Judgments

Constitutional and Administrative Law — Compensation for deprivation of property — Lesotho Highlands Water Project — Statutory obligation of Lesotho
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Highlands Development Authority (LHDA) to compensate affected communities — Whether LHDA could rely on In-Stream Flow Requirement (IFR) Policy to deny payment — Failure to consult affected communities — Rule of law and administrative fairness — Duty arising ex lege, not ex consensu.

Constitutional Law – Jurisdiction of the High Court – Enforcement of fundamental rights under section 19 of the Constitution – Proper procedure under section 22 of the Constitution and the Constitutional Litigation Rules –
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Distinction between ordinary and constitutional jurisdiction – Application brought as an ordinary civil claim instead of under section 22 – Non-compliance with constitutional procedure rendering proceedings a nullity – Matter to commence de novo before the High Court exercising its constitutional jurisdiction – Principle against bifurcation of proceedings reaffirmed.

Public Service — Diplomacy — Recall of Consul General — Absence of Exequatur — Whether renders appointment void — Legitimate expectation — Termination clause — Administrative fairness — Rationality — Government’s
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omission — International and domestic law interface — Vienna Convention on Consular Relations (1963) — Articles 12, 22, and 36 — Contractual and administrative legality.

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.

Chieftainship — Succession — Interpretation of section 10(1)–(4) of the Chieftainship Act 1968 (as amended) — Primogeniture and legitimacy — Widow succession — Heir-apparent predeceasing incumbent — No surviving male issue — Custodial widowship and continuity of the senior house — Younger brother’s claim — Customary law and constitutional context — Section 103 of the Constitution.

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.

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.

Condonation – Delay in instituting review proceedings – Reasonableness of delay – Explanation – Prospects of success – Res judicata – Punitive costs.

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

FLYNOTE
Administrative Law — Judicial review — Diplomatic service — Irrational and unequal treatment — Failure to convert salaries of South African-based diplomats into United States dollars while doing so for other missions — Whether exclusion rational and legally defensible — Reviewability of executive policy — High Court’s failure to address substantive review grounds — Serious misdirection.
Prescription — Government Proceedings and Contracts Act 1965, s 6 — Whether applicable to review proceedings — Requirement that prescription be specifically pleaded and proved — Onus on the party alleging it — Court may not raise prescription mero motu.
Contract — Incorporation of terms — Requirement of notice and intention to be contractually binding — Exclusionary savingram not forming part of contracts of service — No evidence that appellants were aware of or consented to it.

Review – Exceptional jurisdiction of apex court – Application to review its own final judgment – Scope and limits of review power – Distinction between review and rehearing – Patent error or gross injustice as the only grounds – Freedom
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of testation – Trust inter vivos versus mortis causa – Whether issue raised on review was before High Court or on appeal – Finality of litigation and abuse of process – Costs in estate.

Review of Court of Appeal Judgment — Exceptional Jurisdiction — Inherent Review Powers of Apex Court — Patent Error or Gross Injustice Threshold — New Cause of Action Raised on Review — Compensation for Improvements to
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Land Not Claimed in Lower Courts — Abuse of Process — Condonation — Late Filing of Heads — Costs de bonis propriis

Court of Appeal — Review of its own judgment — Jurisdiction — Not provided for in Constitution, statute, or Rules — Inherent jurisdiction to review only in exceptional circumstances — Gross miscarriage of justice or patent error required — Review not a disguised appeal — Principle of finality in litigation reaffirmed.
Composition of the Court — Objection to reconstituted panel — Argument that review must be heard by the same judges who decided the appeal — No merit — Allocation of judges is an internal management function of the President — No constitutional or statutory requirement that the same panel hear review proceedings.
Procedure — Abuse of review jurisdiction — Growing misuse of process — Court introducing new procedural safeguards — Requirement of petition to establish exceptional circumstances before review jurisdiction invoked — Filtering mechanism to prevent abuse.
Costs — Discretionary — Each party to bear its own costs — Court cautioning against unnecessary and unmeritorious applications — Dissent on costs: review unmeritorious but objection arguable — Costs of review to be borne by applicant; no order as to costs on composition objection.