Commercial

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.

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.

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.

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.

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.

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.

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.

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

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.

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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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.

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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

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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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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.

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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

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
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.

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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.

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

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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
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8(1) and Rule 15 – Effect of Non-notification of Directors – Majority and Dissenting Opinions.