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Citation
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Judgment date
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| June 2022 |
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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
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9 June 2022 |
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9 June 2022 |
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SUMMARY
Civil procedure – Application for stay of execution – Requirements for - application for leave to appeal and stay of execution - The order of the Labour Appeal Court is stayed pending the final determination of the appeal - Application for leave to appeal to be proceeded with before Court of Appeal comprising a panel of at least three judges - Costs of application to be costs in the appeal
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3 June 2022 |
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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
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3 June 2022 |
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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
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2 June 2022 |
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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
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2 June 2022 |
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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
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1 June 2022 |
| May 2022 |
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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
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27 May 2022 |
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SUMMARY:
Contempt of court-locus standi for contempt of court-jurisdiction of the court in contempt proceedings. Complying with an unlawful court order
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26 May 2022 |
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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
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24 May 2022 |
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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
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23 May 2022 |
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SUMMARY
Administrative Law – Mootness– unreasonableness as ground for review –Appeal not to be disposed off on account of mootness as costs issue still potentially remain to be considered in the appeal– No factual basis for the finding of unreasonableness in casu – Appeal dismissed with costs – Judgment of the High Court confirmed
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13 May 2022 |
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Summary
Police Association and some police officers suing Commissioner of Police in no less than four related applications for promoting certain police officers to senior ranks allegedly on his own without involvement of Police Appointments and Promotions Board, as well as suing the promoted officers, to set aside promotions as unlawful and contrary to law
After initially filing notices of intention to oppose, Attorney General withdrawing such notices believing defendants had no case
Presiding Judge consolidating the cases and at hearing raising mero motu the lack of standing of private legal practitioner engaged by Commissioner of Police and promoted officers after withdrawal of Attorney General and after hearing argument thereon finding such practitioner not entitled to represent them under the aegis of Attorney General’s office but not deciding whether such representation in defendants’ individual capacity not permissible in the circumstances
Having found against representation by private legal practitioner, presiding Judge proceeding to determine merits of applications without hearing the parties
On appeal Held – presiding judge not having decided whether or not representation by private legal practitioner was altogether not permissible on the facts of the case, declining to decide the issue and leaving it to the High Court to do so on remittal of the cases
Held further that presiding judge fell into error in determining merits without hearing the parties, and accordingly judgments and orders of High Court set aside and cases remitted to be heard and determined by another Judge, subject to him or her giving directions to ensure any outstanding pleadings are filed and litigation proceeds in the ordinary way
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13 May 2022 |
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SUMMARY
During criminal proceedings preceding the actual trial of accused most of who have been in custody for about four years, thereby giving cause for the trial to commence and proceed with reasonable speed and in light of several postponements, presiding judge, the Honourable Chief Justice conducting an inquiry in terms of s 12(4)(b) and (c) of the Speedy Court Trials Act 2002 (No. 9 of 2002)and finding lead prosecution counsel guilty of transgressions under said section and excluding him from further appearing in case
Crown, through Director of Public Prosecutions, being aggrieved by the conduct of the proceedings to that stage and by the exclusion of lead counsel filing for recusal of presiding judge
Presiding judge declining to recuse himself and Director of Public Prosecutions appealing against decision excluding lead prosecution counsel and decision declining recusal
On appeal: Held presiding judge erred in applying provisions of Speedy Court Trials Act and excluding lead prosecution counsel; Held further on facts and circumstances of case before him, presiding judge should have recused himself
Also raised on appeal - that the trial of the accused be assigned to a foreign judge consequent upon earlier decision of Government and Judicial Service Commission that trial of accused and others in high-profile and sensitive cases be assigned to foreign judges appointed for that purpose
Appeal Court, noting that a number of such cases have already been assigned to local judges, declines to order that case be allocated only to a foreign judge and leaves decision to relevant authorities as to which judge to preside
Appeal by Director of Public Prosecutions upheld on basis presiding judge erred in decision under Speedy Court Trials Act and in refusing to recuse himself, and directing that matter be placed before another judge, foreign or local, as may be decided
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13 May 2022 |
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SUMMARY:
Application for leave to appeal -- leave granted -- appeal upheld -- matter remitted for completion to the Leribe District Land Court for completion
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13 May 2022 |
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Summary:
The High Court, exercising its ordinary civil division, declined to hear matter on the basis that it was commercial in nature and that court therefore lacked jurisdiction. The court relied on Rule 10 1(c) and (m) of the High Court Commercial Court Rules, governing commercial matters
Held that the Commercial Court is a court created as a division of the High Court of Lesotho and is not a court separate from the High Court. Therefore, the High Court had jurisdiction
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13 May 2022 |
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SUMMARY
Ownership - Movable property - Competing claims - Of purchaser motor vehicle and
Executrix of Estate - Purchaser of vehicle through bank - Executrix of Estate of deceased estate claiming ownership relying on hearsay evidence of statements by deceased and supporting affidavits that deceased had told the deponents that she had bought the motor vehicle purchaser - Executrix of Estate failing to establish ownership as it had relied on hearsay and circumstantial evidence
Circumstantial evidence - The rules of induction specially applicable to circumstantial evidence discussed and applied – Appeal dismissed with costs
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13 May 2022 |
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SUMMARY
Application for condonation- Eight (8) years delay in noting an appeal- the delay and frailty of the reasons for the delay unprecedentedly long and outlandish respectively- interrogation of the merits or prospects of success not desirable- Application dismissed and appeal struck from the roll with costs
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13 May 2022 |
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SUMMARY:
The appellants who were appointed on contract in the Lesotho public service in terms of a written contract agreed to refer any dispute arising from the implementation or execution of the employment contract to binding arbitration in terms of the provisions of the Public Service Act 2005 as amended. When the Crown determined that the contracts had terminated, they approached the High Court to seek declaratory and review relief instead of asking the court under s 4 of the Arbitration Act 12 of 1980 to not bind them to the arbitration agreement. The High Court declined jurisdiction because the appellants were bound by the agreement to refer the dispute to arbitration. Appeal against the High Court’s judgment dismissed, with costs
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13 May 2022 |
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SUMMARY
Section 16 I1) of the Court of Appeal Act 1978, application for leave to appeal against an order of the High Court in interlocutory proceedings. High Court having granted interlocutory order against objection matter was re judicata, there was non-joinder and non-compliance with rule 8(19) of the High Court rules. On appeal court sets out circumstances in which it will grant leave to appeal against an interlocutory order
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13 May 2022 |
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SUMMARY
Application for condonation to file answering affidavit- Judge rejecting the application – Judge making an order in default – The discretion should be exercised judiciously – The credibility of the explanation should be interrogated before rejecting the application
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13 May 2022 |
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SUMMARY
Practice – Appeal - Rule 52 of the High Court Rules 1980 – The appeal should have been set down within four weeks - appeal is dismissed with costs
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13 May 2022 |
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13 May 2022 |
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Summary
An appeal against the part of a judgment dealing with the quantum of damages, cannot be properly heard without a fully transcribed record of the proceedings before the lower court. This is especially so because the appellant relies on oral evidence, not reflected in the record. The appeal is struck off the record
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13 May 2022 |
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SUMMARY
High Court convicted appellants of assault with intent to cause grievous bodily harm where victim of assault died as a result of injuries from the assault; Court sentenced each appellant to fifteen years imprisonment
Appellants initially appealed against sentence only; After Crown cross-appealed against verdict and asked Court to find appellants guilty of murder, appellants then appealed against conviction and sought acquittal of appellants
Held the proper verdict was murder with constructive intent founded on the doctrine of common purpose; verdict accordingly altered
Extenuating circumstances found to exist and after considering mitigating factors sentence reduced from fifteen years to ten years for each of the appellant
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13 May 2022 |
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SUMMARY
A plaintiff may apply for summary judgment in terms of Rule 28 of the Rules of Court after the filing of a plea by the defendant. A vague allegation that the amount of interest accumulated by an outstanding debt does not constitute a bona fide defence under Rule 28
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13 May 2022 |
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Summary
A public officer challenging a decision dismissing him by way of review in the High Court. Court of Appeal restating that such complaints must be pursued under the grievance procedure in the Public Service Act 2005
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13 May 2022 |
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Summary
The Government of Lesotho’s (GoL) failure, amongst others, to comply with Reg.32(1) of the Public Service Regulations 2008 requiring the principal secretary of the Public Service to consult receiving ministries when a transfer of a public officer is contemplated was held by the High Court to be unlawful and therefore reviewed and set aside. On appeal the GoL argued that the regulation was not mandatory in every case and that the High Court erred in so concluding
Held on appeal that the High Court did not err, and the appeal dismissed with costs
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13 May 2022 |
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Summary:
The appellant challenged his transfer in the High Court. Without any answering affidavit having been filed and without hearing submissions by counsel, the Court refused the application. No proper reasons for the order were furnished. The appeal cannot proceed meaningfully, or at all. The matter is remitted back to the High Court
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13 May 2022 |
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SUMMARY:
Jurisdiction— under rule 84 of land court rules, the land court has jurisdiction to review its own decision—a litigant, with proven interest may apply to the same court for review under grounds stated in rule 85 and the court may vary or reverse its earlier decision- appellant having established acceptable grounds of review, appeal allowed
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13 May 2022 |
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SUMMARY
Practice - Judgments and orders - Summary judgment — Appeal against granting of — Court hearing application for summary judgment should be slow to defeat purpose of summary judgment procedure by granting rescission, where satisfied that defendant has no bona fide defence
Summary judgment — Liquidated amount — Appeal against granting of — Court hearing application for summary judgment should be slow to defeat purpose of summary judgment procedure by granting leave to appeal, where satisfied that defendant has no bona fide defence
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13 May 2022 |
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SUMMARY
Administrative law – Jurisdiction -Review of administrative act -Application for review of a decision of the Minister of Trade and Industry not to renew the contract of the Chief Executive Officer of the Lesotho National Development Corporation
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13 May 2022 |
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SUMMARY
Ambassador of Lesotho to Italy remaining in Rome for a month after his tour of duty and tenure came to an end; Ambassador claiming he was entitled to salary for the one month on grounds that he carried on duties as ambassador during that month; Ministry contesting that he performed any duty as ambassador and his contract of engagement having come to an end he was not entitled to any salary; Ambassador failing to prove that he did any work and therefore entitled to salary
High Court having dismissed his application with costs, on appeal, Held appeal should be dismissed; On costs order of High Court set aside and substituted with one ordering each party to bear its own cost; Each party also ordered to bear its costs of appeal
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13 May 2022 |
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13 May 2022 |
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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
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12 May 2022 |
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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
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12 May 2022 |
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12 May 2022 |
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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)
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11 May 2022 |
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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
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11 May 2022 |
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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
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10 May 2022 |
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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
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5 May 2022 |
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5 May 2022 |
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5 May 2022 |
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5 May 2022 |
| April 2022 |
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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
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29 April 2022 |
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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
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28 April 2022 |
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27 April 2022 |
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27 April 2022 |
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27 April 2022 |
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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
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27 April 2022 |