Constitutional Law

Lephoto v The Directorate of Corruption and Economic Offences (Const. No. 11/2017) [2022]LSHC 09 (17 March 2022);

Share
Search Summary: 

                                                       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.

             

 

 

 

IN THE HIGH COURT OF LESOTHO

 

HELD AT MASERU                       Constitutional Case No. 11/2017

 

In the matter between:

 

`MAHELENA LEPHOTO                                           APPLICANT

 

AND

 

THE DIRECTORATE ON CORRUPTION

AND ECONOMIC OFFENCES                         1ST RESPONDENT

THE MINISTER OF LAW AND

'Mei V Mr Justice Thamsanqa Nomngcongo NO (Const/06/2018) [2021]LSHC 50 (21 October 2021);

Share
Search Summary: 

Summary

Constitutional rights - right to fair trial and right to equal protection of the law - applicant convicted and sentenced by Magistrate Court - challenged both conviction and sentence on review - failure by a Judge to render a reserved judgement until sentence served in full - its effect on fair trial rights and protection of the law - Judicial immunity  - whether the omission gives rise to a claim for damages under section 22 of the Constitution.

 

 

 

IN THE HIGH COURT OF LESOTHO

                                (Constitutional Jurisdiction)

 

HELD AT MASERU              CONSTITUTIONAL CASE NO.06 OF 2018            

In the matter between

 

LEBOHANG ‘MEI                                                APPLICANT

 

AND

 

MR. JUSTICE THAMSANQA NOMNGCONGO NO    1st RESPONDENT

HONOURABLE CHIEF JUSTICE OF LESOTHO        2nd RESPONDENT

Lekunya V Ministry of Foreign Affairs & International Relations (Const/003/2020) [2021]LSHC 49 (19 October 2021);

Share
Search Summary: 

Summary

Diplomats based in South Africa - differently salaried from diplomats in other missions-challenge on the differentiation on constitutional grounds - whether approach appropriate where a complaint may adequately be addressed under Administrative Law

Exercise of jurisdiction of the High Court under Section 22 of the Constitution - principles guiding the excise of discretion under this provision restated - Court declines jurisdiction.

 

 

 

 

IN THE HIGH COURT OF LESOTHO

 

HELD AT MASERU                                      CONST.NO.003/2020

 

In the matter between

 

JANE LEKUNYA                                                  1ST APPLICANT

SEKOBOTO MOLISE                                           2ND APPLICANT

SERA MPHAFI                                                   3RD APPLICANT

Hlalele v His Honourable the Prime Minister Dr. M. Majoro (C of A (CRI) 8/2021) [2021] LSCA 8 (14 May 2021);

Share
Search Summary: 

SUMMARY

Constitutional law – appointment of a principal secretary contrary to section 139(1) of the Constitution – whether such appointment valid. Whether appellant was appointed by the new Prime Minister.

Held: there was no valid appointment and appeal dismissed with costs.

 

IN THE COURT OF APPEAL OF LESOTHO

 

C OF A (CIV) NO.09/2021

CIV/APN/272/21

In the matter between: -

 

MOTHABATHE HLALELE                                           1ST APPELLANT

AND

THE HONOURABLE PRIME MINISTER

OF LESOTHO   DR MOEKETSI MAJORO                    1STRESPONDENT

RETSÉLISITSOE MOHALE                                           2ND RESPONDENT

Home Affairs Ex Workers V The Principal Secretary Ministry of Home Affairs (Const 19/2020) [2021]LSHC 09 (11 February 2021);

Share
Search Summary: 

SUMMARY

 

Constitutional law – claim for renewal of fixed term contracts or alternatively, declarator that failure to renew contracts violates rights to property in the form of salary – fixed term contracts having expired automatically – clauses in contracts stipulating that resolution of disputes thereof to be made in accordance with the Labour Code – whether the claims implicate violation of the Bill of Rights – reliance on section 12 (8) and doctrine of legitimate expectation – no basis found to have been  established for exercise of constitutional jurisdiction and reliance on doctrine of legitimate expectation – Constitution 1993, section 12 (8); Government Proceedings and Contracts Act, 1965 section 5; Public Service Act, 2005 section 7; Public Service Regulations, 2008 regulation 20.

 

 

 

 

 

IN THE HIGH COURT OF LESOTHO

 

 

Held at Maseru

CONSTITUTIONAL CASE NO.19/2020

 

In the matter between:

 

HOME AFFAIRS EX WORKERS                                         APPLICANTS                                                  

                                        

 And

 

THE PRINCIPAL SECRETARY                                               

Phaila V Director of Public Prosecution (Const 24/2018) [2021]LSHC 07 (18 March 2021);

Share
Search Summary: 

Constitutional litigation – Request to Subordinate Court for reference of a substantial  question of law as to the interpretation of the constitution to the High Court –  Section 128 of the Constitution – Request to Subordinate Court for reference of a question as to the contravening of the provisions of section 4 to 21 (inclusive) of the Constitution to the High Court pursuant to section 22(3) - Whether our Constitutional Court has jurisdiction to review refusal of such requests – Grounds for review of decisions and/or proceedings of subordinate courts - Whether provisions of the Prevention of Corruption and Economic Offences Act creating new statutory offences and regulating their prosecution oust the Director of Public Prosecution’s constitutional competence to prosecute said offences without the involvement of the Directorate on Corruption and Economic Offences – Whether the Prevention of Corruption and Economic Offences Act gives the Directorate on Corruption and Economic Offences exclusive authority to investigate offences created by the said Act and takes away the constitutional authority of the police to initiate and conduct such investigations.

 

 

 

 

 

IN THE HIGH COURT OF LESOTHO

(Exercising its Constitutional Jurisdiction)

 

Constitutional Case No.24/2018

In the matter between:

SEFIRI PHAILA                                                             APPLICANT

 

And

 

DIRECTOR OF PUBLIC PROSECUTIONS                 1ST RESPONDENT

HER WORSHIP MAGISTRATE RANTARA               2ND RESPONDENT

DIRECTORATE ON CORRUPTION &

White Horse Party v Judicial Service Commission (CC 16/2020) [2020] LSHC 57 (11 December 2020);

Share
Search Summary: 

Constitutional Law – Locus standi in judicio of a political party to institute a constitutional application in respect of the appointment of Judges of the High Court – When is a decision of the Judicial Service Commission made in the absence of any member valid – Interpretation of section 132(10) of Constitution and rule 5(2) of the JSC Rules

IN THE HIGH COURT OF LESOTHO

(Exercising Constitutional Jurisdiction)

 

                                                                                                Constitutional Case No.16/2020

In the matter between:

WHITE HORSE PARTY                                                                APPLICANT

And

JUDICIAL SERVICE COMMISSION                                        1ST RESPONDENT

Transformation Resource Centre v The Council of State (C of A (Cons) 26/20) [2020] LSCA 31 (31 October 2020);

Share
Search Summary: 

Intersection between s 20 and s66 (4) of the Lesotho Constitution, whether a civil society organisation entitled to participate in the selection of members of the Independent Electoral Commission.  Held that it was not.

 

 

 

IN THE COURT OF APPEAL OF LESOTHO

 

CONSTITUTIONAL CASE NO.26/2020

 

In the matter between:

 

TRANSFORMATION RESOURCE

CENTRE & 2 OTHERS                                          APPELLANTS

 

AND

 

THE COUNCIL OF STATE AND 62 OTHERS      RESPONDENTS

 

               

CORAM:          Dr Mosito, P

Damaseb, AJA

Dr Musonda, AJA

The Principal Secretary, Ministry of Public Service v Tsupane (C of A (CIV) 11/20) [2020] LSCA 25 (30 October 2020);

Share
Search Summary: 

Constitutional Law- Discrimination- whether the two categories of Secretaries had the same status- Executive Secretaries being permanent and pensionable staff- Ministerial secretaries being contract staff whose contracts are terminable by the termination of a Minister’s position or regime change- whether differential treatment comes to this Court with a sense of Constitutional invalidity- the test is identification of objectively determinable characteristics of the difference in conditions of service.

 

 

IN THE COURT OF APPEAL OF LESOTHO

                                                                                                               C OF A (CIV) NO: 11/2020

                                                                      CONST CASE: 12/2018

In the matter between:

 

THE PRINCIPAL SECRETARY,

MINISTRY OF PUBLIC SERVICE                                           1ST APPELLANT

 

Metsing v The Director of Public Prosecutions (CC 27&28/2018) [2020] LSHC 46 (12 November 2020);

Share
Search Summary: 

Constitution of Lesotho 1993 - Supremacy of – under its section 2 – Lesotho is a dualist state under international law. Any treaty, protocol or any political inter partes agreement in order to be enforceable in Lesotho must be consistent with the provisions of the Constitution of Lesotho – Noble motives are not relevant in considering enactment, a treaty, protocol or inter partes agreement cannot be elevated to a status of law without emasculating the authority and supremacy of the Constitution.

 

Where political leaders sign a Memorandum of understanding (MOU) without enactment of such by parliament of Lesotho, such MOU cannot be elevated to a status of law.  It rests solely on good faith of the parties to the agreement.

 

Where Clause 10 of MOU signed by a Representative of Government of Lesotho and a Leader of the Opposition has a salutary effect of restraining or hamstringing the powers and discretion of the Director of Public Prosecutions (DPP) under Section 99 (1) (a) and (b) of the Constitution to institute criminal proceedings against any person, such clause 10 of the MOU – its noble motive to facilitate the ongoing reform process in Lesotho notwithstanding – it must pass the muster of consistency as provided by Sections 2 (The Supremacy of the Constitution clause)  and 99 of the Constitution.

 

All International Instruments are founded on good faith and honesty.  Courts cannot, while noting their essential importance, enforce good faith as if it is a law.  Courts are Courts of law and not of equity or political expediency.  It would fail to make a judicial sense to declare clause 10 (inelegantly drafted as it is) as being consistent with the stated provisions of the Constitution.  Coined by a French jurist Montesquieu “The Spirit of the Law” in the 18th Century, the doctrine of Separation of Powers restrains or insulates the Court of law from entering the “turf” of state policy or influencing matters of importance such as the ongoing Reform process so vital to the peace and stability of our Kingdom.  This Court’s decision should not be interpreted as “breaking” or dislocating the reform process now on going in Lesotho.

 

As a unitary state, all three main organs of state – Legislature, Executive and Judiciary must operate in unison and never at cross-purposes. Finally, the Court held as follows:

 

  1. The Applicants had a direct and substantial interest in the matter and ought to have been joined and consequently the relief for their intervention is granted;
  2. The MOU is not a SADC Agreement or Treaty with Lesotho and international law is not applicable over it;
  3. Assuming that the MOU was a Treaty, it would not spontaneously create enforceable rights and obligations in a dualistic Lesotho where this could only be so upon the domestication of any instrument of international law through an Act of Parliament;
  4. Clause 10 of the MOU, remains unconstitutional as it has already pronounced itself in the previous consolidated cases since it undermines the powers of the DPP under Section 99 of the Constitution, Section 1 (1) of same which makes Lesotho a sovereign democratic State and Section 2 which renders the Constitution to be the supreme law of the Kingdom.  

IN THE CONSTITUTIONAL COURT OF LESOTHO

(Sitting in its Constitutional Jurisdiction)

                                                 CONSTITUTIONAL CASE NO/27& 28/2018

 

In the matter between: -

 

MOTHETJOA METSING                                                      1ST APPLICANT

SELIBE MOCHOBOROANE                                              2ND APPLICANT    

AND

 

Pages