Thabiso Lekitla V Rex (C of A (CRI) 12/2025) [2025] LSCA 75 (7 November 2025)

# Thabiso Lekitla V Rex (C of A (CRI) 12/2025) [2025] LSCA 75 (7 November 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/75/eng@2025-11-07) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/75/eng@2025-11-07) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lsca/2025/75/eng@2025-11-07) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lsca/2025/75/eng@2025-11-07) [ __](mailto:?subject=Take a look at this document from LesLII: Thabiso Lekitla V Rex \(C of A …&body=https://lesotholii.org/akn/ls/judgment/lsca/2025/75/eng@2025-11-07) [ Download PDF (223.7 KB) ](/akn/ls/judgment/lsca/2025/75/eng@2025-11-07/source) Report a problem __ * Share * [ Download PDF (223.7 KB) ](/akn/ls/judgment/lsca/2025/75/eng@2025-11-07/source) * * * * * Report a problem __ ##### Thabiso Lekitla V Rex (C of A (CRI) 12/2025) [2025] LSCA 75 (7 November 2025) Copy citation * __Document detail * __Related documents * __Citations 2 / - Citation Thabiso Lekitla V Rex (C of A (CRI) 12/2025) [2025] LSCA 75 (7 November 2025) Copy Media Neutral Citation [2025] LSCA 75 Copy Hearing date 20 October 2025 Court [Court of Appeal](/judgments/LSCA/) Case number C of A (CRI) 12/2025 Judges [Dr. Mosito P](/judgments/all/?judges=Dr.%20Mosito%20P), [Musonda AJA](/judgments/all/?judges=Musonda%20AJA), [Van der Westhuizen AJA](/judgments/all/?judges=Van%20der%20Westhuizen%20AJA) Judgment date 7 November 2025 Language English Summary ###### Flynote Judicial Recusal — Double-Reasonableness Test — Appearance of Bias — Case Management — Postponement — Judicial Demeanour and Civility. Read full summary * * * Skip to document content ###### Flynote Judicial Recusal — Double-Reasonableness Test — Appearance of Bias — Case Management — Postponement — Judicial Demeanour and Civility. LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CIV) NO. 12/2025 CRI/T/0115/2023 In the matter between: THABISO LEKITLA APPELLANT AND REX RESPONDENT CORAM: MOSITO P MUSONDA AJA VAN DER WESTHUIZEN AJA HEARD: 20 OCTOBER 2025 DELIVERED: 07 NOVEMBER 2025 FLYNOTE Judicial Recusal — Double-Reasonableness Test — Appearance of Bias — Case Management — Postponement — Judicial Demeanour and Civility. An application for recusal of a trial judge must surmount the high constitutional threshold for disqualification. The governing inquiry is whether a fair-minded and properly informed observer, on the correct facts, would reasonably 2 apprehend that the judge will not bring an impartial mind to bear. The presumption of impartiality is strong and not easily displaced; dissatisfaction with judicial rulings, case-management firmness, or robust questioning does not suffice. A refusal to postpone a criminal trial is a paradigmatic exercise of discretion. It does not, without more, bespeak bias, provided the judge applies proper principles, considers fairness to the accused and the public interest in expedition, and refrains from gratuitous disparagement or prejudgment. Where the record discloses conscientious engagement with counsel and subsequent accommodation of a reasonable request for postponement, an apprehension of bias is unsustainable. Judicial impartiality embraces not only freedom from prejudice but also civility in expression. Courtesy is not mere etiquette; it is the discipline of judicial authority. Firm but polite case management reinforces public confidence in the courts, whereas irritation or sarcasm imperils it. The judicial oath demands both even-handedness of mind and courtesy in speech. Held, that the learned judge applied the correct double-reasonableness test, exercised her discretion lawfully, and manifested neither bias nor impropriety in tone or conduct. The presumption of impartiality stands unrebutted. Appeal dismissed. No order as to costs. JUDGMENT MOSITO P Introduction [1] This is an appeal against the refusal by the High Court (Hlaele J) to recuse herself from presiding over the appellant’s pending murder trial. The impugned ruling followed two case-management appearances on 2 and 3 September 2024, at which issues of legal 3 representation and a postponement arose. On 17 September 2024, the learned judge dismissed the recusal application, holding that the double-reasonableness test was not satisfied and that a fair-minded and properly informed observer would not apprehend bias. The present appeal challenges that conclusion on several grounds. [2] The appeal invites us to rehearse first principles. Judicial impartiality is the cornerstone of the judicial system. But so too is the duty of a judge, duly assigned, to sit. The law, therefore, presumes impartiality and sets a high threshold for recusal; appearances, not merely subjective fears, must carry the day, and they must do so on a correct and complete factual footing. Relevant background [3] The appellant was arraigned for murder in December 2020. By mid-2024, trial dates were fixed. On 2 September 2024, counsel then on record indicated, in chambers and thereafter in open court, that they were “not fully instructed”, which, upon inquiry, was explained as non-payment of fees. A postponement was sought. The Crown opposed, relying on trial preparedness, witness logistics and the chronic prejudice caused by criminal delays. After probing the basis of the application, the judge refused a postponement, directed that pro deo assistance be explored, and stood the matter down to the following day. [4] On 3 September 2024, the appellant appeared without counsel and asked, of his own motion, for a two-day indulgence to regularise his fee arrangements. The Crown did not oppose; the judge granted the postponement. On the return day, the 4 appellant’s original counsel re-appeared and intimated a formal application for the judge’s recusal. That application—advanced essentially on assertions that the judge had been impatient, had “expelled” counsel, had made unwarranted references to the appellant’s employment and finances, and had thereby created an appearance of bias—was dismissed in a reasoned judgment. [5] The appellant contends, in substance, that the learned judge: (i) failed to appreciate and apply the proper test for recusal; (ii) overlooked material features of the record; (iii) created, by her questioning and remarks on 2 and 3 September, a perception of prejudgment and hostility; (iv) effectively removed counsel of choice and foisted state-funded representation; and (v) held against the appellant his position as a Member of Parliament as if it proved dilatoriness. The Law [6] The constitutional foundation for judicial impartiality in Lesotho is firmly rooted in section 12(1) of the Constitution, which guarantees to every person charged with a criminal offence the right “to a fair hearing within a reasonable time by an independent and impartial court.” This provision embodies not only the right to substantive fairness but also the appearance of fairness; justice must not only be done but must manifestly be seen to be done. The principle of impartial adjudication thus stands as a corollary of the rule of law itself, for it ensures that the power to determine disputes is exercised without personal interest, prejudice, or predisposition. 5 [7] In Sole v Cullinan NO and Others,1 this Court formulated the guiding test: “The test is whether a reasonable, objective and informed person would, on the correct facts, reasonably apprehend that the judge will not bring an impartial mind to bear on the adjudication of the case.” [8] This test has been consistently applied within our jurisdiction since its introduction.2 The principle has been articulated in comparative jurisprudence as involving a “double reasonableness test,” which requires that the apprehension of bias be both reasonably held and held by a reasonable and well-informed observer whose sole concern is the fair administration of justice. This formulation draws directly from the seminal judgment of the Constitutional Court of South Africa in President of the Republic of South Africa and Others v South African Rugby Football Union and Others (SARFU).3 That decision, followed by South African Commercial Catering and Allied Workers Union v Irvin & Johnson Ltd (Seafoods Division Fish Processing),4 established that not only must the person apprehending bias be reasonable, but the apprehension itself must also be reasonable. The “double reasonableness” standard underscores the presumption of judicial impartiality, which is not easily displaced and must be rebutted by cogent and convincing evidence. 1 Sole v Cullinan NO and Others LAC (2000–2004) 572 at 586E–587A. 2 see Letuka v Minister of Justice and Human Rights and Others (CONSTITUTIONAL CASE 10 of 2010) [[2014] LSHC 45](/akn/ls/judgment/lshc/2014/45); Fako v Director of Public Prosecutions (C of A (CRI) 3 of 2020) [2020]; and Kamoli v Director of Public Prosecutions (CRI/T/0002/2018) [[2022] LSHC 29](/akn/ls/judgment/lshc/2022/29). 3 President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC) at 177B–E. 4 South African Commercial Catering and Allied Workers Union v Irvin & Johnson Ltd (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC) at 713. 6 [9] In Helow v Secretary of State for the Home Department5, Lord Hope famously personified the fair-minded and informed observer, describing her as “not unduly sensitive or suspicious… but informed and balanced, knowing that fairness requires a judge to be, and to be seen to be, impartial.” That articulation mirrors the Canadian and Australian line of authority culminating in Re JRL: Ex parte CJL,6 where Mason J cautioned that while “it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought more likely to decide in their favour.” [10] Within Lesotho’s constitutional framework, these principles harmonise with section 2 of the Constitution, which entrenches the supremacy of the rule of law, and section 118(2), which vests judicial power in independent courts bound only by the Constitution and the law. The constitutional requirement of impartiality, therefore, commands not merely subjective neutrality but an objective appearance of fairness, measurable by what a reasonable and informed observer would perceive. [11] Consequently, an allegation of bias cannot be founded on mere dissatisfaction with a judge’s ruling, the tone of questioning, or the refusal of an indulgence such as a postponement. As this Court reaffirmed in Director of Public Prosecutions v Kamoli, 7judicial firmness, even robust intervention, does not equate to prejudice. 5 Helow v Secretary of State for the Home Department [2008] UKHL 62 at paras 2–3. 6 Re JRL: Ex parte CJL (1986) 161 CLR 342 at 352. 7 Director of Public Prosecutions v Kamoli (C of A (CRI) No. 2 of 2022. 7 Judges are not “silent umpires,” to borrow from S v Basson8 ; they are required to engage with counsel to ensure that proceedings remain fair, efficient, and in compliance with the accused’s constitutional rights. [12] In sum, the law presumes impartiality. To rebut that presumption, the applicant must demonstrate, by reference to facts and not conjecture, that a fair-minded and informed observer would reasonably apprehend a lack of impartiality. The inquiry, therefore, is a legal, objective one—anchored in the Constitution, guided by the Sole v Cullinan and SARFU principles, refined in Helow and always measured against the judicial oath to “administer justice without fear or favour, affection or ill-will.” [13] A refusal to postpone is a paradigmatic exercise of discretion. It will not lightly bespeak bias. The inquiry is whether the judge applied proper principles, considered relevant factors (including fairness to the accused and the public interest in expeditious criminal trials), and avoided gratuitous disparagement or prejudgment. Consideration of the Appeal [14] Two matters are dispositive at the threshold. First, the record plainly discloses that the sole articulated ground for the first-day postponement was non-payment of fees. Counsel had, only days earlier, filed opening statements—a fact inconsistent with a lack of preparation. In those circumstances, the learned trial judge was 8 S v Basson 2005 (12) BCLR 1192 (CC); para 39. 8 both entitled and obliged to inquire into whether the lateness and basis of the application were bona fide and compatible with the orderly administration of criminal justice. This is consistent with the observation in Psychological Society of South Africa v Qwelane and Others9, that postponements “are not merely for the taking” and must be properly motivated. Secondly, the following day the appellant personally sought, and without opposition obtained, a short postponement to settle his fees; his original counsel thereafter resumed representation. The suggestion that the judge “expelled” counsel or “foisted” representation is contradicted by the sequence of events and, applying the standard in Sole v Cullinan (supra)10, would not cause a reasonable, informed observer to apprehend bias on the correct facts. [15] The complaint centres on the judge’s pressing of counsel about fees and timing, and her reference, the following day, to the appellant’s employment and public position when testing whether the fee difficulty was genuine or remediable. A fair-minded and informed observer, as described by Lord Hope in Helow v Secretary of State for the Home Department11 would view these exchanges as firm yet legitimate case-management, not hostility. In Helow v Secretary of State for the Home Department (supra), Lord Hope portrayed the fair-minded and informed observer as a judicial construct endowed with qualities of character. He explained that this observer, like the reasonable person of negligence law, is a fictional but indispensable figure within the legal landscape— 9 Psychological Society of South Africa v Qwelane and Others 2017 (8) BCLR 1039 (CC) at par 31. 10 Sole v Cullinan LAC (2000-2004) 572 at 586E–587A 11 Helow v Secretary of State for the Home Department [2008] UKHL 62 at paras 2–3. 9 objective, gender-neutral, and endowed with a sense of balance and restraint that many might find difficult to emulate. Such an observer, Lord Hope said, is fair-minded in the true sense of the term: she withholds judgment until both sides of an argument have been fully presented and understood. She is not hypersensitive or unduly suspicious, nor does she confuse her standpoint with that of a complainant. Her detachment is safeguarded by the “real possibility” test, which requires that any apprehension of bias be objectively justified. Yet she is not complacent. Conscious that judges are human and may be influenced by their words, actions, or associations, she will not hesitate—where objectively warranted—to conclude that such circumstances may impair impartiality. Equally important, Lord Hope continued, the observer is informed. Before forming a view, she seeks to understand the relevant facts, context, and nuances. She is the sort of person who reads beyond headlines, situating what she learns within its proper social, political, or geographical framework. Her fairness derives not merely from balance, but from understanding that context is integral to sound judgment. [16] Judges are not “silent umpires” but active guardians of fairness and expedition (S v Basson.12 The conduct complained of was directed to the coexistence of two constitutional imperatives under section 12(1) of the Constitution—the right of an accused to a fair trial (embracing adequate time, facilities, and representation 12 CCT 30/03A) [[2005] ZACC 10](/akn/za/judgment/zacc/2005/10) at para 39. 10 of choice) and the right of the public, victims and accused alike to trial without unreasonable delay.13 [17] Nothing in the record suggests that the judge closed her mind to persuasion or predetermined any issue. As emphasised in Re JRL: Ex parte CJL,14 judicial officers must not too readily accede to allegations of bias lest they encourage parties to believe they can select their tribunal. Here, having refused a postponement founded solely on non-payment, the judge the next day acceded to the appellant’s own request for forty-eight hours—recording the Crown’s non-opposition. Such conduct evidences an open and impartial mind, the very antithesis of prejudgment as contemplated in President v SARFU (supra). [18] References to the appellant’s employment and means were not extraneous; they arose naturally from the ground asserted—inability or failure to pay counsel. To test the bona fides and practicality of that ground was not only legitimate but necessary, consonant with the duty of a judge to probe the authenticity of last-minute requests.15 The law does not immunise a litigant’s chosen method of payment from judicial inquiry when invoked as the reason a criminal trial, long scheduled, cannot proceed. Applying the test in South African Commercial Catering and Allied Workers Union v Irvin & Johnson Ltd,16 the reasonable observer, 13 Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC) at para 24 14 Re JRL: Ex parte CJL (1986) 161 CLR 342 at 352. 15 R v Saule 2009 (1) SACR 196 (E). 16 South African Commercial Catering and Allied Workers Union v Irvin & Johnson Ltd 2000 (3) SA 705 (CC) at 713. 11 apprised of these facts, would not regard such questions as manifestations of bias. [19] The right to counsel of choice, protected under section 12(2)(d) of the Constitution, is weighty but not absolute. As held in Paweni & Another v Acting Attorney-General,17 that right does not entitle an accused to indefinite adjournments until a preferred lawyer is available or remunerated. Nor does the judge’s inquiry into possible pro deo representation—prompted by the very claim of non-payment—offend the right. Indeed, it advances the constitutional guarantee that trials proceed within a reasonable time (Sanderson, supra). The later grant of the requested forty-eight-hour indulgence and the return of original counsel demonstrate fairness in action, not the removal of counsel of choice. [20] As to tone and language, this Court reiterates that judicial speech must reflect restraint, for “justice must not only be done but must be seen to be done” (Sole v Cullinan, supra, at 587A). Bearing the above in mind, it is worth recording that politeness and civility are not ornaments of judicial demeanour; they are its discipline. The authority of the court derives not from volume or vehemence, but from the quiet confidence of reasoned restraint. Every judge, however pressed by time or provocation, must remember that the parties, counsel, and witnesses stand before the court in circumstances that may be anxious, personal, or even humiliating. The words of the bench can therefore wound or heal. 17 Paweni & Another v Acting Attorney-General 1985 (3) 720 (ZSC). 12 Judicial rebuke, when necessary, should be measured, impersonal, and directed to conduct, never to character. [21] Civility sustains public confidence in the courts. It assures litigants that, even when their case fails, they have been heard with respect and treated with fairness. The judicial oath requires not only impartiality of mind but also courtesy in its outward expression. A judge who is firm but unfailingly courteous commands the obedience of law; one who descends into irritation or sarcasm risks impairing it. [22] It follows that discretion, however lawfully exercised, must also be courteously expressed. The strength of the judiciary lies not in its power to compel, but in the moral authority of its conduct. To the young judicial officer, the lesson is simple but enduring: reason firmly, speak gently, and let the record reflect not temper but justice. [23] Having examined the transcript, we find firmness but no hostility—impatience with unexplained delay, not animus against the person. The fair-minded and informed observer envisaged in Helow, possessing a working knowledge of the realities of criminal list management, would not reasonably apprehend bias in such forthright questioning. We shall revert to the importance of judicial politeness and civility later in this judgment. [24] Appellate interference with a refusal to recuse is warranted only where a wrong principle is applied, material facts are overlooked, or the conclusion is one a reasonable court could not reach. This mirrors the standard expressed in South African 13 Commercial Catering and Allied Workers Union v Irvin & Johnson (supra) and endorsed in our jurisdiction in Fako v DPP (supra). The learned judge below directed herself explicitly to the double-reasonableness test, analysed the record meticulously, and measured the appellant’s allegations against the evidentiary threshold described in Helow and SARFU. Her conclusion was accordingly open to her and unimpeachable. [25] The individual grounds of appeal collapse under this analysis. The contention that the judge misapplied the test is untenable; she applied the correct legal standard rooted in Sole v Cullinan and SARFU. The complaint that she failed to consider all “numerous” grounds is unavailing; her judgment addressed each material contention—the refusal of postponement, the exchanges with counsel, the alleged “expulsion” of counsel, and the reference to employment. The suggestion that she should have elicited from counsel how long a postponement was sought is immaterial, for the duty to articulate that lay with the applicant; and, tellingly, the following day the appellant himself obtained the precise indulgence of forty-eight hours he now says would have sufficed. The assertion that the judge “foisted” representation or made adverse personal findings is contradicted by the record and by the constitutional duty, under section 12(1), to ensure representation. Her reference to the appellant’s parliamentary status was contextual, not punitive, and a reasonable observer—in the sense articulated by Cameron AJ in Irvin & Johnson (supra)—would not perceive bias in that exchange. 14 [26] In sum, measured against the constitutional guarantees of impartial adjudication and the double-reasonableness test articulated across the Commonwealth, the learned judge’s conduct fell well within the bounds of judicial propriety. Her inquiries were principled, her rulings balanced, and her tone restrained. The presumption of impartiality stands unrebutted, and no fair-minded and informed observer, apprised of the full context, could reasonably apprehend bias. Disposion [27] Standing back, the case does not clear the high bar for recusal. The presumption of impartiality is unrebutted. A fair-minded and properly informed observer, apprised of the whole sequence—robust scrutiny of a last-minute fee-based postponement, an initial refusal, a short indulgence granted the next day at the appellant’s own request, and an invitation to secure representation consistent with trial readiness—would not reasonably apprehend bias. The appeal must therefore fail. Given the criminal context and the interlocutory character of the ruling, we make no order as to costs. Order [28] In the result: [a] The appeal is dismissed. [b] There is no order as to costs. [c] The matter is remitted to the High Court to proceed to trial before Hlaele J on dates to be fixed with due expedition. 15 ______________________________ K.E. MOSITO PRESIDENT OF THE COURT OF APPEAL I agree: _____________________________ P MUSONDA ACTING JUSTICE OF APPEAL I agree: _____________________ J VAN DER WETHUIZEN ACTING JUSTICE OF APPEAL FOR APPELLANT: ADV M E TEELE with ADV L D MOLAPO FOR RESPONDENT: ADV L M MOFILIKOANE #### __Related documents ▲ To the top >