Judgments

Labour law — Jurisdiction — Public officer — Transfer — Review — Whether High Court retains jurisdiction under section 119(1) of the Constitution after enactment of Labour Act, 2024 — Construction of sections 50(2)(j) and 51(1) of Labour Act, 2024 — Meaning of “any other labour law” — Whether Public Service Act 2005, Public Service Regulations 2008 and Basic Conditions of Employment for Public Officers 2011 fall within the scope of Labour Court’s exclusive review jurisdiction — Distinction between illegality and unfair labour practice — Effect of section 5(e) of the Labour Act on concurrent remedies

Constitutional Law — Locus Standi — Direct and Personal Interest — Section 22(1) of the Constitution of Lesotho

Administrative Law — Review — Delay in institution of proceedings — Unreasonable delay — Effect — Continuing cause of action — Distinction between gratuity and pension — Gratuity payable once-off and does not give rise to a continuing cause of action — Pension payable periodically and giving rise to a new cause of action each month when short-paid — Review dismissed for unreasonable delay in respect of gratuity but allowed regarding pension — Matter remitted to High Court

Appeal — Failure to prosecute — Rule 5 of the Court of Appeal Rules 2006 — Record of proceedings not lodged within prescribed time — Effect of non-compliance — Appeal lapsing automatically — Jurisdiction of Court — Finality and procedural discipline

Appeal — Interlocutory order — Urgency — High Court striking application off the roll for want of urgency — Whether such ruling final or interlocutory — Section 16(1)(b) of the Court of Appeal Act 1978 — Leave to appeal — Jurisdiction

Land Law – Allocation of land – Validity of Form C – Applicable legislation – Whether land allocated under the Land Act 1973 or the Land Act 1979 – Determination governed by the date of allocation and issuance of Form C – Principal Chief’s authority under section 4(2) of the Land Act 1973 – Commencement of the Land Act 1979 on 16 June 1980 – Absence of proof that appellant unlawfully allocated land to himself – High Court misdirected itself by treating Form C as issued under wrong statute – Appeal upheld; Form C validly issued under the 1973 Act

Administrative Law — Review — Appointment of school principal — Teaching Service Commission — Candidate’s withdrawal prior to assessment — Commission appointing withdrawn candidate — Failure to afford hearing to remaining candidate — Procedural fairness — Audi alteram partem — Presumption of regularity rebutted by documentary proof — Fatal misdirection by court a quo. Education Law — Teaching Service Commission — Discretion in appointments — Scope and limits — Commission’s powers under section 42(1) of the Education Act 2010 and Teaching Service Regulations 2002 — Discretion wide but not absolute — Must be exercised lawfully, rationally, and with procedural fairness. Appeal — Review of administrative decision — Court below failing to address decisive fact of withdrawal — Failure to determine effect of undisputed evidence amounting to misdirection — Appointment set aside and matter remitted to Commission for reconsideration

Criminal law — Murder — Sentence — Power of Court of Appeal to enhance sentence — Review of Court’s own order — Patent error — Suspension of sentence for murder — Section 314(2) of the Criminal Procedure and Evidence 2 Act 1981 — Duty of counsel to assist the court — Exceptional jurisdiction to correct error

Judicial Recusal — Double-Reasonableness Test — Appearance of Bias — Case Management — Postponement — Judicial Demeanour and Civility

Criminal Law – Murder – Causation – Whether the chain of causation was broken – Role of medical versus eyewitness evidence – Extenuating circumstances – Sentence. Evidence – Evaluation of conflicting testimony – Preference of credible direct evidence over inconclusive expert opinion – Medical evidence not conclusive but advisory – Court entitled to rely on credible eyewitnesses where consistent with other evidence. Appellate Review – Limited interference with findings of fact – Appellate court slow to disturb trial court’s assessment of credibility unless findings are plainly wrong or vitiated by misdirection. Practice and Procedure – Substitution of lesser offence – Arson reduced to unlawful damage to property under section 198 of the Criminal Procedure and Evidence Act – No prejudice to accused where essential elements of the lesser offence are included in the greater. Sentence – Discretion of trial court – Appellate intervention only where sentence induces a sense of shock or is vitiated by misdirection – 25-year term for brutal, unprovoked killing of defenceless spouse not excessive

Civil Procedure — Rule nisi — Discharge — Effect — Jurisdiction — Whether proceedings may continue after discharge of rule nisi — Discharge of rule nisi terminates proceedings — Subsequent “judgment” a nullity

Civil Procedure – Exception – Appealability – Dismissal of exception – Whether appealable without leave – Distinction between interlocutory and final orders – Principles governing appealability – Fraud alleged in pleadings – Exception not2 determinative of factual disputes – Duty of appellate court to respect trial court’s process – Piecemeal appeals discouraged

Family law – Custody of children – Best interests of the child – Paramountcy principle – Litigation delays and procedural irregularities – Appeal struck off by consent owing to defective and confused record – Duty of practitioners to conduct custody litigation with diligence and clarity. Procedure – Appeals – Leave to appeal – Defective and incomplete record – Confusion as to judgment appealed against – Grounds of appeal unrelated to impugned order – Effect of sloppy litigation on administration of justice. Practice and conduct – Role of lawyers and adjudicators – The best interests of the child as a guiding principle – Paramountcy of children’s welfare does not excuse procedural negligence – Importance of disciplined, responsible and coherent advocacy in family disputes

Appeal — Punitive Costs — Misjoinder — Audi Alteram Partem — Judicial Discretion — Appellate Intervention

Constitutional and Administrative Law — Jurisdiction — Foreign States and International Organisations — Sovereign Immunity — Whether Courts of Lesotho have jurisdiction to make orders against foreign governments or international bodies — Distinction between jurisdiction over foreign entities and domestic authorities — Allegations of threats to personal liberty and safety — Duty of courts to safeguard constitutional rights within Lesotho’s territory notwithstanding foreign involvement

Administrative Law — Public Service — Study leave as prerequisite for state sponsorship — Loan Bursary Agreement — Withdrawal from study leave — Whether withdrawal from study leave automatically terminates bursary agreement — Whether NMDS obliged to continue sponsorship notwithstanding return to duty — Good cause for revocation

Administrative Law — Legitimate Expectation — Job Evaluation and Grading — Public Service Commission’s Decision to Grade Judicial Officers — Whether Central and Local Court Presidents had Legitimate Expectation to be Placed at Grades I and H Respectively — Unsigned Answering Affidavit — Effect — Jurisdiction of High Court

Administrative Law — Employment in disciplined forces — Lesotho Mounted Police Service — Dismissal under section 31(1)(i) of the Police Service Act 1998 — Whether written representations satisfy the requirement of a fair hearing — Commissioner’s discretion to invoke section 31 rather than the full disciplinary process under Part V — Oral hearing not mandatory where written representations suffice — Judicial review of administrative discretion — Scope of appellate interference with discretionary decisions

Appeal — Failure to appear — Want of prosecution — Striking off the roll — Rule 5 of the Court of Appeal Rules — Appellant and counsel 2 absent despite prior indulgence — Inherent power of the Court to regulate its own process — Interests of justice and finality — Proper exercise of discretion

Limitation of Actions – Section 77 of the Police Service Act – Extension of Time – Condonation – Death in Police Custody – Inquest Findings – Good Cause – Indigency – Right to Life – Rule of Law – Public Interest

Administrative law – National Security Service – Lawful discharge – Principle against self-help – Collateral challenge – Jurisdiction of High Court – Rule of law and state security

Constitutional Law — Open Justice — Bail Proceedings Conducted in Chambers — Whether Proceedings in Chambers Render Bail Order a Nullity — Exceptional Circumstances Justifying Departure from Open Court Requirement — None Shown — Principle of Transparency and Public Confidence in Criminal Justice — Victims’ Right to Information — Review Jurisdiction of Court of Appeal