Faculty of Law

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    The Advent of Coalition Politics and the Crisis of Constitutionalism in Lesotho
    (2017-01-08) 'Nyane, H
    The advent of coalition politics in the aftermath of the inconclusive 2012 election brought with it fresh challenges to constitutionalism in Lesotho. The challenges started with the process of the formation of government, sustenance of a coalition, and much more importantly, the executive powers of the office of Prime Minister. The country transitioned into the era of coalition politics with the same constitutional and legal framework which undergirded government in a single-party majoritarian setup. It did not take long until the country was plunged into a constitutional crisis which manifested itself through a stand-off between the Prime Minister and the Deputy Prime Minister. The crisis led to the collapse of the coalition government, barely two years into its normal electoral cycle. The purpose of this chapter is to analyse the nature of this constitutional crisis by studying the various constitutional episodes which characterised this crisis in 2014. The chapter contends that while some of these episodes may qualify to be called ‘constitutional crises’, not all incidences of political disagreement amounted to that.
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    An analysis of how human rights violations affect development in Lesotho
    (National University of Lesotho, 2025-05-31) Molikoe, Nthabeleng Magret
    This study critically examines the intricate impact of human rights violations on development in Lesotho. It demonstrates that human rights violations are not only perpetuated by direct infringements of fundamental rights but also by the state’s failure to ensure the justiciability of all human rights for effective enforcement. Socio-economic and cultural rights are considered non- justiciable in Lesotho and this means that their interdependence with civil and political rights is overlooked. Additionally, discriminatory practices entrenched in customary law are retained and shielded by the Lesotho Constitution of 1993. The system of male primogeniture, which is one of the practices protected by culture, creates gender inequalities in society. Men are privileged to the detriment of women, and this consequently undermines the ability of women to effectively contribute to their societies in promoting development. It highlights that Lesotho has traditionally been classified as a dualist state. There have however,been trends in the use of monism and this has conversely repudiated Lesotho’s strict categorisation as a dualist state. Nonetheless, it is argued that the reliance on both theories of monism and dualism is presently inadequate for ensuring the protection of human rights and compliance with international human rights instruments. Lesotho is a state party to a plethora of treaties, and consequently has to comply with its obligations. To facilitate this, it is important that Lesotho prioritises the protection human rights and discard the strict adherence to the monist-dualist dichotomy, which has proven to hamper the protection of human rights. Moreover, the study integrates a comparative perspective with South Africa and Kenya to draw valuable lessons and strategies for curbing human rights violations that impact on development. These countries experiences’ highlight the complex relationship between the protection of human rights and the effects of such violations on development. This study urges inter alia, the government of Lesotho to enshrine all socio-economic and cultural rights as judicially enforceable rights and repeal all discriminatory practices that are protected by customary law.
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    An analysis of personal liability of company officers in money laundering offences
    (National University of Lesotho, 2025-05) Mosoeunyane, Liteboho Phillip
    Lesotho is faced with the challenges of dealing with individuals who commit money laundering offences under the guise of companies, hoping to hide behind the companies’ separate legal personality principles. Section 25 of the Money Laundering and Proceeds of Crime Act 2008, as amended, criminalises money laundering committed by both natural and legal persons. It is established law in Lesotho under Section 9 of the Companies Act 2011 that companies, once duly incorporated, have a separate legal personality that affords them the capacity to sue and be sued in their own names, independent of their incorporators. Section 16 of the Constitution of Lesotho 1993 recognises the freedom of all persons to associate, even to the extent of incorporating a company, provided the contemplated incorporation is for a lawful purpose. Individuals in Lesotho are free to exercise their right to association and incorporate a company either individually or as a collective. The law recognises that persons so associatin g to establish a company may not be involved in the day-to-day management of the company; rather, they may vest such responsibility and authority in company officers. The officers have a fiduciary duty to act in the best interest of the company and are held personally accountable for a breach of such duty. The right to freedom of association to incorporate companies and enjoy the benefits that arise from separate legal personality is limited to the engagement in a lawful enterprise. Therefore, where persons constitute themselves into a syndicate and incorporate a company to advance a money laundering enterprise, the law does not permit that.hese officers of the company are the ones that form the requisite mensrea of the company. Therefore, the mental requirement of forming an intention must be ascribed to individ ua ls authorised to act on behalf of the company. To identify these company officers, the princip le of lifting the corporate veil is applied. In the quest to analyse circumstances where the officers of the company are personally liable for corporate crimes in money laundering offences, the study inevitably considers the exceptions to the separate legal personality principle. The study adopts a doctrinal approach that involves consideration of existing literature on the subject matter. It interrogates the extent to which the law permits companies to retain their separate legal personality and circumstances where the veil of incorporation could be lifted to identify company officers who committed money laundering offences and to hold them personally liable for such offences.
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    The Analysis of the Lawfulness of the Restitution of Conjugal Rights Order in Lesotho Divorce Law
    (National University of Lesotho, 2020-05-01) Mateisi, V. V.; Mrs. Mosito
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    An assessment of the effectiveness of the International Court of Justice in the maintenance of International peace and security
    (National University of Lesotho, 2024-07) Mokoatle, Bolelang Irene
    The United Nations system was born out of global strife and suffering caused by the two devastating world wars. Since the end of World War I one of the main concerns of the international community was the establishment of institutions that would work to maintain international peace and security. The commitment by states in the UN Charter not to resort to armed conflict is a testament of the desire of the international community to cherish peace. The United Nations itself was designed to ensure that it has the capacity to safeguard peace. While disputes between states are inevitable, the UN has mechanisms in place to resolve these disputes peacefully. One such mechanism is the International Court of Justice (ICJ). Established as the principal judicial organ of the UN, the Court has an important role of resolving legal disputes between states. Supporting the Court’s work is the Security Council which not only has the power to recommend referral of disputes to the ICJ or enforce the decisions of the Court but also share the responsibility to preserve international peace and security with the Court. The UN system has however shown some cracks. The recent inability to prevent a costly war in Ukraine and Gaza as well as failure to bring to a halt the suffering of the Rohingya Muslims facing persecution in Myanmar brings spotlight to the UN system, including the ICJ. This study therefore examines the effectiveness of the ICJ in resolving disputes that threaten international peace and security. The study examines the volume of cases brought to the Court’s attention or order to determine whether this forum has been effectively used. It also assesses the rate of states’ compliance with the ICJ’s decisions as well as the extent to which there has been enforcement action in cases where there is non-compliance. The study argues that the ICJ has notsucceeded in its role of resolving disputes that threaten international peace and security. It makes recommendations on some reforms that can be implemented in order to make the Court an effective organ that can contribute to the realisation of one of the UN’s most important objectives
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    Assignment of functions to local authorities in Lesotho
    (UTS ePress, 2016-12) Nyane, H.
    In Lesotho the adoption of the new constitution in 1993 made provision for local development. These constitutional provisions were only operationalised in 1997 through an Act of parliament (Local Government Act 1997). The question of how functions are assigned between the central and local governments has always been an area of dispute. The Act attempted to demarcate the assignments through the Schedules to the Act which embody the functions of local authorities at various levels – community councils, urban councils and district councils. However, local development and service delivery continue by and large to be undertaken by central government despite the demarcation. The purpose of this paper, therefore, is to critically analyse the challenges of assignment of functions to local authorities in Lesotho. The paper contends that as the assignment of functions is integral to decentralisation in Lesotho, intergovernmental relations and assignment of functions should be incorporated into the country’s constitution.
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    Attaining effective and speedy resolutions of unfair dismissal disputes in Lesotho
    (National University of Lesotho, 2023-06-19) Ntaitsane, Mamolefi Anacletta; Lephoto, Motsoane
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    The bankers' duty of care with regard to financial advice
    (National University of Lesotho, 2023-05-18) Mosese, Nteboheleng
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    The bankers' duty of secrecy and the exception of disclosure by compulsion of an oder of court
    (National University of Lesotho, 2023-06-01) Mokatse, Ntsiuoa
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    The Causes and Implications of Youth Unemployment in Lesotho: Time to Make Section 29 of The Constitution Justiciable and to Enact Other Laws to Solve the Problem
    (National University of Lesotho, Faculty of Law, 2020-05) Khalimane, Moratoe Peter; Kometsi, L. Dr.
    Youth employment is very important in eradicating the bitter and harmful effects of the socio-political and economic risks that Lesotho faces. However, enforcement of chapter three of Lesotho’s constitution, level of education, the collapse of local industries, climate change, and neglect of agricultural sector, so is the high rate of diseases like HIV/AIDS tuberculosis and very high corruption rate in the government play a very serious uphill battle to overcome the very threatening unemployment rate among youth because the country has low financial resources. Consequently low standard of living and high crime rate are the direct result of youth unemployment. Lesotho is regarded as one of the poorest countries both the African region and in the world. In trying to solve the problem of high youth unemployment rate the country Incorporated policies advocated internationally especially those of ILO into its constitution since 1966 with a view to strengthen their campaign to reduce the unemployment rate. The justiciability of policies on opportunity to work as enshrined in chapter three of the 1993 Constitution of Lesotho form the fulcrum upon which the discussion in this paper is based. It concludes by recommending that the constitution must be amended or be reformed to make section 29 to be justifiable. Equally important creation of new laws and diversification of the economy (improvement of private sector) is very important so is the revitalization of collapsed local industries to absorb growing number of unemployed youths.
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    The Causes and Implications of Youth Unemployment in Lesotho: Time to Make Section 29 of the Constitution Justiciable and to Enact Other Laws to Solve the Problem.
    (National University of Lesotho, 2020) Khalimane, Moratoe Peter; Kometsi, Dr.
    Youth employment is very important in eradicating the bitter and harmful effects of the sociopolitical and economic risks that Lesotho faces. However, enforcement of chapter three of Lesotho’s constitution, level of education, the collapse of local industries, climate change, and neglect of agricultural sector, so is the high rate of diseases like HIV/AIDS tuberculosis and very high corruption rate in the government play a very serious uphill battle to overcome the very threatening unemployment rate among youth because the country has low financial resources. Consequently low standard of living and high crime rate are the direct result of youth unemployment. Lesotho is regarded as one of the poorest countries both the African region and in the world. In trying to solve the problem of high youth unemployment rate the country Incorporated policies advocated internationally especially those of ILO into its constitution since 1966 with a view to strengthen their campaign to reduce the unemployment rate. The justifiability of policies on opportunity to work as enshrined in chapter three of the 1993 Constitution of Lesotho form the fulcrum upon which the discussion in this paper is based. It concludes by recommending that the constitution must be amended or be reformed to make section 29 to be justifiable. Equally important creation of new laws and diversification of the economy (improvement of private sector) is very important so is the revitalization of collapsed local industries to absorb growing number of unemployed youths.
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    Conflicts between Applicable Law and the Law of the Seat and the Limitations of Judicial Review of Arbitral Awards: Lessons from Lesotho Highlands Development Authority (LHDA) vs. Impregilo Spa
    (Lesotho Law JournaL, 2013) Tsietsi, T.
    A mixed international arbitration involves parties from two different States. The parties agree on the applicable law, which is the substantive law to be applied by an arbitral tribunal. The seat of arbitration, however, also plays a fundamental role by elucidating the applicable procedural rules. This is the lex arbitri. Sometimes arbitrators can find it difficult to determine which law is applicable to which issues. This was the case in LHDA v Impregilo1.
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    The Constitution of Lesotho by Saha, Tusha.
    (Lesotho Law Journal, 2014) Nyane, H.
    The Constitution of Lesotho constitutes a seminal contribution by a scholar 'of no mean stature like Professor Tusha Kanti Saha who coincidentally, hails from one of the most progressive jurisdictions and a mature democracy, republic of India', to use the words of Chief Justice Lehohla in his foreword to the work. This book is incontrovertibly the only work on the Constitution of Lesotho that covers the jurisprudential twists and turns of the constitutional law of the Kingdom of Lesotho. It touches on all salient features of the edifice such as the history of the Constitution of Lesotho, the notions of liberal constitutionalism like the rule of law, the Bill of Rights and all the key institutions of the design. This comprehensive approach was last employed by Palmer and Poulter in their classic work, The Legal System of Lesotho.1 The later work by Maqutu, Contemporary Constitutional History of Lesotho is an historicnarrative piece which, although it filled the void on the often downplayed history of the constitution of Lesotho, is not necessarily comparative or analytic on the contemporary trends in constitutional discourse.
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    The Constitutional Implications of Abuse of Entrapment in the Workplace:
    (National University of Lesotho, 2025-05-26) Sello, Thakane
    This research is aimed at scrutinizing the legal ramifications of civil entrapment in the context of Lesotho’s legal landscape, utilising South Africa and United States jurisprudence as reference points. By undertaking an in-depth investigation of entrapment practices, the study pinpoints the lacuna in Lesotho's legal landscape: both the Labour Act 2024 and its predecessor the Labour Code Order 2000 as well as the Criminal Procedure and Evidence Act 1981 are silent on the issue of civil entrapment. Shifting gazes to South Africa as the first reference point, it has the legal framework which pronounces itself more clearly in terms of section 252A of its Criminal Procedure Act and relevant case law, and the U.S.A on the other hand, opts a subjective predisposition test rooted in constitutional protections, Lesotho lacks any formal structure to regulate such practices. This legal vacuum places both stakeholders at risk of falling prey to vulnerable to coercive investigative methods and employers uncertain about evidentiary standards and due process requirements. The study closes the research by recommending appropriate legislative reforms, including amendments to the Labour Act 2024 and the Criminal Procedure and Evidence Act 1981. These reforms are meant to act as the bridge that fills the legislative void by providing procedural safeguards, clarifying the boundaries of lawful surveillance, and seeing to it that any evidence emanating from entrapment is gathered andutilized in a constitutional manner. The research commences by laying out the conceptual foundations of workplace entrapment, shining light on its double pronged nature as both a potential weapon for exposing misconduct and a risk for violating individual rights. Entrapment, when utilized in a mala fide way, it can result in manipulation, emotional bullying, and self-created crime. The inherent danger that attaches to employees in a jurisdiction where relevant legislation is silent on this issue, there is potential for it to be abused by employers. Considering this, this research views entrapment not just as a procedural issue but as a constitutional issue that could give rise to a number of issues which have a bearing on privacy, dignity, and unfair labour practices. By embarking on the comparative analysis, the research shines light on the manner that South African courts have attempted to strike a balance intersee the interests of employers with the rights of employees. Landmark cases such as Cape Town City Council v SAMWU and Caji v Africa Personnel Services paint a clear picture on the canvas on the manner South African courts treat entrapment and they err on the side of caution, in instances where there is existencef proof of inducement or manipulation. In both cases, courts reiterated the necessity of procedural fairness and tossed aside evidence gathered via emotionally coercive methods. Unlike in South Africa, the United Stated jurisprudence on entrapment reveals that the main enquiry in any case where entrapment is involved is whether the entrapped person had predisposition. Analysis of cases of Jacobson v United States and Sorrells v United States is to the effect that the courts’ focus is the latitude to which government agents may instigate criminal behaviour. It is true that this benchmark, places focus on the defendant’s mindset than the investigator’s conduct, however it acts as an indispensable constitutional safeguard against abuse of power. The research further pinpoints the fact that Lesotho’s Constitution provides a strong foundation for regulating workplace entrapment, despite the absence of a specific legislative instrument to that effect. Rights to privacy, and freedom from arbitrary action are already contained in Lesotho’s legal system. Nonetheless, without enabling legislation to operationalize these rights in workplace investigations, constitutional protections remain theoretical. For that reason, this research presents a hybrid legal model for Lesotho: one that blends South Africa’s procedural safeguards with the U.S. emphasis on individual predisposition to come up with a strong legal framework that is the best of both worlds and best regulate workplace entrapment. To round off, the research puts forth the recommendation that is aimed at amending both theLabour Act 2024 and the Criminal Procedure and Evidence Act 1981 to incorporate sections that unambiguously deal with entrapment. Proposed amendments include but are not limited to the following: defining workplace entrapment, barring the use of emotionally manipulative tactics, and requiring prior authorization for covert operations. The creation of a tribunal mechanism, such as a role for the Directorate of Dispute Prevention and Resolution (DDPR), is also suggested to provide an avenue for employees to challenge the legality of entrapment- based evidence in disciplinary proceedings. These recommendations are meant to nurture the principles of fairness and legality while ensuring that employers retain the ability to investigate genuine misconduct in an ethical and legally compliant manner.
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    Constitutionalisation and Constitutional Amendment in Lesotho: A Case for Substantive Limitations
    (Lesotho Law Journal, 2014) Mohau, K. K.
    The idea of a limited government encapsulated in the concept of constitutionalism is, like all ideals, capable of realization to differing degrees from country to country, and even at different times in one country's constitutional development. Constitutional amendment is indispensable to constitutional development but, like a double edged sword, the process is capable of either helping or hurting a country's project to build a constitutional state. This paper evaluates the amendment process provided for in the Constitution of Lesotho. It makes a case for adopting substantive limitations to the Constitution's amendment as a means of ensuring the continued respect for constitutionalism.
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    The Constitutionalisation of Labour Law in Lesotho
    (Lesotho Law Journal, 2014) Mosito, K. E.
    This paper discusses the intersection between constitutional provisions and labour law in Lesotho. It identifies and discusses the fundamental human rights and freedoms as well as the principles of state policy embodied in the Constitution of Lesotho. It goes on to discuss the impact that each one of the Chapter II and Chapter III provisions has on labour relations, thereby determining the extent to which there exists an intersection between constitutional law and labour law. It also brings to the fore the judicial interventions that have taken place in Lesotho within the context of the intersection of constitutional law and labour law.
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    Constitutionally Fair Trial, Summary Trial Before Military Courts: Plea for Reform
    (National University of Lesotho, Faculty of Law, 2020-05-01) Makoetlane, Dick Justinus; Mohau, K. KC
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    The Crisis of Representative Democracy in Lesotho: Reflections on the Rule of Law, Constitutionalism and Good Governance
    (National University of Lesotho, 2020-05-01) Mokhitli, Matheakuena Angelina; Prof. Mhango
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    Critical Analysis on the Interpretation and Application of the Law Governing Admissibility of Hearsay Evidence in Civil Proceedings in Lesotho; A Plea for Reform
    (National University of Lesotho, 2020) Moekoa, Moleboheng Elizabeth
    The admissibility of evidence in civil proceedings has since colonial times been governed by the Evidence in Civil Proceedings Ordinance (referred to as the Ordinance).1This piece of legislation remains in force to this day. The Ordinance makes it binding for the courts to apply the English Law of evidence in determining matters that relate to the admissibility of hearsay evidence in civil proceedings. As a result of this provision, and the development of English Law the current law applicable to the admissibility of evidence in civil proceedings is the English Civil Evidence Act.2 Due to the progression of time and the adoption of common law from jurisdictions such as South Africa, many changes have occurred in the application of the above legislations. Our Courts have widely adopted the attitude of applying the South African approach when dealing with admissibility of evidence. As a result of this there is a clash and confusion eminent in our judicial system. That is to say, the confusion is present to a notable degree and cannot easily be overlooked. This paper discusses the interpretation of the provisions of the law that governs the admissibility of hearsay evidence in civil proceedings in Lesotho. The aim is to look into the practice of the courts of law in civil cases as against the statutory provisions for purposes of determining whether or not there is adverse impact of basing court decisions on a line of reasoning that emanates from the South African law, and if not, to determine whether a time for reform of the Ordinance has arrived. The paper focuses on hearsay evidence in civil proceedings and how such evidence should be treated in the courts of law.