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.

Civil Procedure – Rescission of default judgment – Failure to enter appearance to defend – Rule 27 (old Rules) and Rule 45 of the High Court Rules 1980 distinguished – Requirement of formal condonation application for delay – Misguided refusal by court a quo to consider “good cause” under Rule 27(6)(c) – Judicial discretion to rescind – Court of Appeal’s power to interfere where discretion not properly exercised – Distinction between authority to sue and validity of power of attorney emphasized – Resolution to litigate not equivalent to proper authorization to act – Default judgment rescinded and matter remitted to High Court for hearing on the merits.

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.

Appeal — Punitive Costs — Misjoinder — Audi Alteram Partem — Judicial Discretion — Appellate Intervention

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.

Family law – Custody of children – Best interests of the child – Paramountcy principle – Litigation delays and procedural irregularities – Appeal struck off by consent owing to defective and confused record – Duty of practitioners to conduct custody litigation with diligence and clarity.
Procedure – Appeals – Leave to appeal – Defective and incomplete record – Confusion as to judgment appealed against – Grounds of appeal unrelated to impugned order – Effect of sloppy litigation on administration of justice.
Practice and conduct – Role of lawyers and adjudicators – The best interests of the child as a guiding principle – Paramountcy of children’s welfare does not excuse procedural negligence – Importance of disciplined, responsible and coherent advocacy in family disputes.

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.

Preliminary Objection – Must be on a pure point of law – Objection intertwined with contested facts – Jurisdiction and right to be heard cannot be overtaken by events – Divorce petition – Death of petitioner – Application for extension of time to set aside ex parte judgment.

Civil Procedure – Burden of Proof – In civil cases, the Plaintiff bears the burden to prove claims on a balance of probabilities; allegations of fraud or forgery require cogent and compelling evidence.

Contract – Existence of Agreement – Where no documentary evidence establishes a contractual relationship between the parties, the Court cannot infer an agreement to pay for goods merely from delivery orders or oral assertions.

Conspiracy – Unlawful Release of Goods – To establish civil conspiracy, a Plaintiff must prove concerted action and unlawful intent; mere suspicion or irregularities in documents without proof of collusion are insufficient.

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
Summary judgment – Appealability – Interlocutory order – Financial Consumer Protection Act 2022 – Counterclaim – Procedural fairness – Leave to appeal – Summary dismissal – Costs.

FLYNOTE
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.

FLYNOTE
Appeal — Condonation — Costs — Appeal struck off — Appropriate scale of costs — Late withdrawal of appeal — Breach of Court Rules — Punitive costs — Attorney and client scale.

FLYNOTE
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.