High Court - 2022

SUMMARY Contempt of court – Application not opposed - Party not properly cited – Notice of Motion not addressed to anyone - Elements of Contempt – facts relied upon not proving contempt– facts alleged supporting ad pecuniam solvendam – applicant failed to discharge burden – no contempt proven beyond reasonable doubt – no order as to costs.

SUMMARY Application for permanent stay of unterminated disciplinary proceedings - grounds for- unreasonably long delays in prosecution, loss of potential witnesses giving rise to extraordinary circumstances, denied access to documentary evidence and dismissal of preliminary points taken without providing reasons– Issue for determination – to what extent will the court intervene in matters of unterminated disciplinary proceedings – application dismissed for want of exceptional circumstances.

SUMMARY: Review of decisions of quasi-judicial bodies. Grounds for review. Tribunal ordering retrial. Test for reasonableness of administrative action.

SUMMARY: Criminal law- Sentencing on Section 32(a)(vii) of the Sexual offences Act. mitigating factors on maximum sentence.

Summary Rescission and intervention – Applicant refusing to release lease for a plot sold pursuant to a writ of execution – Lease surrendered to the applicant as security for money lent to judgment debtor – Applicant seeking rescission and intervention in the main matter – Applicant failing to meet the direct and substantial interest test with respect to the main matter – Application for rescission and intervention dismissed. Counter – application – A plot hypothecated through an agreement between judgment debtor and micro finance lender – Judgment creditor applying for the agreement to be declared illegal and unlawful and for the release of a lease in respect of the plot – The agreement of no force and effect as it offends sec 28 of the Deeds Registry Act No. 12 of 1967 – Counter – application granted.

Summary Concurrency of jurisdiction - Rule 9(2) of the Land Court Rules of 2012 -whether the decision of the Court of Appeal in Moletsane v Thamae removes adherence to the requirements of this rule - this Court holds that it does not - objects of the Land Act 2010 in creating the District Land Courts as well as prior decisions of the Court of Appeal on the interpretation of section 6 of the High Court Act of 1978 discussed and applied - jurisdiction declined.

Summary Law of agency – A deed of sale of land signed by agent and third party – Agent clothed with power of attorney by principal to sell land – Third party paying full amount agreed with the agent – Agent failing to remit the full amount to the principle – Principal refusing to transfer land to the third party – Whether the principal is liable to the third party – Principal is liable to the third party and cannot escape liability on the ground that he did not sign the deed of sale or that he did not receive the full amount from the agent.

SUMMARY CIVIL PRACTICE: Approach to points in limine re-stated and applied- Matter dismissed on the bases of untenability of a declarator and lack of locus standi in judicio.

SUMMARY CIVIL PRACTICE: Interpreting court orders- Approach to interpreting documents applicable- The applicants having complained about micro-lenders before the Central Bank, and having obtained an interim interdict against the lenders from deducting from their salaries, monthly repayments, pending the outcome of the investigation- the Central Bank having concluded the investigations and the applicants being dissatisfied with the outcome, whether the court should extend the operation of the rule nisi pending the outcome of their appeal before the Tribunal which is yet to be appointed by the Minister of Finance- a case for the continued operation of the rule not having been made out, the rule accordingly discharged with costs.

SUMMARY LAW OF CONTRACT: Presence of arbitration clause in the contract- whether it ousts the jurisdiction of the court to hear an arbitrable issue- Held, it does not as the aggrieved party must apply in terms of section 7 of the Arbitration Act of 1980 for a stay of proceedings pending arbitration- A party electing to abide by the contract through its conduct despite the presence of its breaches- whether later he/she can rely on the same apparent breaches when he elected to be bound, as the basis for seeking cancellation of the contract- Held in the negative.

Summary Review of a decision by the Master of the High Court - revoking the applicant’s guardianship appointment - appointment and removal of guardians to minor children under the Children’s Protection and Welfare Act - powers of the Master of the High Court - whether they extent to cancellation of an appointment on grounds that the family acted contrary to law - no such power exists and Master's decision therefore ultra vires - natural guardian at liberty to challenge the decision before a competent court.

Summary Application for permanent stay of the prosecution – Applicants having faced the charges of corruption and attempted bribery for plus/minus five years without the case against them proceeding – Pre-trial Planning Session (PTPS) having been held with the counsel for Applicants having unusually and disturbingly placed everything under contestation and not disclosing their defence – This having the effect of defeating the whole purpose of PTPS – The prosecution having been initially conducted by the Directorate on Corruption and Economic Offences (DCEO) institution instructing counsel from South Africa (SA) – The case having been postponed for several times mostly at the instance of prosecution – The SA counsel having withdrawn from prosecuting the matter by writing a letter to the Director of Public Prosecutions (DPP) asking her to find his replacement quickly to avoid interfering with the proceeding of the case at the appointed date – The letter of withdrawal of a counsel having been copied to the defence team – DCEO having eventually advised the Court of its intention to withdraw the charges against the Accused persons due to lack of evidence to sustain them after the death of its star witness – The DCEO having asked for last postponement to enable it to finalise the discussion concerning the withdrawal of the charges against the accused persons with the DPP – On the scheduled date, the DPP having replaced the SA counsel and DCEO with a counsel from the DPP’s chambers and asked for yet another postponement for the new lawyer to acquaint himself with the matter – The defence having vigorously opposed this application for postponement on the ground that the DPP is deliberately delaying the finality of this matter thereby making it difficult for the accused persons to pursue their life endeavours. Held: The objection against the application for the postponement sought for by the Crown is sustained; The prosecution against the Accused persons is permanently stayed as prayed for.

SUMMARY Sale of land – Ministerial consent not required for parties to conclude a valid sale agreement, but such consent is a prequisite for transfer of title – Where seller in bad faith and unreasonably fails to facilitate transfer of title to a buyer, the latter may be granted an order of specific performance directing the seller to do all what is necessary to facilitate transfer of title to the buyer.

SUMMARY Respondent failing to file opposing affidavit – No condonation application - Matter enrolled in uncontested roll – Application for postponement to file condonation denied – urgency of the matter still key - Interdict

SUMMARY High Court - Matter committed to High Court for sentencing - Whether High Court can enquire into the irregularities committed by the trial Court - Section 294(3)(a) and (b) of the Criminal Procedure and Evidence Act, 1981.

SUMMARY: Contempt of court-locus standi for contempt of court-jurisdiction of the court in contempt proceedings. Complying with an unlawful court order.

SUMMARY Magistrate’s Court – Civil proceedings – Jurisdiction – Claim for ejectment based on ownership – Subordinate Court Act 1988 – Sections 15(1) and 17(1) (c) interpreted and applied – Appeal against grant of summary judgment and order of ejectment – Whether defendant did not have a bona fide defence – Subordinate Court Rule 14(4) (c) and 14 (5) applied.

Summary Tender – Fairness and audi alteram partem rule apply in resolving complaints regarding tender award – Affected party entitled to opportunity to make representations before adverse decision to re-evaluate a tender is made.

SUMMARY TAXATION: Appellants appealing against the judgment of the Revenue Appeals Tribunal to recognise the respondent as an expatriate within the meaning of the term in the Income Tax Act 1993 (as amended) and Agreement on Phase II the Lesotho Highlands Water Project- Held, upon interpreting the legal provisions implicated, that the respondent is an expatriate- Appeal accordingly dismissed with costs.

SUMMARY CIVIL PRACTICE: Arbitration- application for stay of proceedings pending arbitration in terms of Arbitration Act of 1980- The applicant having raised court’s lack of jurisdiction as a preliminary point- whether such constituted the taking of a further step in terms of section 7 of the Arbitration Act- Held, such a move does not amount to taking a step in the proceedings so as to deny the applicant an opportunity to apply for a stay of proceedings pending arbitration- Consequently, arbitrable issues referred to arbitration and the question of the review of the decision to award the work to the 3rd respondent in the main application, left aside to be tried before the court.

Summary Recusal application – prosecutor absenting himself from court proceedings without leave of court and attends to another case without knowledge of court – application for postponement filed by the DPP because of absence of prosecutor – misleading information placed before court in support of such application – prosecutor being the source of such information – another prosecutor appointed – previous prosecutor disqualified from appearing in the case – remarks disapproving manner in which the Crown counsel conducted himself – whether the disqualification of the prosecutor and remarks made in course of proceedings constitute reasonable apprehension of bias – ethical obligations of prosecutors – Speedy Court Trials Act, 2002, sections 5(1), 9(4) and 12(4)

SUMMARY CRIMINAL LAW: murder-application for discharge at close of prosecution- right to fair trial and right to be presumed innocent until proven guilty revisited and applied- discharge application granted and accused acquitted- inelegance in drafting of murder charges noted with dismay.

Summary Civil Procedure – Review application – Applicant having been interdicted – Asks Court to review, set aside and declare the interdict as being unreasonable, irrational and unlawful – Exercise of a public official’s administrative powers to be carried out in terms of the law – Applicant seeking an order that he be reinstated to his position in the Lesotho Mounted Police Service, at the RCTS, still retaining his benefits. First respondent making a new case in the answering affidavit – applicant being denied an opportunity to make representations on the new case.

Summary Husband and wife – custody of the child – Best interests of the child – What is? - Minor child attending school in a foreign country – Child moved on to Lesotho – By father’s unilateral actions – Best interest of the child – Mother still working in Mozambique – Parties having since divorced.

Summary Urgent applications – self created urgency – application for temporary interdict without proper notice – litigation involving termination of fuel supply agreement – applicant being aware of the impugned notice of termination of the agreement three months before institution of urgent application – applicant failing to account for the delay in the founding papers – elements of interdict discussed – failure to satisfy elements of interdict - interim relief refused. Costs on attorney and client scale – Institution of urgent application on one court day notice despite the request for proper notice by the respondent two months before the urgent application was instituted – Applicant’s conduct objectionable – Costs on attorney and client scale ordered. Costs de bonis propriis – grounds discussed – the notice of motion in breach of rule 8(7) and 8(8) of High Court Rules 1980 without justification and despite repeated warnings from the Court of Appeal and the High Court – Court file having countless blank pages, thus making reading experience cumbersome – Legal practitioners negligent in a serious degree by abdicating their responsibility to ensure the file was court ready – legal practitioners conducted themselves in a manner deserving of punitive costs. .

SUMMARY This is a delictual claim in which the plaintiff has asked the Court to award him damages for assault inflicted to his son by the Defendants’ agents while his son was under their care and protection at Mohlomi mental hospital. The Plaintiff states that as a result of the assault, his son suffered permanent brain damage and is bedridden, lacks anal and urinary sphincter control. Consequently, his son needs a regular medical attention, special dietary and full time professional nurse. The Defendants do not deny liability but only charge that after receiving the letter of demand, they engaged the Plaintiff’s counsel Mr. Matooane for negotiations concerning plaintiff’s claim. This is due to the fact that it is impossible for the Ministry to just pay out an amount of Twenty Million Maloti (M20 000 000.00) without referring the child for medical assessment to ascertain the degree of damage (injury) caused. Held: The Respondents are liable for the injuries incurred by the child and resultantly, to compensate the Plaintiff.

SUMMARY: Judgments and orders – Rescission – A claim for compensation arising out of breach of contract – Court granting default judgment without evidence being tendered – High Court Rule 45(1) – Whether an order erroneously granted.

SUMMARY CRIMINAL LAW: Accused charged with murder- serious flaws in investigation of the case- circumstantial evidence leaving more than one possible inference- crown relied on hearsay admission made by another co-suspect-

Summary Rescission application – brought in terms of Rule 45 of the High Court Rules 1980 – on grounds of non-compliance with Rule 27(3) – Judgement erroneously granted – requirements of rescission under Rule 45 restated – applicant need not establish sufficient cause - application granted.

SUMMARY: Application in terms of Rule 30(1) of the High Court Rules of 1980 – Applicant claiming that respondents took an improper or irregular step – Respondents having not complied with the request for further particulars instead lodged application for Summary Judgement – Applicant claiming that the respondents should have first provided the requested particulars and that the summary judgment application was set down for hearing less than seven days from the date of its delivery – Summary judgement application set aside as improper or irregular step for want of proper notice.

SUMMARY CRIMINAL LAW: murder, attempted robbery, unlawful possession of firearm-accused raising alibi belatedly during trial and bare denials to allegations linking them to the offences committed-evidence to be evaluated as whole not in isolation- circumstantial evidence proves that accused were at the scene and committed the offences-doctrine of common purpose.

SUMMARY Criminal procedure – Appeal – Failure of Magistrate to warn an unrepresented accused that he is facing a serious charge which is punishable by a hefty mandatory minimum sentence – Reviewable irregularity – Circumstances under which Magistrate may conduct proceedings and record evidence in English without assistance of a court interpreter.

SUMMARY Recusal – approach to application for – objective test applied. Application dismissed-no order as to costs.

Summary Inheritance to land – claimed by a married woman over arable land allocated to her parents’ house where there is no male issue – the male issue from the first house being nominated as heir – whether the ngala custom confers a right to a married woman to inherit her parents’ immovable property - whether a Form C2 and CC2 may validly be issued for arable land

Summary Application in terms of Rule 30 - to set aside a plea filed out of time as irregular proceeding - whether the irregularity may be condoned where the rules are clear that where a party is barred from filing a pleading, he must move to have the bar lifted - consequences of failure to do so.

SUMMARY CRIMINAL LAW: murder and attempted murder-doctrine of common purpose part of our law- act of one perpetrator in committing a crime imputed on co-perpetrators as a matter of law- self-defence.

Summary Civil procedure-notice to file further affidavits in terms of Rule 8(12 )- notice served with the founding affidavit in terms of which rescission and other relief sought - whether this rule may be utilized by an applicant who prematurely files an application before a cause of complaint arises- as a result founding affidavit lacking facts to support the reliefs sought - whether this rule could be invoked to make good counsel’s remissness in handling a matter - the purpose of the Rule restated - application insupportable on the facts of the matter - application procedurally defective and misconceived.

SUMMARY CONSTITUTIONAL LAW: Application to have section 98(4) of the Money Laundering and Proceeds of Crime Act no.40 of 2008 declared unconstitutional for violating section 12 of the Constitution, in that it permits the concurrent running of criminal and civil proceedings in respect of the same property seized in terms of it- she had argued that, given this scenario, it forces her to disclose her defence in civil proceedings thereby forcing her to waive her right to self-incrimination with the consequence that her pending criminal trial is prejudiced- Held, this section does not force an applicant faced with forfeiture application to incriminate herself, what it rather does is to leave her with the choice between leaving forfeiture application go unchallenged and substantively responding to it, held that for this reason, this section is constitutional. -The applicant had further sought to have a three-year delay to charge her with criminal offences following her suspension from work, violated her right to be tried within a reasonable time in terms of section 12 of the Constitution, Held, pre-charge delay in preferring charges not protected by the right to speedy trial a provided under section 12 of the Constitution, the reckoning of time within which a person must be tried starts after charges have been read not before.

SUMMARY CIVIL PRACTICE: Applicant lodging an application in circumstances where material dispute of facts reasonably foreseeable- Application dismissed on this basis alone, with costs.