there’s a ‘deliberate constitutional choice’ in Lesotho that when ordinary legal processes are adequate, that’s the route to take.
Moreover, said the judges, the court has consistently interpreted this section as ‘imposing a discipline’ on invoking constitutional jurisdiction, ‘particularly in the context of pending or imminent criminal proceedings’. This approach – challenging prosecutorial decisions and evidentiary foundations prior to trial – had been tried in several previous cases, including at least one involving ‘the same counsel’ as in the present case. Each time the court has firmly rejected such an approach, holding that a collateral challenge required ‘exceptional circumstances’, and emphasising the underlying policy rationale: ‘allowing litigants to bypass the criminal process undermines the integrity and orderly functioning of the justice system.’
Thus, said the judges, the High Court’s constitutional jurisdiction isn’t a ‘parallel forum’ to decide issues that are properly part of the trial process.
Dressing a dispute on evidence in constitutional clothing
They noted that this approach was also approved by the apex Court of Appeal, where the judges said much along the same lines, including – and this is a sentence that rings in the ears of anyone watching the Zuma cases – that if an accused person could delay the start of a trial by launching civil proceedings, ‘criminal trials would suffer unwarranted disruption and delays’.
In this case, the question was whether the applicants’ concerns about evidence could be addressed within the criminal trial. ‘If they can … then this court must decline to intervene.’
Here, the applicants had ‘dressed what is essentially a dispute about … evidence, in constitutional clothing’, something discouraged by the courts ‘in clear and repeated terms’.
‘An attempt to avoid trial’
The applicants hadn’t shown that the trial court was unable to protect their fair trial rights, nor that their allegations about evidence and dockets couldn’t be raised and dealt with by that court. Problems about evidence were exactly the kind of matter that the trial process was designed to test. And, among other remedies, that court could discharge the accused if the prosecution couldn’t establish a case, or acquit the accused if guilt wasn’t proved beyond reasonable doubt.
‘The trial court is not a lesser forum for purposes of fair trial protection. It is the primary forum,’ the court said.
The application had to be seen against the apex court’s warning that accused persons couldn’t be allowed to delay criminal trials ‘merely by launching civil proceedings’ that claimed their constitutional rights were in jeopardy. And what emerged from the founding papers was not a problem about the right to be tried ‘but an attempt to avoid trial by challenging matters which may properly be raised at trial.’
Inevitably, this meant the application was dismissed. But there was more: the question of costs in relation to counsel.
‘Abuse of constitutional process’
In constitutional litigation, courts often decided not to award costs against the losing party, said the judges. But that practice didn’t ‘shield legal practitioners from the consequences of reckless, negligent, abusive or plainly untenable litigation conduct’.
There was a distinction between an unsuccessful constitutional claim and ‘an abuse of constitutional process’. While judges might be sympathetic to the former, they would disapprove the latter ‘especially where settled authority is ignored’ and the case effectively wastes the court’s time.
When the judges here asked counsel to distinguish this case from others that went against his approach, he ‘did not do so’. Likewise, when the judges asked him to address them on why a personal costs order shouldn’t be made against him, he also ‘chose not to address the court on that issue’.
He was given a chance to make the case, but didn’t take it, even though the application was ‘aggravated’ by the fact that the governing jurisprudence wasn’t ‘obscure, remote or newly discovered’. It was all clearly spelled out in earlier cases that were directly relevant and not distinguishable in any material respect.
‘Don’t use constitutional litigation to derail prosecution’
As well as their duty to clients, legal practitioners had an independent duty to the court and the administration of justice, to ‘advise clients against untenable proceedings, to confront adverse authority candidly and to desist from using constitutional litigation as a device to delay, fragment or derail criminal proceedings.’
Courts had to ‘speak clearly’: when a legal practitioner persisted with collateral constitutional challenges despite undistinguishable binding authority, and also ‘declines to address the court on personal costs’, that lawyer acted ‘at least with gross negligence’. It went beyond mere error of judgment, reflecting a ‘reckless disregard of settled jurisprudence and an abuse of this court’s constitutional process.’
A personal costs order, de bonis propriis, wasn’t intended to punish counsel for losing a case, but rather to protect the integrity of the judicial process, to vindicate the court’s authority and to make sure that litigants and legal practitioners didn’t cause unnecessary costs to opponents via cases that were ‘plainly untenable’. It also allowed the court to show displeasure if a practitioner’s conduct fell below the expected standard.
It was a serious step, reserved for cases where the conduct of a practitioner was sufficiently ‘unreasonable, negligent, reckless or abusive’ not to follow the normal rule. And here, the threshold had been met.
Lawyer’s harsh personal costs order a warning to others
It would be unjust for the applicants to carry the costs on their own, said the court. Fairness to them and to the integrity of the court’s processes as well as the ‘need to discourage repetitive collateral challenges’ to criminal proceedings, all justified a personal costs order against counsel.
This was tough stuff, yet the court went even further, awarding costs on the harshest scale (as between attorney and own client).
There could of course be an appeal to the apex court, which might have mercy on counsel and reduce the costs burden. But the chances of the substantive decision being overturned would seem to be nil.
It’s a sobering judgment for practitioners in Lesotho, for who would now risk such litigation? And, luckily for justice in that country, it seems the courts there might now have finally stopped cases ‘dressed up’ as protecting constitutional rights, but actually intended to frustrate and halt prosecution.
* Written on 24 May 2026