High Court Act, 1978


High Court Act, 1978

Act 5 of 1978

ActTo consolidate and amend the law relating to the High Court of Lesotho.Enacted by the Assembly—

1. Short title

This Act may be cited as the High Court Act 1978.

2. Continuation of existence of High Court

(1)The High Court for Lesotho shall continue to exist and shall, as heretofore, be a superior court of record, and shall have—
(a)unlimited jurisdiction to hear and determine any civil or criminal proceedings under any law in force in Lesotho;
(b)in its discretion and at the instance of any interested person, power to inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon the determination; and
(c)such jurisdiction and powers as may be conferred on it by this Act or any other law.
(2)The Judges of the High Court shall be the Chief Justice and one or more judges.

3. Appointment of Judges of High Court

(1)The Chief Justice and judges shall be appointed by the King acting in accordance with the advice of the Prime Minister.
(2)A person shall not be qualified to be appointed as a judge of the High Court unless—
(a)he holds or has held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or of a court having jurisdiction in appeals from such a court; or
(b)holds the qualifications required for admission and enrolment by the High Court as advocate or attorney under the Legal Practitioners Act 1967 and has held the same for a period of not less than five years.[Act 11 of 1987]
(3)If the office of Chief Justice is vacant or the Chief Justice is for any reason unable to exercise the functions of his office, then, until a person has been appointed to and has assumed the functions of that office or until the person holding that office has resumed his functions, as the case may be, they shall be exercised by such one of the judges or by such other person qualified to be appointed as a judge of the High Court as the Prime Minister may appoint.
(4)If the office of a judge is vacant or if a judge is appointed to act as Chief Justice or is for any reason unable to perform the functions of his office or if the Chief Justice advises the Prime Minister that the state of business so requires the Prime Minister may appoint a person who is qualified to be appointed as a judge of the High Court to act as judge of that court.
(5)A person appointed under subsection (4) to act as judge shall, subject to section 4 (1) and 4 (3), continue to act for the period of his appointment, or if no such period is specified, until his appointment is revoked by the Prime Minister.
(6)A person appointed to act as Chief Justice or as a judge in pursuance of subsection (3) or (4) may, notwithstanding the assumption or resumption of duties by the Chief Justice in the first case, or the expiration of the period, or the revocation, of the appointment in the second case, continue to act as Chief Justice or judge for so long and to the extent as may be neces­sary to enable him to deliver judgment or to do any other thing in relation to proceedings which were commenced before him previously thereto.

4. Tenure of office of High Court

(1)Subject to this section, a person holding the office of a judge of the High Court shall vacate the office when he attains the age of 75 years.
(2)Notwithstanding that he has attained the age prescribed in subsection (1) a person holding the office of judge of the High Court may continue in office for so long after attaining the age as may be necessary to enable him to deliver judgment or to do any other thing in relation to proceedings commenced before him before he attained that age.
(3)A judge of the High Court may be removed from office by the King acting on the advice of the Prime Minister but only for inability to perform the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour.

5. Registrar of High Court

(1)There shall be attached to the High Court a Registrar and such number of Assistant Registrars as the Chief Justice may determine whose offices shall be offices in the public service.
(2)Any act which under any enactment is required to be done by the Registrar may be performed by an Assistant Registrar.

6. High Court proceedings when within subordinate courts’ jurisdiction

No civil cause or action within the jurisdiction of a subordinate court (which expression includes a local or central court) shall be instituted in or removed into the High Court, save—
(a)by a judge of the High Court acting of his own motion; or
(b)with the leave of a judge upon application made to him in Chambers, and after notice to the other party.

7. Powers of review

(1)The High Court shall have full power, jurisdiction authority to review the proceedings of all subordinate courts of justice within Lesotho, and if necessary to set aside or correct the same.
(2)This power, jurisdiction and authority may be exercised in open court or in chambers in the discretion of the judge.

8. Powers on appeal

(1)The High Court shall be a court of appeal from all subordinate courts in Lesotho with full power—
(a)to reverse and vary all judgments, decisions and orders, civil and criminal, of any of the subordinate courts;
(b)to order a new trial of any cause heard or decided in any of the subordinate courts and to direct, if necessary, that such new trial shall be heard in the High court;
(c)to send back any case heard and decided in a subordinate court with such instruction as to any further proceedings as the High Court may deem necessary; and
(d)to impose such punishment (whether more or less severe than, or of a different nature from, the punishment imposed by the subordinate court) as in the opinion of the High Court ought to have been imposed at the trial.
(2)When considering a criminal appeal and notwithstanding that a point raised might be decided in favour of the accused, no conviction or sentence shall be set aside or altered by reason of any irregularity or defect in the record of proceedings, unless it appears to the High Court that a failure of justice has in fact resulted therefrom.

9. Assessors

(1)The High Court may call to its assistance at any civil or criminal trial or appeal not more than four assessors, whose duty it shall be to give either in open court or otherwise, such assistance and advice as the judge may require, but the decision shall be vested exclusively in the judge.
(2)The agreement or disagreement of the assessor or assessors with the decision of the judge shall be noted on the record.

10. Place of sittings

The High Court shall hold its sittings in the High Court building at Maseru or in such other place as the Chief Justice may appoint.

11. Sessions of Court

(1)The dates and times of sitting of the High Court (called "sessions") shall be determined by the Chief Justice.
(2)At the sessions, of which there shall be two in each year, all criminal business shall as far as practicable be tried and determined in priority to all other business.

12. Distribution of business

The Chief Justice shall regulate the distribution of business in the court, and all actions and proceedings before the Court shall be heard and determined by a single judge, unless the Chief Justice otherwise directs.

13. Proceedings to be in open Court

Save as otherwise provided in this Act, the pleadings and proceedings of the High Court shall be carried on and the sentences, decrees, judgments and orders thereof pronounced and declared in open court, but a judge may, if he thinks fit and at any time of the proceedings, order the court to be cleared or order any person or class of persons to leave the court.

14. No Judge to hold other office of profit

(1)No Chief Justice or Judge shall accept or perform any other office or place of profit or emoluments not authorised by law.
(2)Subsection (1) shall not apply to a judge who may be temporarily appointed under section 3 (4)

15. Gratuities, allowance & privileges of judges

(1)In addition to their salaries under the Statutory Salaries Order 1972 there shall be paid to judges of the High Court such gratuities and allowances and there shall be granted to them such privileges in respect of leave of absence, transportation, passages and residential quarters as may be prescribed by a resolution of the Assembly to that effect.
(2)Pending a resolution of the Assembly for the purposes of subsection (1), the gratuities and allowances payable and the privileges granted members of the public service pursuant to the Public Service Regulations 1969 shall apply.

16. Rules of Court

The Chief Justice may make rules of court for any one or more of the following purposes—
(a)for regulating and prescribing the procedure (including the method of pleading) and the practice to be followed in the court in all causes or matters whatever;
(b)for regulating and prescribing the procedure on appeals (other than criminal appeals) from any court or person to the court.
(c)for prescribing the forms to be used in connection with any cause or matter before the court;
(d)for prescribing the fees an percentages to be taken in the court; the fees of advocates and the costs of attorneys, the costs of proceedings in the court; and the taxation and recovery of the same;
(e)for regulating the expenses of parties and witnesses, their amount and the method and time of payment thereof.

17. Repeal

The High Court Act 1967 and Part 3 of the Court of Appeal and High Court Order 1970 are repealed.
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History of this document

18 August 1978 this version
08 August 1978
Assented to

Subsidiary legislation

Title Numbered title
High Court (Commercial Court) Rules, 2011 Legal Notice 159 of 2011
High Court Rules, 1980 Legal Notice 9 of 1980

Cited documents 0

Documents citing this one 54

Judgment 52
  1. (CIV/APN 274 of 82) [1982] LSCA 101 (3 December 1982)
  2. Abubaker v Ellerines Furnishers (Lesotho) Pty Ltd and Another (CIV/APN 288 of 89) [1990] LSCA 35 (5 February 1990)
  3. Attorney General v Makara (CIV/APN 250 of 92) [1995] LSCA 5 (6 January 1995)
  4. Bofihla Makhalane v Letseng Diamond (Pty) Ltd and Others (CIV/APN 159 of 2012) [2013] LSHC 42 (30 May 2013)
  5. Femilana v Vice-Chancellor of Nul & Another (CIV/APN/ 517 of 1) [2002] LSCA 94 (25 April 2002)
  6. Hoohlo v Lesotho Electricity Company (C of A (CIV) 9 of 20) [2020] LSCA 23 (30 October 2020)
  7. Jaase & Others v Jaase & Others (CIV/APN 62; C of A (CIV) A) [2017] LSCA 5 (12 May 2017)
  8. Jobo v Lenono and Others (C of A (CIV) 28 of 10) [2011] LSCA 2 (20 April 2011)
  9. Khasake-Mokhethi v Moloi (CIV/APN 73 of 13) [2013] LSHC 86 (22 August 2013)
  10. Khoabane v Commander LDF (CIV/APN/370/2021 CIV/APN/385/2021) [2022] LSHC 69 (12 January 2022)
  11. Khoache v Magistrate for the District of Thaba-tseka (CRI/REV/0018/2021) [2022] LSHC 107 (12 July 2022)
  12. Lesotho Observatory Foundation v Hata-Butle (Pty) Ltd (CIV/APN 19) [2019] LSHC 14 (5 September 2019)
  13. Leteka v Leteka (C of A (CIV) 48 of 2019) [2020] LSCA 19 (29 May 2020)
  14. Letseng Diamond (PTY) Ltd V The President of the Law Society of Lesotho (CCA 19 of 2022) [2023] LSHC 213 (11 May 2023)
  15. Maitin v Barigye and Another (C of A (CIV) 29 of 94) [1994] LSCA 131 (28 July 1994)
  16. Majoro v Officer Commanding Quthing Police (C of A (CIV) 24/2022) [2022] LSCA 53 (11 November 2022)
  17. Malokotsa v Seqhee (CIV/T 565 of 18) [2020] LSHC 30 (5 March 2020)
  18. Mamoletsane Moletsane v Fonane Stephen Moletsane (C of A (CIV) 30 of 13) [2013] LSCA 25 (18 October 2013)
  19. Mamoletsane Moletsane v Fonane Stephen Moletsane and Others (CIV/APN 534 of 2011) [2013] LSHC 26 (28 May 2013)
  20. Manyokole v The Prime Minister (C of A (CIV) 15 of 2021) [2021] LSCA 9 (14 May 2021)
  21. Mapiloko v Fragmar (Pty) Ltd (C of A (CIV) 42 of 2017) [2018] LSCA 14 (7 December 2018)
  22. Masobeng v Thaane (C of A (CIV) 14 of 92) [1994] LSCA 9 (22 January 1994)
  23. Matete v Mafeteng Urban Council (LC/APN/030/2021) [2022] LSHC 76 (13 June 2022)
  24. Mathealira v Mathealira (C of A No. 42/2021) [2022] LSCA 10 (13 May 2022)
  25. Matokelo Pheko v Estate late Mothethe Pheko and Others (CIV/T 623 of 2012) [2013] LSHC 50 (16 May 2013)
  26. Moaki v Moaki (CIV/T 418 of 90) [1994] LSCA 28 (15 February 1994)
  27. Mohaleroe Sello & CO v Mphanya (C of A (CIV) 35 of 1995) [1996] LSCA 9 (19 January 1996)
  28. Moiloa v Mokuena (CCA/0068/2017) [2022] LSHC 163 (21 October 2022)
  29. Moletsane v Moletsane (CIV/APN 534 of 11) [2013] LSHC 89 (28 May 2013)
  30. Mphanya v Lemena and Another (CIV/APN 344 of 95) [1995] LSCA 182 (20 November 1995)
  31. Nko v Nko (NA No.) [2000] LSCA 49 (1 January 2000)
  32. Nkuebe & Another v Nkuebe & Others (CIV/APN/ 42 of 2002) [2002] LSCA 53 (27 August 2002)
  33. Ntaote v Mphole (CIV/T 194 of 99) [2002] LSCA 124 (18 October 2002)
  34. Phaila v Director of Public Prosecution (CONSTITUTIONAL CASE 24 of 2018) [2021] LSHC 7 (18 March 2021)
  35. Phaila v Lesotho Defence Force and Others (CIV/APN 561 of 2013) [2014] LSHC 54 (13 March 2014)
  36. R v Acres International Limited Ruling at Close of Crown Case (CRI/T 2 of 2002) [2002] LSCA 2 (18 April 2002)
  37. R v Leluma and Another (C of A (CRI) 6 of 1996) [1998] LSCA 66 (1 July 1998)
  38. R v Mokhantso & Others (CRI/T 95 of 2) [2002] LSCA 142 (23 September 2002)
  39. R v Sopeng (CRI/A 58 of 85) [1983] LSCA 96 (17 October 1983)
  40. R v Sopeng (CRI/APN 58 of 83) [1983] LSCA 120 (16 December 1983)
  41. Ramarumo v Selomi (C of A (CIV) 44 of 2019) [2020] LSCA 14 (29 May 2020)
  42. Roma Valley Co-operative Society v Leseteli Malefane and Others (LCC/APN 5 of 2012) [2013] LSHC 54 (5 July 2013)
  43. Scott Hospital v Lerata and Others (CIV/APN 235 of 95) [1995] LSCA 174 (6 November 1995)
  44. Sekoai v Judicial Service Commission (CIV/APN 347 of 13) [2019] LSHC 112 (13 December 2019)
  45. Seleke v The Minister of Trade and Industry (CIV/APN 437 of 2020) [2021] LSHC 67 (16 August 2021)
  46. Sematlane (born Mokhele) v Sematlane (CIV/APN 33 of 88) [1989] LSCA 43 (19 April 1989)
  47. Sole v Lemane & Another (CIV/T; CIV/T 318) [2001] LSCA 124 (26 September 2001)
  48. T'siloane v Mthombeni & Others (C of A (CIV) 19 of 2016) [2017] LSCA 2 (12 May 2017)
  49. The Law Society of Lesotho v The Chief Justice and Others (CIV/APN 149 of 2010) [2012] LSHC 6 (13 March 2012)
  50. Theko v Attorney General and Another (CIV/APN 96 of 92) [1994] LSCA 32 (22 February 1994)
  51. Ts'ita v Director General National Security Service (CIV/APN 389 of 18) [2019] LSHC 33 (7 March 2019)
  52. Tsakatsi and Another v Ts'osane and Others (CIV/APN 263 of 96) [1997] LSHC 9 (4 February 1997)
Legislation 2
  1. Administration of the Judiciary Act, 2011
  2. High Court Rules, 1980