Court of Appeal - 2025

Delict — Police assault — Quantum of damages — Appellate interference — Medical evidence — Global award — Special damages: strict proof, causation, and pleadings cap — Remoteness — Constitutional/dignitary harm — Interest a tempore morae.

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.

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
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Act 1981 — Duty of counsel to assist the court — Exceptional jurisdiction to
correct error.

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.

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.

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.

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.

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.

Civil Procedure – Rescission of default judgment – Failure to enter appearance to defend – Rule 27 (old Rules) and Rule 45 of the High Court Rules 1980 distinguished – Requirement of formal condonation application for delay – Misguided refusal by court a quo to consider “good cause” under Rule 27(6)(c) – Judicial discretion to rescind – Court of Appeal’s power to interfere where discretion not properly exercised – Distinction between authority to sue and validity of power of attorney emphasized – Resolution to litigate not equivalent to proper authorization to act – Default judgment rescinded and matter remitted to High Court for hearing on the merits.

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.

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

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

Civil Procedure – Urgent Applications – Interim Custody of Disputed Property –

Ownership and Possession – Rei Vindicatio and Spoliation – Suspension of

Execution Pending Appeal – Peregrinus and Security for Costs – Jurisdiction

and Lis Pendens – Principles of Urgent Relief.

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 — 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.

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.

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.

Revenue law – Jurisdiction – High Court vs specialised tax tribunal – “Pay now,

argue later” – Ouster or deferment of jurisdiction – Interdict to suspend tax

payment – RAT Act 2005 – Income Tax Act 1993 – Condonation – Leave to

appeal – Final vs interlocutory.

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

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

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

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.

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.

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.

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.

Succession — Testamentary trust — Validity of will — Divorce consent order directing testamentary devolution of property to children — Alleged conflict between will and court order — Whether deceased’s will validly created testamentary trust — Premature challenge to testamentary dispositions — Whether executrix’s appointment lawfully effected.

FLYNOTE
Land Law – Bona fide possession – Right of retention – Section 62 of the Land Act 1979 – Regulation 6 of the Land Regulations 2011 – Effect of statutory deeming –
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Compensation for improvements – Absence of title – Public purposes – Vindicatory action – Equitable doctrines.

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Contract — Arbitration — Interim interdicts — Specific performance — Spoliation — Jurisdiction of High Court in presence of arbitration clause — Whether Road Fund has locus standi — Arbitration Act 1980, s 22 — Public Finance
Management and Accountability Act 2011 — Finance (Road Fund) Regulations 2012.

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Education Law — Appointment of school principal — Teaching Service Commission — Discretion to appoint from recommended candidates — Whether School Board’s ranking creates enforceable legitimate expectation — Procedural fairness — Rationality — Education Act 2010, s 42.

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Summary judgment – Appealability – Interlocutory order – Financial Consumer Protection Act 2022 – Counterclaim – Procedural fairness – Leave to appeal – Summary dismissal – Costs.

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Contempt of Court – Procurement Tribunal – Enforcement of Tribunal Order – Validity and Limits of Court Orders – Public Procurement Regulations – Res Judicata – Statutory Illegality as Defence – Whether disobedience of court order can be justified on grounds of statutory non-compliance.

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Appeal — Condonation — Costs — Appeal struck off — Appropriate scale of costs — Late withdrawal of appeal — Breach of Court Rules — Punitive costs — Attorney and client scale.

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Criminal law – Murder – Extenuating circumstances – Appeal against conviction – Sentence enhancement in absence of cross-appeal – Power of appellate court to vary sentence
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proprio motu – Manifestly lenient sentence – Sentencing discretion – Role of deterrence and public abhorrence in punishment.

FLYNOTE
Civil Procedure — Rescission of default judgment — Whether appellant afforded opportunity to be heard — Mandatory nature of Rule 18(2) of the District Land Court Rules — Bona fide defence — Audi alteram partem — Appeal dismissed.

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Civil Procedure — Postponement of appeal — Representation — Counsel withdrawal — Continuation of stay of execution — Costs in the cause.

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Criminal Law – Murder – Circumstantial evidence – Whether inference of intent to kill established beyond reasonable doubt – Culpable homicide – Whether trial court misdirected itself in failing to consider absence of mens rea for murder – Penal Code Act 2010 (Lesotho), sections 40, 41.

FLYNOTE
Criminal Law — Murder — Self-defence — Whether Crown proved guilt beyond reasonable doubt — Whether trial court misdirected itself in rejecting self-defence — Duties of appellate court on findings of fact — Credibility of witnesses — Single witness rule — Forensic inconsistencies — Investigative irregularities

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Land Law – Registered lease – Allegation of fraud – Evidentiary burden – Donation inter vivos – Improvements made in good faith – Right to compensation – Presumption of regularity – Family dispute.

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Pensions — Constitutional protection of retirement entitlements — Legal non-retrogression — Application of section 150 of the Constitution of Lesotho — Defined Contribution Pension Fund — Comparative benefit analysis — Administrative legality — Use of repealed legislative formula — Reviewable irregularity — Sechele principle applied.

FLYNOTE
Land Law – Donation under customary law – Competing claims of heirship and perfected donation – Regularisation of title through systematic adjudication – Lease issued pursuant to possession and long-standing occupation – Effect of vague and delayed nomination of heirship – Good faith purchasers – Failure to comply with appellate procedural rules.