R V Temeki Ts'olo & Ano. (CRI/T/0009/2024) [2025] LSHC 258 (11 November 2025)

**IN THE HIGH COURT OF LESOTHO** **CRI/T/0009/2024** **Held in Maseru** In the matter between **REX CROWN** AND **TEMEKI PHOENIX TŠOLO ACCUSED 1** **ROBERT FRAZER ACCUSED 2** _Neutral Citation_ : Rex v Temeko Phoenix Tšolo and Another [[2025] LSHC 289](/akn/ls/judgment/lshc/2025/289) CRIM (11th November 2025) **CORAM** : T.J. MOKOKO J **HEARD** : 18/08/2025 **DELIVERED** : 11/11/2025 **_SUMMARY_** _The accused was charged with contravention of the Penal Code Act,2010, in that the accused caused the government of Lesotho prejudice to the value of M850 million. On the two scheduled trial dates, the Crown sought a postponement and thus failed to prosecute the case._ The last postponement also affected the scheduled dates from 15 to 19 September 2025._The Crown failed to show good cause and bona fide for seeking the postponement of the case. The Crown as dominis litis had never been ready to prosecute the matter, while the defence had always been ready to proceed with the trial. The court, on the second occasion, refused to postpone the matter and granted a permanent stay of proceedings against the accused._ **__ANNOTATIONS__** **__CITED CASES__** **_LESOTHO_** _Director of Public Prosecutions and Another v. Lebona LAC (1995-1999) 474_ _Khetsi v. Director of Public Prosecutions and Others CRI/T/0079/2014_ _Ketisi v. Director of Public Prosecutions LAC (2005-2006) 503_ _Mamphono Khaketla v Director of Public Prosecutions_ CRI/T/0098/2017 [[2022] LSHC 121](/akn/ls/judgment/lshc/2022/121) _Rex v. Tumelo Moseme and Others_(No.2) (CRI/T/02/2012) [[2020] LSHC 9](/akn/ls/judgment/lshc/2020/9) _Sankatana Masupha v. Regins 1963-66 H.C.T.L.R 102,104_ **_SOUTH AFRICA_** _Myburgh Transoport v. Botha t/a SA Truck Bodies 1991 (3) SA 310 (Nm), 314-315_ _S v. Dzukuda and Others_ _2000 (4) SA 1078_ (CC) _S v. Tshilo 2000 (4) SA 1078_ **_UNITED STATES_** _Barker v Wingo 407 U.S 514 (1972)_ _Strunk v. United States 412 US 434 (1973)_ __S**TATUTES**__ _Criminal Procedure and Evidence Act 1981_ _High Court Directive No.1 of 30 June 2005_ _Lesotho Constitution_ _Penal Code Act 2010_ _Prevention of Corruption and Economic Offences_ _Speedy Court Trials[Act No. 9 of 2002](/akn/ls/act/2002/9)_ **JUDGMENT** **INTRODUCTION** [1] In count 1, the accused is charged with contravening _section 68(1) of the Penal Code Act 2010, read with section 26(1) of the Code_. In that between 2017 and 2019, the accused did with common intent to cause the Government of Lesotho to act to its prejudice, make a false representation that the Government of Lesotho ( duly represented by said Ts’olo Temeki accused NO.1) and Frazer Solar Pty Ltd, accused No. 3 ( duly represented by Robert Frazer accused No. 2 ) concluded a contract for supply of solar energy products to value of M855 million when to the knowledge of both Accused No.1 and Accused No. 2, the government had neither approved the contract nor authorized accused No. 1 Temeki Tsolo to conclude the contract on its behalf thereby causing the government prejudice the value of M855 million. [2] In count 2, the accused is charged with contravening _Section 10 of the Penal Code Act 2010, read with Section 26(1) of the Code_. In that between the years 2017 and 2019, accused No.1 and No.2 recklessly alternatively negligently appended their signatures to an agreement purportedly entered between the Government of Lesotho and Accused No.2 in consequence of which the Government of Lesotho was caused to incur costs and revenue losses in the amount of M855 million, when the said accused knew, alternatively ought to have known that the said contract was invalid and that there was a likelihood that the representations made on the contract could prejudice or result in prejudice to the Government of Lesotho. [3] In count 3, the accused was charged with contravening _Section 87(2) of the Penal Code, read in conjunction with Section 26(1) of the Penal Code_. In that between the years 2017 and 2019, accused No. 1 and No.2 recklessly alternatively negligently appended their signatures to an agreement purportedly entered between the Government of Lesotho and Accused No.3 in consequence of which the Government of Lesotho was caused to incur costs and revenue losses in the amount of M855 million when the said accused knew, alternatively ought to have known that the said contract was invalid and there was a likelihood that the representations made on the contract could prejudice or result in prejudice to the Government of Lesotho. [4] In count 4, the accused was charged with contravening section 18 of the Penal Code 2010. In that between the years 2017 and 2019, accused No.1 did order one ‘Masentle Ntobaki and Hlophe Matla, being persons over whom he had authority, to append their respective signatures as witnesses to an invalid contract purportedly entered between the Government of Lesotho and Frazer Solar (Pty) Ltd when the orders were manifestly illegal on account of the invalidity of the contract. **THE GENESIS OF THIS MATTER** [5] On **24 September 2024** , Adv. Shakhane, the Crown Counsel, appeared before the court, and the accused (Temeki Tsolo) was before the Court. The court directed the Crown Counsel and the accused to appear before the Court on **02 October 2024** for a Pre-Trial Planning Session (PTPS). The court further directed the accused to appear together with his legal representative on the said date. [6] On **02 October 2024** , Adv. Naidoo assisted by Adv. Shakhane appeared before the court, but the accused was not present. Consequently, the Crown applied for a warrant of arrest against the accused, and the Court duly granted it. Be that as it may, at approximately 12:30 pm, the Crown informed the Court that the accused was present, and the court immediately reconvened. The accused appeared before the court and was given an opportunity to explain why he had failed to appear earlier. The accused explained that he had a medical check-up that morning, which was why he was late. Adv. Shakhane, the Crown Counsel, indicated that he was not opposed to the warrant of arrest against the accused being cancelled. The Court, having heard both the accused and the Crown Counsel, was satisfied that the accused’s absence was not wilful; therefore, the court cancelled the warrant of arrest against the accused. [7] The Court inquired from the accused about his legal representation in this matter. The accused stated that he could not afford a private lawyer due to his financial constraints, and that his application for pro deo Counsel to the Office of the Registrar had not been approved, on the grounds that he was not eligible for _pro deo_ Counsel because he was not facing a murder charge. Consequently, the Court advised the accused to approach the office of the Chief Legal Aid Counsel for assistance, and to report back to the Court about his application to the office of Legal Aid on **17 October 2024.** [8] On **17 October 2024** , Adv. Masoabi from the office of the Chief Legal Aid Counsel appeared before the Court on behalf of the accused, and Adv. Shakhane appeared for the Crown. Adv. Shakhane informed the Court that witnesses’ statements were being prepared and would be served on the defence Counsel on the same day, **17 October 2024,** before 12:00 pm. The matter was then stood down to 2:30 pm for the Pre-Trial Planning Session [PTPS]. [9] On **17 October 2024** at 2:30 pm the Court reconvened and Adv. Masoabi, the defence Counsel, informed the court that he had since received the witnesses’ statements. The Court inquired whether the defence had any preliminary issues that they wished to raise before the trial commenced, and Adv. Masoabi stated that the defence had no preliminary issues and was ready to proceed with the trial, scheduled for **21 to 25 October 2024**. Similarly, the Court inquired whether the Crown had any preliminary issues. Adv. Shakhane stated that the Crown was ready to proceed with the trial and reiterated that the lead prosecutor- Adv. Naidoo would be the one prosecuting the matter when the trial commenced. [10] It should be noted that the Crown served the notice of trial on the accused on **30 September 2024** , because it had been brought to the attention of the Crown that the accused could not afford a private lawyer and that his application for _pro-deo_ counsel was not successful. This prompted the Crown to cause the accused to appear before the court on **2 October 2024** , so that the accused’s legal representation issues could be resolved well in advance of the trial dates, as the matter was scheduled to proceed from **21 to 25 October 2024**. Fortunately, the office of the Chief Legal Aid Counsel duly assisted the accused, and Adv. Masoabi indicated that they were ready to proceed with the trial on the selected dates. [11] Be that as it may, on **17 October 2024** , Adv. Shakhane, the Crown Counsel, informed the court that Adv. Naidoo, the lead prosecutor in this case, had informed him that he would not be available for the entire week from **21 to 25 October 2024** ; therefore, he applied for the postponement of the matter. Adv. Shakhane indicated that Adv. Naidoo would only be available from **18 to 22 August 2025** and from **15 to 19 September 2025,** respectively. [12] It is worth noting that the Crown was consulted well in advance before the trial dates were selected. It is for this reason that the Crown caused the accused to be subpoenaed, so that the issue regarding his legal representation could be resolved well ahead of the trial, thereby avoiding an unnecessary postponement. Surprisingly, after all the preparations had been made for the accused to have a lawyer, the defence having been served with the witnesses’ statement, and the PTPS having been held, and the defence having been ready to proceed with the trial, the Crown stood up at the eleventh hour to seek postponement of the matter, on the ground that the lead prosecutor would not be available on the selected dates, the reason being that Adv. Naidoo was seized with another matter in Durban. This court then reluctantly postponed this matter to the week beginning **18 August 2025** and **15 September 2025.** [13] On **18 August 2025** , Adv. Shakhane appeared for the Crown at the instance of Adv. Naidoo, and Adv. Masoabi appeared for the accused. Adv. Shakhane stood up and moved an oral application for a 30-day postponement of the matter, as there was a pending matter in the Supreme Court of Appeal in the Republic of South Africa. The Court then inquired into the details of the matter allegedly pending before the Supreme Court of Appeal and its relevance to this case. Adv. Shakhane stated that he was not aware of the matter's relevance, except that he had been instructed to seek a postponement. [14] On the other hand, Adv. Masoabi stated that on **14 August 2025** , he met Adv. Naidoo, who informed him that he intended to apply for a postponement of the matter. Adv. Masoabi said that he told Adv. Naidoo that he might not have any objection to the postponement, but he would leave that in the hands of the court. The court then stood the matter down to enable Adv. Shakhane to consult further with Adv. Naidoo. When the court reconvened Adv. Shakhane informed the court that Adv. Naidoo said the Crown had not subpoenaed any witnesses; therefore, the matter could not proceed. The court then asked Adv. Shakhane to check his record to confirm that witnesses had not been subpoenaed, and Adv. Shakhane confirmed that eleven Crown witnesses had indeed not been subpoenaed. Adv. Shakhane then stated that the witnesses had not been subpoenaed because both the Crown and the defence had agreed on the postponement. Adv. Masoabi stated that the defence did not object to the proposed postponement, but rather was ready to proceed with the trial, as the issue of postponement was left to the court's discretion. The court then asked the Crown counsel why the Crown did not find it prudent to make a formal application for postponement, and the Crown counsel replied that Adv. Naidoo had not instructed him to make a formal application. [15] Adv. Masoabi then moved an application for the discharge of the accused in terms of **_section 278 (1) (a) of theCriminal Procedure and Evidence Act 1981_** _,_ on the ground that the prosecution has failed to prosecute the case on two occasions, namely on the **21 October 2024** and **18 August 2025** respectively. Adv. Masoabi further submitted that the Crown has never been ready to proceed with the trial, which is why, in both instances, Crown witnesses had not been subpoenaed. On the other hand, Adv. Shakhane stated that all he had been instructed to do was to seek the postponement of the matter. **ANALYSIS AND DISCUSSION** [16] The court then granted a permanent stay of prosecution against the accused due to the Crown's failure to prosecute. The Court stated that the reasons would follow; they are listed below. [17] It is common cause that the Crown failed to prosecute the matter on two occasions, namely the week beginning **21 to 25 October 2024** and the week beginning **18 to 22 August 2025.** It further implied that the scheduled dates from **15 to 19 September 2025** would not be utilized, because of the Crown’s application for postponement. It is important to note that the Crown had agreed upon all these dates. It is further essential to mention that in preparation for the commencement of the trial, the Crown had caused the accused to be subpoenaed so that necessary arrangements could be made to secure a lawyer for the accused, so that on the day of trial, the matter would proceed without any hassles. The court advised the accused to approach the Chief Legal Aid Counsel's office for assistance. The accused was allocated a lawyer, and the Court further instructed the Crown to serve the defence lawyer with the witnesses’ statements. The PTPS was successfully held, and both the defence and the Crown indicated that they had no preliminary issues to address. On **17 October 2017,** the defence was ready to proceed with the matter on **21 October 2024,** as it had already been scheduled for the entire week. On **21 October 2024** , the accused and his lawyer were before the court, ready to proceed with the trial. Be that as it may, the Crown Counsel stood up and applied for the postponement of the matter on the grounds that the lead prosecutor was not present, as he was in Durban, attending to another matter. The court then instructed Adv. Shakhane to proceed with the matter, but he stated that he had not been instructed to do so. [18] It is essential to note that this postponement was at the Crown's request, not the accused's, as the accused had been ready and willing to proceed with the trial. This situation then caused the court to postpone the matter to **18-22 August 2025** , and **15-19 September 2025,** respectively, as the dates suggested by Adv. Naidoo. Be that as it may, on **18 August 2025** , the Crown sought a postponement of the matter. It became apparent on this date that the Crown had not subpoenaed all eleven of its witnesses. This suggests that the Crown had never intended to proceed with this matter, as it would have subpoenaed these witnesses if it had. It is worth noting that, even on this occasion, the accused was ready and willing to proceed with the trial. **The Law** [19] _Section 12 (1) of the Constitution_ provides that: _“If any person is charged with a criminal offence, then unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”_ [20] The _Speedy Court Trials[Act No. 9 of 2002](/akn/ls/act/2002/9)_ provides that in _section 5 (1)_ : _“_ _Upon commencement, a trial shall continue from day to day until it is concluded unless there are compelling reasons to the contrary, and they shall be recorded in writing.”_ [21] In **_Ketisi v. Director of Public Prosecutions LAC (2005-2006) 503 para [10]_** , the Court of Appeal enunciated the following principles: _“[10] Amongst the considerations that may properly be taken into account in determining whether in a given case the right to speedy trial has been infringed are the following: (The reference to Wild’s case, apart from some adaptation, largely reflect the words of the judgment.)_ 1. _Prejudice to an accused person resulting from an unreasonable delay can take many forms. In this regard, one must distinguish between delay, which could jeopardise the fairness of the trial itself (for example, the death or disappearance of witnesses), and more general delay-related prejudice not having a bearing on the trial itself. The latter would include liberty and social interests of the kind referred to in Wild’s case. (See Wild’s case at 700 C-F.)_ 2. _The protection afforded by s 12 (1) of the [Lesotho] Constitution extends beyond specifically trial-related interests and embraces liberty and social interests as well. Those interests have to be taken into consideration in assessing the fundamental question whether there has been an infringement of the protection afforded by the constitutional imperative of a speedy trial. (see Wild’s case at 700 H.)_ 3. _The most important consideration throughout the enquiry is whether the time lapse between charge and trial is reasonable. It bears on other considerations and, in turn, is coloured by them. What is required is a flexible evaluation of the time elapsed in the context of and in conjunction with all other relevant features. (See Wild’s case at 701A-B.)_ 4. _The most invasive prejudice suffered by an accused pending trial is obviously pre-trial incarceration, which entails not only loss of personal liberty but often loss of livelihood and the ability to maintain dependents. Ordinarily, therefore, this form of prejudice will weigh heavily in deciding how long a wait is reasonable. (see Wild’s case at 701C)_ 5. _Due regard must be had to the gravity, nature and complexity of the case. This is not only a consideration in its own right but it interacts with the time lapse, and also with the prejudice suffered by the accused. (See Wild’s case at 701C)_ 6. _A further feature is the accused’s attitude towards delays and his or her role in prolonging the pre-trial period. Although there need not be any assertion of the right to a speedy trial on the part of an accused, where an accused has been a party to or the primary cause of delay he or she cannot be heard to complain of such delay. By the same token fault on the part of the prosecution which results in delay is an important circumstance. Although the ultimate enquiry is whether the time between the charge and the trial is unreasonable, it is obviously relevant that the one or the other party is to blame, in whole or in part, for the delay. (See Wild’s case at 702 A-B)_ 7. _A balance needs to be struck between competing societal and individual interests once a finding has been made that the delay was unreasonable, and the inquiry turns to remedies. A careful value judgment is required. (See Wild’s case at 702 C-D) Society demands that those who have committed crimes should be brought to account and appropriately punished for their misdeeds. From that point of view, it would be an unsatisfactory result if an accused who may have been guilty of a serious crime is allowed to go free without being tried because of the grant of a stay of prosecution. (See the authorities referred to in**Lebona’s case at 496 A-D**.) **[Director of Public Prosecutions and Another v. Lebona**[1]**]**_ 8. _Consequently, a court need not resort to relief as drastic as a permanent stay of prosecution (or, where appropriate, an acquittal as the counterpart of a stay where an accused has already pleaded) in order to remedy an infringement of the right to a speedy trial that does not entail trial prejudice. Thus, in the ordinary course, and absent irreparable trial-related prejudice or extraordinary circumstances, a stay would seldom be the appropriate remedy. (See Wild’s case at 720C-E and 708F.)”_ [22] In the case of **_Rex v. Tumelo Moseme and Others**[2]**, _Sakoane CJ _at page 22 para [20]_** , referred to the case of **_Strunk v. United States_**** _**[3]**_**. The Supreme Court of the United States of America held that the prosecutor’s obligation is to see to it that the case is tried quickly because, “the public interest in a broader sense as well as the constitutional guarantee of the rights to a speedy trial command prompt disposition of criminal charges. Dismissal of the charge is, therefore, the only possible remedy where a speedy trial has been denied.” [23] I agree with the remarks made by **Sakoane CJ __** in the case of** _Moseme_**(_supra_) **_at page 22, para [21],_** where he said: “ _What emerges from all the above dicta is an emphasis that the right to speedy trial belongs to the accused and is in the public interest. It must be respected by the Crown and protected by the courts of law. The duty of the Crown is to prosecute the case without undue haste in order to avoid impairment of the ability of the accused to defend himself due to the death of witnesses, their disappearance, non-availability or fading memories. The duty of the court is to hear the case on scheduled dates and manage it by disallowing unnecessary and lengthy adjournments. Trial prejudice exists where witnesses die and memories fade as a result of delays with the consequence that the accused are prejudiced in the conduct of their trial:**S v. Dzukuda and Others****; S v. Tshilo**[4]****_.” [24] The _Speedy Court Trial Act, 2002,_ has been enacted to facilitate the speedy trial of cases in the courts, as it operationalises **_section 12(1) of the Constitution,_** which guarantees the constitutional right of the accused to a trial within a reasonable time. I want to align myself with the remarks of **Makara J** in the case of **_Khetsi v Director of Public Prosecutions and Others**[5]**:_** **_“_** _[20] The timelines set out in the Act stand as a testimony of the intention of the Legislature to operationalise the s.12 procedural rights for the criminal suspects and the accused at all the phases of criminal justice. These delimit time for making a charge against a suspect, his first appearance before court and setting down of the case for hearing. There are correspondingly inbuilt relieves for those whose rights could in the process be violated._ _[21] All the stipulated times within which each major task in the criminal justice system must be complied and are important and complement each other. However, for the purpose of the present case, the initially determinative provisions would be those under s. 5 (3). They compel the Crown to prosecute criminal proceedings from the date an accused person first appears before a judicial officer pursuant to arrest or service of summons. Then, s.6 and 12 immediately provide a redress where the Crown fails to act so within the prescribed duration by entitling the accused to apply for a dismissal of the charges.”_ [25] In the case of **_Mamphono Khaketla v Director of Public Prosecutions_**[6]**, Makara J** had this to say: _“In principle parties in a litigation have a right to access the courts and for their dispute to be speedily tried towards a resolution of the dispute between them. This is recognised as a human procedural right and it obtains throughout the pre-trial, and past-trial phases in litigation. In criminal justice, it applies from the moment one is suspected of having committed a criminal offence, at the time the arrest is made, when the charge is preferred against such suspect and throughout the trial and past the event**[7]**.” _ [26] In the **_Khaketla case_** (supra), Makara J at page 21 referred to the case of **_Sankatana Masupha v. Regins**[8]**,_** where **Watkin Williams C.J** said: _“…Whether a person is guilty or not guilty, the period awaiting trial and its outcome is often of anxiety and strain and is a punishment, additional to that which may be passed by way of sentence…but if delays are great, the merited punishment may be less than that which has already been suffered.”_ [27] I fully agree with the sentiments expressed by **Makara J** in the **_Khaketla case_** (_supra_) that, _it has become an entrenched principle of law that an application for postponement is a search for an indulgence rather than a request for a right or a normal trajectory in the proceedings. Thus, this renders it explainable that for the dispensation to be given, whoever seeks for it, must justify it with a compelling reason. Actually, Section 5 of Speedy Court Trial Act, mimics the common law expectation for the consistency and expediency in the hearing and disposal of the criminal case**[9]**._ [28] This court further finds comfort in the case of **_Khetsi v Director of Public Prosecutions**[10]**_** , where the court stated that _this court recognised that the Crown had, in bringing the accused before it, against the corruption and economic offence charges, violated his fair trial and procedural rights under section 12 of the Constitution, which should have consequences. So, in consideration of the time delays taken by the Crown to prosecute him and the fact that this was being exacerbated by the fact that he was unprocedurally being arraigned before the court, the court declined to postpone the matter and granted the application for the permanent stay of the proceedings._ [29] The question of judicial discretionary powers of the court in the determination of an application for the postponement of the trial was well articulated in the case of **_Myburgh Transport v. Botha t/a SA Truck Bodies_**** _**[11]**_****_,_** by **Mahomed AJA** in these words: _“An appeal court is not entitled to set aside the decision of a trial court granting or refusing a postponement in the exercise of its discretion merely on the ground that if the members of the Court of Appeal had been sitting as a trial court, they would have exercised their discretion differently.”_ [30] It is trite that a party that applies for a postponement of the case should do so with the understanding that it is seeking the court’s indulgence; therefore, it must justify that with sound and valid reasons. If the party fails to furnish a sound explanation for seeking the postponement, then the matter should proceed as scheduled. [31] **_Section 99 (1) of the Constitution_** __ provides that _there shall be a Director of Public Prosecutions whose office shall be an office in the public service_. **_(2)_**___The Director of Public Prosecutions shall have power in any case in which he considers it desirable so to do-_ _(a) to institute and undertake criminal proceedings against any person before any court (other than a court-martial) in respect of any offence alleged to have been committed by that person;_ _(b) to take over and continue any such criminal proceedings that have been instituted or undertaken by any other person or authority; and_ _(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instated or undertaken by himself or any other person or authority._ **_(3)_**___The powers of the Director of Public Prosecutions under**subsection (2)** may be exercised by him in person or by officers’ subordinate to him acting in accordance with his general or special instructions._ [32] It is worth noting that this matter was prosecuted by the Office of the **_Directorate on Prevention of Corruption and Economic Offences._** This office is a creature of statute under **_section 3 of the Prevention of Corruption and Economic Offences**[12]**_**. Among the various functions of the Directorate, the following are provided under _section 6:_ _(a) to receive and investigate any complaints alleging corruption in any public body;_ _(b) to investigate any alleged or suspected offences under this Act, or any other offence disclosed during such an investigation;_ _(c) to investigate any alleged or suspected contravention on any of the provisions of the fiscal and revenue laws of Lesotho;_ _(d) to investigate any conduct of any person, which in the opinion of the Director, may be connected with or conducive to corruption;_ _(e) to prosecute, subject to section 43, any offence committed under this Act;_ _(f) to assist any law enforcement agency of the Government in the investigation of offences involving dishonesty or cheating of the public revenue;_ _(g) to examine the practices and procedures of public bodies in order to facilitate the discovery of corrupt practices and to secure the revision of methods of work or procedures which in the opinion of the Director, may be conducive to corrupt practices._ _…_ [33] It is essential to state that **_section 99 of the Constitution_** read in conjunction with **_section 5 of the Criminal Procedure and Evidence Act, 1981,_** gives the Director of Public Prosecutions power to institute and undertake criminal proceedings, to take over and continue any criminal proceedings, and to discontinue such proceedings. On the other hand, the Directorate for the Prevention of Corruption and Economic Offences has the power to investigate and prosecute specific economic and corruption offences. [34] It is worth noting at this stage that the accused in this matter was facing serious offences, as it was alleged that he caused prejudice to the Government of Lesotho to the value of **M850 million**. This court has taken judicial notice that this case has become an issue of public interest due to the substantial value of the funds involved. The accused in this matter was a former Minister, and the two factors —namely, the value of the money involved and the fact that the accused was a former minister —attracted significant attention to the matter. Naturally, the accused was subjected to the court of public opinion. **CONCLUSION** [35] Be that as it may, on 21 October 2024, the Crown applied for the postponement of the matter on the ground that the lead prosecutor, Adv. Naidoo was attending to another matter in Durban. It is worth noting that on 2 October 2024, Adv. Naidoo appeared before the court and was fully aware of the scheduled trial date. Adv. Naidoo informed the court that the matter was scheduled for a hearing on 21 October 2024 and arranged for the accused to be summoned so that prior arrangements for legal representation could be made. The accused retained a lawyer, and a pre-trial planning session was held to ensure everything was in order for the hearing on 21 October 2024. However, Adv. Naidoo was not present in court on that date as he was attending to another matter in Durban. Consequently, the court reluctantly postponed the case to 18-22 August 2025 and 15-19 September 2025. [36] On the 18th August 2025, the prosecution again asked for the postponement of the matter from the bar, on the ground that a matter was pending in the Supreme Court of Appeal. The court inquired from Adv. Shakhane, what the matter was about and its relevance to this matter, and Adv. Shakhane had no information about the matter or its relevance, as he told the court that he had been asked to seek a postponement. [37] This court found guidance in the **_High Court Directive No.1 of 30 June 2005,_****_adopted by the Court of Appeal on 20 October 2005**[13]**,_**__ where **Lehohla CJ** said: _[1] The delays in the operation of the law and consequent erosion of respect for the processes of the law have many causes. One of these is the abuse of the privilege to be able to apply for and obtain a postponement of legal proceedings._ _[2] There is overwhelming evidence that postponements are being sought and granted without proper and persuasive reasons being furnished. It must be borne in mind that in a criminal trial, postponement often cause serious prejudice both to the Crown and to the accused. Witnesses who may have travelled vast distances are inconvenienced; the delay means that their memories may no longer be clear by the time they are called upon to testify, and if a case is postponed on more than one occasion, witnesses lose interest and become unwilling to perform the public duty as good citizens would do._ _[3] The same applies to defence witnesses. More importantly, if an accused is incarcerated pending his trial and is acquitted at the trial, unnecessary postponements also defer his release from unwarranted and unjust imprisonment with all the prejudicial negative consequences._ _[4] For these reasons, I am of the opinion that the interests of justice require the institution of several pre-conditions to be formulated and formal procedures prescribed in order to try to reduce the incidence of postponements being sought and granted without compelling cause. These are the following:_ _4.1 Postponements may not be granted merely because the date of the hearing does not suit a particular counsel or lawyer. This does not of course preclude suitable dates being negotiated pre-hearing._ _4.2 Good grounds for a postponement such as ill-health or the disappearance of a witness will have to be proved by evidence under oath, either viva voce [i.e., by word of mouth; orally] or by way of a duly motivated affidavit._ _4.3 Judicial officers may not mero motu [i.e from pure, simple impulse; from one’s own free will; spontaneously] postpone cases simply because the date of the hearing may cause them some personal inconvenience. The public interest, requiring justice without delay, must take precedence over personal convenience._ _4.4 The court granting a postponement must record the reasons submitted for such an application and the factors that have motivated the presiding officer to grant the same._ [38] It is important to note that during the first request for a postponement, the Crown argued that Adv. Naidoo was attending to another matter in Durban. However, this was not a valid or convincing reason for seeking a postponement, especially considering that he had been consulted and had agreed to the set date. This indicates that Adv. Naidoo secured hearing dates for this matter, but then double-booked those same dates for another case. Such behaviour is unethical, unprofessional, and discourteous, and shows significant disrespect for this court. [39] As if that was not enough, again on 18 August 2025, Adv. Shakhane appeared before the court and informed the court that Adv. Naidoo was not around; therefore sought the postponement of the matter. Adv. Shakhane informed the court that on 14 August 2025, Adv. Naidoo met with Adv. Masoabi, the defence Counsel, at their offices and agreed to have the matter postponed. It is based on this reason that Adv. Shakhane informed the court that the defence and the Crown had agreed to postpone the matter. However, Adv. Masoabi stood up to inform the court that, during their meeting with the Crown, they had stated they were ready to proceed with the matter but would not object to a postponement. [40] It is a matter of common cause that Adv. Naidoo met with the defence Counsel at their offices here in Maseru. It goes without saying that Adv. Naidoo was present in Lesotho on 14 August 2025, but he did not consider it courteous to approach the court before 18 August 2025 to explain his situation. All the Crown did was meet with defence Counsel to inform them that they would be seeking a postponement. Once again, this court finds that the Crown’s behaviour in this regard was unethical, unprofessional, discourteous, and disrespectful to the court. [41] The court inquired from Adv. Shakhane about the number of Crown witnesses and whether witnesses had been subpoenaed. Adv. Shakhane informed the court that the Crown had eleven witnesses and confirmed that all eleven had not been subpoenaed. It became crystal clear that since **October 2024,** when the matter was postponed to **August 2025** and **September 2025** , the Crown had at all material times not been ready to proceed with the trial on **18 August 2025** and **15 September 2015** , respectively. If the Crown had been ready to proceed with the trial, witnesses could have been subpoenaed and prepared. On the other hand, the defence had been ready to proceed with the trial since **October 2024**. I must hasten to state that the Crown’s failure to proceed with the trial caused great inconvenience to the accused and to this court. [42] I must state that the whole week beginning from **21 to 25 October 2024** , the week beginning from **18 to 22 August 2025** , and the week beginning from **15 to 19 September 2025,** had been allocated to this matter for hearing, but were not utilised due to the Crown’s unreadiness to proceed with the trial. [43] It is a matter of public knowledge, and the Chief Justice has always stated that this court is grappling with a huge backlog of criminal cases. This Court wishes to refer to the **_remarks that were made by the Chief Justice, at the Ceremonial Opening of the High Court on 1 st February 2023_**. On _page 8_ of his speech, he had the following to say: _“**Strategy to tackle backlog**_. _[9] Following the recruitment of more judges, we have resuscitated the criminal session rolls in terms of section 11 (2) of the High Court Act, 1978. From today, there will be three judges on the session roll to exclusively deal with criminal trial. The judges will be allocated cases on a rotational basis from session to session. This will provide space for dealing with murder and corruption cases on an expedited basis. We call upon the prosecution to do its duty of bringing all witnesses to court so that the case is not postponed on account of the unavailability of witnesses. As regards the so-called high-profile case, the difficulty in their speedy disposal is that some of them are assigned a special prosecutor who can only prosecute one case at a given time before a particular judge. This makes it difficult to set down a case for a longer period before one presiding judge. Hearing these cases on a rotational basis does not only delay their completion but is costly both to the Crown and the accused. In the process, witnesses might even die thereby compromising attainment of justice. All these would have been avoided if, from the commencement of these cases, the provisions of the Speedy Trials Act, 2002, were strictly observed”._ [44] It is therefore disheartening when the Crown fails to prosecute cases without justifiable reasons, while the High Court faces a huge backlog of criminal cases, as the Chief Justice articulated in his speech. This court has further taken judicial notice of the persistent public outcry about criminal cases that never proceed, as they are endlessly postponed, either at the instance of the Crown, the defence, or the presiding judicial officer. It will be remiss of me if I cannot state that the Crown’s conduct in this regard was unacceptable because the Crown approached this court with a clear understanding that their plea for the postponement was there for the taking. [45] This court has considered that the accused is facing a serious charge, in which the Crown alleges that the accused caused the government of Lesotho prejudice to the value of **M855 million**. It is common cause that this matter attracted significant public interest due to the accused's former ministerial status and the amount involved. The court has taken judicial notice of the fact that the matter became a matter of public opinion and was discussed on different social media platforms. It goes without saying that the accused was subjected to the court of public opinion, and, naturally, he was emotionally and mentally affected by what was said about him in the public domain. [46] Ultimately, his day to answer the charges he faced arrived, and the Crown was expected to prosecute the case speedily, without any undue delay. It is worth noting that the defence has been ready to proceed with the trial since **October 2024** , when the matter was postponed at the Crown's instance. Again, on **18 August 2025** , the defence was ready to proceed with the trial, but the prosecution was not ready and failed to furnish any justifiable evidence as to why they could not prosecute the matter. [47] I wish to refer to the remarks of **Lehohla CJ _,_** in the** _High Court Directive of 30 June 2005_** _(supra), that it must be borne in mind that in a criminal trial, postponements often cause serious prejudice both to the Crown and to the accused. Witnesses who may have travelled vast distances are inconvenienced; the delay means that their memories may no longer be clear by the time they are called upon to testify, and if a case is postponed on more than one occasion, witnesses lose interest and become unwilling to perform the public duty as good citizens would do**[14]**._ [48] I want to borrow the remarks of **Makara J** that, _in principle, parties in a litigation have a right to access the courts and for their dispute to be speedily tried towards a resolution of the dispute between them**[15]**._ [49] _…Whether a person is guilty or not guilty, the period awaiting trial and its outcome is often of anxiety and strain and is a punishment in itself additional to that which may be passed by way of sentence… but if delays are great, the merited punishment may be less than that which has already been suffered**[16]**._ [50] _The constitutional and legislative scheme already referred to, especially the**Speedy Court Trial Act,** consequently, obliges the Crown to consistently and expeditiously prosecute its case since it is dominis litis, and in that regard hurled the accused into court. The background understanding being that the Crown demonstrated its readiness to do so from the moment it preferred the charges against the accused, and even identified the hearing dates with them**[17]**._ [51] In the **Khaketla case** (_supra_), Makara J remarked that _it has become an entrenched principle of law that an application for postponement is a search for an indulgence as opposed to asking for a right or the application for a normal trajectory in the proceedings. Thus, this renders it explainable that for the dispensation to be given, whoever seeks it must justify it with a compelling reason. Actually,**section 5 of the Speedy Court Trials Act,** mimics common law expectation for the consistency and expediency in the hearing and disposal of the criminal cases**[18]**._ [52] The judicial discretionary powers of the Court in the determination of the application for postponement was well accentuated by **Mahomed AJA** , in **_Myburgh Transport v Botha t/a SA Truck Bodies**[19]** _**it these words** _:_** _“_ _An appeal Court is not entitled to set aside the decision of a trial court granting or refusing a postponement in the exercise of its discretion merely on the ground that if the members of the Court of Appeal had been sitting as a trial court, they would have exercised their discretion differently.”_ [53] It is essential to state that, in terms of **_section 99 of the Constitution_** read in conjunction with **_section 5 of the Criminal Procedure and Evidence Act, 1981_**** _,_** the Director of Public Prosecutions has exclusive jurisdiction to charge anyone with a criminal offence and to prosecute such a person. On the other hand, the office of the Directorate on Prevention of Corruption and Economic Offences has powers to investigate and prosecute corruption and economic offences. It is therefore important to highlight that both the office of the Director of Public Prosecutions and the Directorate on Corruption and Economic Offences are agencies of the Crown. [54] This court finds that the Crown’s application for the postponement was not based on proper and persuasive reasons, as Adv. Shakhane for the Crown failed to assist the court with the reasons for the postponement, stating that he was merely told to ask for a postponement because a matter was pending in the Supreme Court of Appeal. He was asked by the court what this matter was about and its relevance to this case, and Adv. Shakhane was of no assistance to the Court, as he insisted that he had been instructed only to request a postponement of the matter. I want to align myself with the remarks of _Makara J in the case of**Khetsi v DPP**(supra) that to this end, the legislative architecture and the case law project a clear picture that a party that applies for a postponement of the hearing should do so with the appreciation that is seeking for a dispensation orthodox trend and, therefore must justify that with well- supported basis for it to be allowed. Otherwise, the hearing should proceed as scheduled**[20]**._ This court has found guidance in the **_High Court Directive of 30 June 2005, adopted by the Court of Appeal on 20 October 2005_** _(supra)._ I must reiterate that the Crown’s conduct in failing to prosecute the matter on two different occasions plainly demonstrated the Crown’s unreadiness and unpreparedness to prosecute the case. This point is reinforced by the fact that Adv. Shakhane confirmed to the court that the Crown had not subpoenaed all eleven of its witnesses, indicating that the Crown had never been ready or willing to prosecute the case since **August 2024**. [55] I must further reiterate that the defence has always been ready to proceed with the trial since October 2024. The defence was ready to proceed with the trial on both occasions when the Crown asked for a postponement. On these occasions, the accused had been caused to travel from his home to court, only to be told that the Crown was not ready to proceed with the trial. I must indicate that the accused continued to be subjected to the court of public opinion if the trial was not completed, and this affected the accused mentally and emotionally. The accused was ready to defend himself in court, but the Crown, without any valid reasons, sought to postpone the matter. [56] This court has found that the Crown’s delay in prosecuting the matter was unreasonable. This court relies on the case of **_Barker v Wingo_**** _**[21]**_**. The court found that the application for a postponement was not bona fide and was merely a tactical ploy by the Crown to delay justice in the matter, thereby further subjecting the accused to the court of public opinion. This court found guidance in the principle that “** _Justice delayed is justice denied”_** , because the accused was entitled to a speedy trial as envisaged in **_section 5 of the Speedy Court Trials Act (supra)_**_._ It is a trite law that the court has discretion in considering an application for the postponement of a trial. It is a trite law that postponements are not merely for the asking. The Crown failed to show good cause for seeking a postponement of the matter. [57] The court found that, if it had granted the postponement, it would not have served the interests of justice in this matter, as it became apparent that the Crown had never been ready to prosecute. The Crown was still not ready on **18 August 2025** , and **15 September 2025,** despite having been given approximately **10 months** to prepare for the trial. I am saying the Crown had never been ready to prosecute the matter because, since **October 2024** , it had not subpoenaed its eleven witnesses. This fact alone indicates that the Crown had not prepared itself for trial, which is why it sought postponement of the matter on **18 August 2025**. Amid all this unreadiness on the part of the Crown, the accused was brought to court only to be told that the Crown was not ready. [58] I hold the view that this was unfair to the accused, as it was in stark violation of the provisions of **_section 12 of the Constitution of Lesotho_.** It is also critical to note that this court is struggling with a backlog of criminal cases that has piled up over the years. This court has been assigned by the Chief Justice to hear only criminal cases to tackle this backlog. It will be remiss of me if I cannot state that the conduct of the Crown by failing to prosecute this matter on the three scheduled dates significantly contributed to the very challenge that the Chief Justice is trying to address, which is tackling the backlog by ensuring that the criminal cases are heard speedily to finality. I am saying the Crown is eminently contributing to the backlog, because this court could have heard and finalised three criminal cases if the Crown had not been allocated the dates in **October 2024** , **August 2025** , and **September 2025** , respectively. Those three weeks were wasted because of the Crown’s unreadiness to prosecute this case. This postponement also affected the week commencing from **15 to 19 September 2025** , as the matter had been scheduled for these dates. This court therefore concludes that the delays occasioned by the Crown in the prosecution of this matter justify permanently staying the prosecution against the accused. **ORDER** 1. The prosecution is permanently stayed against the accused. __________________________ **T.J. MOKOKO** **JUDGE** **FOR THE CROWN:** ADV. SHAKHANE **FOR THE ACCUSED:** ADV. MASOABI * * * [1] LAC (1995-1999) 474 [2] (No.2) (CRI/T/02/2012)[[2020] LSHC 9](/akn/ls/judgment/lshc/2020/9) ( 30 November 2020) [3] 412 US 434 (1973) [4] 2000 (4) SA 1078 para [51] [5] CRI/T/0079/2014 (22 November 2017) [6] CRI/T/0098/2017 [[2022] LSHC 121](/akn/ls/judgment/lshc/2022/121) CRIM (2 June 2022). [7] Mamphono Khaketla v Director of Public Prosecutions (supra) Page 20, at para [31]. [8] 1963-66 H.C.T.L.R 102,104 [9] Mamphono Khaketla v. Director of Public Prosecutions (supra) page 24, at para [37]. [10] CRI/T/0079/2014, page 28, at para [45]. [11] 1991 (3) SA 310 (Nm), 314-315 [12] No. 5 of 1999. [13] Lesotho Appeal Cases 2005-2006 pages 315-316. [14] Lesotho Appeal Cases 2005-2006 page 315. [15] Mamphono Khaketla v DPP CRI/T/0098/2017[[2022] LSHC 121](/akn/ls/judgment/lshc/2022/121) Crim (2 June 2022) p 20 [31]. [16] Mamphono Khaketla v DPP (supra) page 21. [17] Mamphono Khaketla v DPP (Supra) page 23. [18] Mamphono Khaketla v DPP CRI/T/0098/2017[[2022] LSHC 121](/akn/ls/judgment/lshc/2022/121) Cri (2 June 2022) page 24 para [37]. [19] 1991 (3) 310 (Nm), 314-315 [20] Khetsi v DPP CRI/T/0079/2014 page 31 para [49]. [21] 407 U.S 514 (1972) at 530