All courts

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.

FLYNOTE
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.

FLYNOTE
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
2
proprio motu – Manifestly lenient sentence – Sentencing discretion – Role of deterrence and public abhorrence in punishment.

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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

FLYNOTE
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.

FLYNOTE
Civil Procedure — Application for rescission of default judgment — Condonation for late filing — Requirements for rescission at common law — Reasonable explanation and bona fide defence — Negligence of legal representatives — Discretion of the court — Finality in litigation — Delay and prejudice — Whether High Court’s discretion judicially exercised.

Flynote
Practice and Procedure — Condonation — Late Filing of Record — Audi Alteram Partem — Court of Appeal Rules, 2006, Rules 5 and 15 — Duty to Serve Timeously — Procedural Fairness — Costs.

FLYNOTE
Civil Procedure – Appealability – Lapse of appeal – Default judgment – Ejectment – Jurisdiction of Subordinate Court –
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Title to land – Construction of statutes – Interpretation of procedural rules – Rescission of default judgments – Harmonisation of statutory schemes.

FLYNOTE
Arbitration – Interim interdict – Jurisdiction of court notwithstanding arbitration clause – Independent guarantee – Fraud exception – Arbitration Act 1980, ss 4 and 22 – Relationship between guarantee and main contract – Interlocutory relief pending arbitration – Misrepresentation as ground for interdict

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Postponement of hearing – Death of counsel – Staff shortage in Attorney General’s office – Replacement counsel unable to
prepare due to pre-engagement in criminal trial – Application to postpone appeal – Concession on costs – Whether costs order suffices to cure prejudice.

FLYNOTE
Public Service – Administrative Law – Rationality – Grading of civil service posts – Whether decision not to upgrade appellant from Grade I to Grade J under Circular No. 7 of 2013 irrational – Whether appellant functioned as Head of Department notwithstanding formal designation – Judicial review – Applicability of rationality standard in constitutional context

FLYNOTE
Voluntary associations Law — Audi alteram partem — Suspension and termination of membership from a police staff association — Whether the refusal to grant an oral hearing violated the duty of fairness — Whether show-cause procedure sufficient where serious reputational harm results — Whether decision taken by a properly constituted body with requisite quorum — Procedural and substantive irrationality — Review and setting aside of decision.

FLYNOTE
Immigration – Naturalisation – Delay in conferral of citizenship – Legitimate expectation – Mandamus – Ministerial discretion – Judicial deference – Whether High Court usurped Minister’s statutory function – Lesotho Citizenship Order 1971, ss 9(2), 12(2), 14, 16(1)

FLYNOTE,
Civil Procedure – Leave to appeal – Section 17 of the Court of Appeal Act 1978 – Whether leave to appeal required from decision of High Court in review matters – Distinction between appellate and original jurisdiction – Decision in Ntoetsi Tau-Tona v Maphoka Ramoea overruled – Application for leave struck off roll – No order as to costs.

FLYNOTE
Administrative law – Public service – Rationality – Regrading under Circular No. 7 of 2013 – Whether exclusion of officers performing substantially similar duties to regraded counterparts was rational – Distinction between unreasonableness and irrationality – Constitutional imperative of lawful, fair, and rational administrative action – Whether High Court erred in refusing relief and costs.

FLYNOTE
Review application – Failure to annex judgment sought to be impugned – Application procedurally defective and legally unintelligible – Right to fair hearing under section 12 of the Constitution – Motion proceedings require intelligibility and coherence – Affidavit must disclose cause of action and attach impugned decision – Withdrawal of defective application – No order as to costs.

FLYNOTE
Land Law—Unjust enrichment—Bona fide possessor—Compensation for improvements—Measure of enrichment—Retention of rental income—Set-off—Discretion of the court—Limits of discretion—Condonation—Whether late appeal permissible.

FLYNOTE
Public Service – Termination of Fixed-term Contracts – Arbitration Clause – Jurisdiction of the High Court – Interim Interdicts – Arbitration Act 1980 (Lesotho), ss 4, 22

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Criminal law—Murder—Self-defence—Constructive intent—Sentencing discretion—Appeal against conviction and sentence—Whether appellant acted in private defence—Whether sentence of 18 years’ imprisonment excessive.

FLYNOTE
Spoliation – Standing – Deregistered company – Access to land – Whether value of despoiled property limits jurisdiction of subordinate court – Whether individual director had standing to sue in personal capacity – Whether refusal of leave to appeal was correct

FLYNOTE
Civil Procedure – Appeal – Lapsed appeal – Rules of Court of Appeal 2006, rules 4, 5(1), 5(3) and 15(3) – Application for declarator and condonation – Misconceived application – Duty of legal practitioners – Costs de bonis propriis.

FLYNOTE
Civil Procedure – Postponement of Appeal – Consent Order – Non-joinder of Proper Parties – Capacity to Sue – Necessity for Clarification of Record – Scrambled Proceedings – Discretion of Appellate Court.

FLYNOTE
Civil Procedure – Condonation – Appeal – Functus officio – Execution – Whether High Court may set aside writ of execution inconsistent with its original judgment – Application to amend writ – Delay in lodging appeal – Reasonableness of explanation – Prospects of success – In duplum rule – Legal finality.

FLYNOTE
Civil Procedure – Appeal – Reinstatement of appeal – Application defective – Rule 4(3) of the Court of Appeal Rules – Absence of fresh grounds of appeal consistent with certified points of law – Withdrawal of application without tendering costs – Whether costs should follow the withdrawal – Whether the first respondent is entitled to wasted costs

FLYNOTE
Delict—Vicarious liability—Police misconduct—Unprovoked assault by police officer—Plaintiff assaulted in public by officer in uniform driving police van—Whether Commissioner of Police vicariously liable for tortious acts of unidentified officer—Whether sufficient prima facie case made—Relevance of failure to cross-examine—Deviation cases and
2
2
"close connection" test—Absolution from the instance—Whether justified.

FLYNOTE
Appeal – Labour law – Application for leave to appeal – Labour Appeal Court having granted appellant full relief sought – Whether remittal to DDPR justified – No reasonable
2
prospects of success shown – Application dismissed with costs.

FLYNOTE
Judgment — Interpretation of Court Orders — Functus Officio — Judicial finality practice — Final judgment — Whether Court may alter or clarify judgment after it has been delivered — Principle of functus officio — Whether clarification amounted to alteration of substance.

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Police – Malicious arrest – Claim for damages – Special plea of prescription – Police Service Act 1998, s 77 – Whether High Court entitled to determine prescription without hearing oral evidence – Failure to adduce evidence on interruption of prescription – Whether remittal appropriate – Use of “torture” in absence of supporting evidence.

Land law—Jurisdiction—Whether dispute falls within statutory jurisdiction of the Land Court—Meaning of “concerning land” under section 73 of the Land Act 2010—Characterisation of claims sounding in contract or delict as opposed to vindicatory actions—Claim based on familial arrangement concerning proceeds of sale of land—Proper forum for adjudication.

FLYNOTE
Customary Law – Succession – Jurisdiction – Declaration of customary heir – Whether prior family arbitration under section 14(4) of the Laws of Lerotholi is a jurisdictional precondition – Distinction between questions of status and property disputes – Misinterpretation of section 14(4) – High Court's constitutional authority to declare heirship

FLYNOTE
Civil Procedure – Leave to appeal – Interlocutory order – Amendment of pleadings – Piecemeal appeals – Withdrawal of application – Costs.

FLYNOTE
Constitutional and Administrative Law — Employment Law — Public Service — Termination by Notice — Clause 4 “No Fault” Termination Clause — Whether Audi Alteram Partem Applicable — Whether Termination Implied Misconduct — Jurisdictional Overreach in Granting Relief Not Sought — Freedom of Contract — Sanctity of Contract

FLYNOTE
Company Law – De Facto Directorship – Validity of Round Robin Resolution – Procedural Standing – Security for Costs – Appeal Procedure – Judicial Discipline – Companies Act 2011 (Lesotho), ss 56, 58 – Court of Appeal Rules 2006, Rule
2
8(1) and Rule 15 – Effect of Non-notification of Directors – Majority and Dissenting Opinions.