Journal articles on the topic 'Courts – Lesotho'

Abstract Since the popularization of the doctrine of separation of powers in the 18th century by Baron De Montesquieu, emerging democratic nations have continued to strive towards evolving patterns of governance that suit their internal needs with regards to the political, social and cultural peculiarities of each nation. Lesotho is no exception to this evolutionary trend, as the country transitions from a traditional monarchical to parliamentary system of government, founded on popular democracy. The 1993 Constitution of Lesotho embodies provisions that ensure the distribution of governmental powers among the three arms of government, but with due reverence to the monarch whose powers cut across each branch of government. The judiciary plays a very important role in preserving the tenets of the constitution. The courts in Lesotho have been very assertive, sometimes excessively so, by intruding into the functions of the other arms of government. This paper captures the true importance of the doctrine of separation of powers, examines the Lesotho constitutional arrangement in preserving this doctrine and calls for caution on the part of the courts as guardians of the constitutional order.

This article compares and contrasts the development of the legal systems of two British colonies that occuped almost opposite ends of the colonial judicial continuum: what in colonial times were known as the Gold Coast and Basutoland. Both became British colonies in the late nineteenth century, but followed considerably different paths to that status. In the case of the Gold Coast it followed centuries of contact between Europeans and the coastal peoples in this area of West Africa. In the case of Basutoland incorporation into the European world was a nineteenth-century phenomenon and far more rapid. Nevertheless, at the turn of the century, as indirect rule became the officially accepted wisdom as to how colonial peoples should be ruled, administrators in both colonies sought to make the chiefly order an integral part of the colony's administration and award its chiefs judicial responsibilities. In the Gold Coast, however, chiefly courts remained in competition with a highly developed British-style Supreme Court. In Basutoland there were basically only chiefly courts until late in the colonial period, which applied Sesotho customary law that was written down as the Laws of Lerotholi in 1903. The two-tier judicial system of the Gold Coast allowed far more contestation and was far more flexible and responsive to social changes than was the case in Basutoland. Incremental changes over time meant that the judicial system evolved far more smoothly than in Basutoland. When in the latter colony changes did not come ‘from above’ in the 1940s, there was a serious outbreak of ‘medicine murders’ that many observers felt was directly related to the chiefs losing their judicial role. Also, the colony's high court ruled against the validity of the Laws of Lerotholi in the controversial ‘Regency case’. Apart from being a return to comparative analyses of the impact of colonial rule on former African colonies, much in vogue in the 1960s, this study is an attempt to modify the emphasis on ‘cleavage’ and the ‘coercive’ that has characterised historians' approach to the study of colonial law.

AbstractThis article focuses on the extent of a company's responsibility for the criminal conduct of its employees. It considers the initial reluctance of common law courts to hold corporations criminally responsible for offences requiring mens rea, a mental element not found in artificial persons. The courts overcame this initial difficulty with recourse to the identification doctrine, which seeks to attribute to a company the fault of certain of its officers. However, the restrictiveness and inconsistencies embodied in the various judicial statements of that doctrine precipitated recourse in some jurisdictions to civil law concepts, such as respondeat superior, vicarious liability and even strict liability, to found corporate criminal responsibility. The need to streamline the scope of, if not enhance, corporate criminal liability, has engendered statutory reforms in some jurisdictions. The article considers reforms in Australia, the UK, Canada and the USA, in comparison with the situation in South Africa and Lesotho.

The doctrine of judicial precedent forms an integral part of the general law of Swaziland. This doctrine would be unworkable without the publication of law reports. The following is an account of the Swaziland law-reporting process.The Kingdom of Swaziland, which regained its independence on 6 September, 1968, has retained the dual structure of laws and courts which it inherited from the British administration. In terms of this structure the traditional Swazi law and Swazi courts operate under the umbrella of the general law and the ultimate control of the general law courts.The country's general law is based on the Roman–Dutch law. When the British found that Civilian system of law to be well-established on their arrival in Southern Africa, they decided to respect it. However, many elements of English law were introduced. The doctrine of judicial precedent was one of them.Even though Swaziland shares with South Africa (including its “independent homelands”), Botswana, Lesotho, Namibia and Zimbabwe a mixed general legal system which resulted from the interaction between the Roman–Dutch Civilian law and the English Common law, its general law operates independently.

This edition consists of 15 contributions – 12 articles and three case notes. In the first article, Janke Strydom and Sue-Mari Viljoen discuss the phenomenon where inner-city buildings in South Africa are unlawfully occupied, which has led to a number of legal disputes between occupiers and individual landowners. They propose measures analogous to those in England and the Netherlands to be added to the existing statutory powers of the local authorities to assist in resolving the disputes. Second, Tapiwa Warikandwa and Patrick Osode deal with the challenges the WTOs is faced with in balancing the rights of a sovereign power to freely regulate matters pertaining to health or the environment within its domestic domain with the need to maintain the sanctity of the multilateral trade order. Third, Andra le Roux-Kemp and Elsie Burger give a comparative perspective on some of the issues associated with litigating cases where the Shaken Baby Syndrome is the subject matter. Their focus is on the case law in the United States and United Kingdom. Fourth, Fatima Osman deals with the thorny issue of headscarves in South Africa, France, Turkey and Switzerland. She focuses on the reasons for the ban against their wearing and asks if the ban can be justified in the light of the human rights guaranteed to those individuals wanting to wear them. Fifth, Geo Quinot and SP (Fanus) van Tonder argue in favour of capstone courses to address some of the challenges facing legal education in general and the inadequacies of the LLB curriculum. Rolien Roos, in the sixth article, sets out to determine whether law can be regarded as a science which could be studied. She refers to the scholarly works of philosophers such as Dooyeweerd, Stafleu and Strauss and comes to the conclusion that the answer is all but straight forward. In the seventh article, Caiphas Soyapi considers the highly controversial provisions of the Traditional Courts Bill in a comparative context and recommends that the framers of the Bill should consider the situation in other jurisdictions in order to deal with some of the issues with the Bill. In the eight spot, Gerrit Ferreira and Anél Ferreira-Snyman examine the dichotomy that is created between the monist and dualist approach followed by the incorporation of international law into municipal law in the light of decisions of the South African Constitutional Court and the European Court of Justice. In the ninth article, Magda Slabbert and Darren Boome investigate the prospects of a convicted criminal who wants to become a lawyer, and in the tenth article Raheel Ahmed considers the role of “contributory intent” as a defence limiting delictual liability. In the second-last article Kananelo Mosito sets out to provide the reader with an understanding of the legal situation in Lesotho pertaining to social security and protection. Last but not least, Tamara Cohen and Lehlohonolo Matee give a comparative overview of the public servants’ right to strike in Lesotho, Botswana and South Africa.The first case note is by Tracy-Lynn Humby, who deals with the question of whether or not municipalities have the power to legislate on environmental issues such as biodiversity and conservation, as examined in the case of Le Sueur v Ethekwini Municipality in the KwaZulu-Natal High Court. The second note, by Johan Beukes and Christiaan Swart, discusses the case of Peel v Hamon J&C Engineering (Pty) Ltd, which deals with the remedy provided for in section 163 of the Companies Act (the oppression remedy). The last note is by Helen Kruuse and Julia Sloth-Nielsen, and debates the implications of Mayelane v Ngwenyama

The employer’s views have been sought on the quality of the National University of Lesotho (NUL) programmes in relation to addressing the concept of social responsibility. The employers’ views were sought through observing the quality of performance of the NUL graduates at the workplace and at the community engagements. The NUL designed programmes that are expected to address the societal needs, hence the reason why it is important to find out whether the programmes that prepared the graduates for the workplace have a successful outcome. A total of 150 employers in the Lesotho Ministries of Education and Training as well as Local Government and chieftainship in three of the ten districts of Lesotho formed the sample of the study. A two part questionnaire with four point likert scale of strongly agree and strongly disagree; highly satisfied and highly dissatisfied was designed to find out information on the employers’ perceptions on the performance of the NUL graduates in relation to social responsibility. Frequency counts analysis with descriptive statistics was employed to indicate the results of the study. Research results confirmed that the NUL programmes have deficiencies in moulding all graduates with competence in social responsibility. It was observed that there were graduates that have achieved the social responsibility skills, but there are those graduates who still require further training on the issue of social responsibility. It is therefore recommended that the NUL should periodically review its programmes in order to prepare a well rounded graduate that could be a community developer.

One way in which the practice of inclusion can be actualised in classrooms is through the use of consistent, appropriate differentiated instruction. What remains elusive, however, is insight into what teachers in different contexts think and believe about differentiation, how consistently they differentiate instruction and what challenges they experience in doing so. In the study reported on here high school classrooms in a private and a government school in Lesotho were compared in order to determine teachers’ thoughts and beliefs about differentiation, the frequency of differentiated instruction, and the challenges faced by teachers who implement this inclusive practice. Sampled teachers offered their views on what they understood differentiated instruction to be, the frequency of differentiated instruction, and identified challenges via an administered questionnaire. Data analysis was based on frequency counts and bar charts for comparative purposes. Findings indicate that private school teachers have a higher frequency of differentiated teaching practice, with time constraints indicated as the main challenge. Government school teachers had a lower frequency of differentiation, and identified a lack of resources, and the learner-teacher ratio as challenges, among others. In the study we highlighted the critical role that private schools can play in the national call for the implementation of inclusive teaching in Lesotho, in terms of active collaboration with surrounding government schools. Private schools, with their resources and access to professional development opportunities, can become catalysts in the implementation of inclusive teaching practices.

In Lesotho, standing to litigate is still based on the private law doctrine of locus standi in judicio. This doctrine requires the person who institutes an action in a court of law, regardless of whether it is in the private or public interest, to satisfy the court that he or she is directly and substantially interested in the outcome of the decision. Section 22(1) of the Constitution of Lesotho provides that any person who alleges that the Bill of Rights in the Constitution has been violated 'in relation to him' may approach the court of law for redress. Although the Constitution is silent about the enforcement of the other non-Bill of Rights parts of the Constitution, the courts have readily invoked section 22(1) to exclude litigants who are not 'directly and substantially' interested in the outcome of the case. This restrictive approach notwithstanding, a more liberal approach has been adopted in pockets of public law decisions of the superior courts in Lesotho. The purpose of this article is to amplify this liberal approach. The article argues that constitutional democracy in Lesotho will benefit from a liberal approach as opposed to a restrictive approach to standing. This is supported by a discernible movement in modern-day public law towards a more liberal approach to standing.

A mutiny by soldiers or police officers is no doubt, a serious criminal offence. So is the rape of a young girl or woman by police officers, or shooting someone by the police or military personnel without lawful authority, or supplying military hardware by a defence official charged with guarding the armoury to those who use them for armed robbery purposes? However, if the State as the employer is held vicariously liable for these acts of misconduct, why should it be absolved from liability for the wrongful acts of the soldiers or police officers for injuries caused in a situation of mutiny? It seems clear from the case law that an argument that the State is vicariously liable in such circumstances is bound to hit a dead end if it is based on the old “standard test” which contemplated only negligent, at most, reckless conduct of the employee. This was the beginning of the collapse of the arguments of the plaintiffs in the Lesotho Court of Appeal in Chabeli v Commissioner of Police; the High Court in Seoane v Attorney General; and the Harare High Court in Munengami v Minister of Defence, where the question of the liability of the State was canvassed on the basis of the old “standard test” for determining vicarious liability. It is submitted that if these cases were argued around the “close connection” test as enunciated by the Constitutional Court in K v Minister of Safety and Security and affirmed in F v Minister of Safety and Security, the outcomes might have been different. It seems compelling, therefore, that in analysing these Lesotho and Zimbabwean cases, one must do so with the hindsight of the modern test for determining vicarious liability in South Africa, where the conduct of the employee is not merely negligent in character but deliberate or dishonest in nature.

Since the closure of the Lesotho abattoir in 2003, only imported meat can be legally sold. However, it was estimated in 2007 that 80 % of the meat sold at butcheries comes from informal slaughter. The aim of this study was to investigate the situation. The number and location of informal butcheries in Lesotho (n = 143) were recorded and mapped using Geographical Information Systems. Observations (photographs) of informal slaughter indicated a lack of hygiene, unskilled slaughtermen and illegal disposal of offal with possible environmental pollution. In addition, a cross-sectional study was undertaken to determine the microbiological quality of meat from randomly selected carcasses (n = 237) of cattle, sheep and pigs from a sample of 44 butcheries, 4 of which were associated with registered supermarkets. As a control, samples for microbiological assay were taken from imported meat originating from carcasses (n = 20) slaughtered at a registered abattoir in South Africa. Of the 44 butcheries investigated only the 4 commercial butcheries associated with supermarkets sold imported meat only; 3 butcheries sold meat inspected at government slaughter slabs (n = 3), while the rest (n = 37) sold both imported and informally slaughtered meat. In terms of Lesotho legislation, informally slaughtered meat is only for home consumption. The bacteriological counts from all samples showed a total bacterial plate count exceeding 30 organisms per mℓ in contrast with the controls which all showed a count less than 5 colonies per mℓ. This was found for both imported and informally slaughtered meat sold in Lesotho. In addition, meat samples from butcheries showed the presence of the potential pathogens Salmonella (n = 2), Staphylococcus aureus (n = 12) and Escherichia coli (n=15). During the study, anthrax was confirmed in 9 human patients, 5 of whom died, after consumption of informally slaughtered livestock. Although no cases of animal abuse were detected, it was considered that informal slaughter can prejudice livestock welfare. It was concluded that the current situation is not acceptable in terms of meat safety. Thus, the Veterinary Public Health Directorate of the National Veterinary Services has prioritised the monitoring of butchers, registration of slaughter slabs and a general extension campaign to improve hygiene and animal welfare standards for slaughter in Lesotho. This paper highlights the major risks associated with meat consumption without Veterinary Public Health intervention in accordance with international standards.

South Africa’s legal system is pluralist in nature. It is embedded in two components, namely, customary law and the common law, which converge to form one national legal system through legislation and case law. However, the distinct development of these two components of the legal system has a significant impact on how their respective frameworks are perceived and subsequently applied in given cases. Traditional African family systems were regulated under the “banner” of customary law, but the validity of the system was ultimately decided in terms of the common law, subject to the repugnancy clause. The repugnancy clause was introduced during the colonial era and was used as a measure discarding certain indigenous African values as contrary to public policy and natural justice (see Juma “From ‘Repugnancy to Bill of Rights’: African Customary Law and Human Rights in Lesotho and South Africa” 2007 21 Speculum Juris 88). Hence, the common law was generally preferred to customary law. This state of affairs influenced the manner in which the two components of the legal system developed, entrenched an outlook of a subservient position towards African customary law particularly in relation to parental responsibilities and rights as asserted below. This position, in turn, rattles the traditional family value system of the indigenous African people.This state of affairs persists regardless of the fact that in the new constitutional dispensation, customary law has been afforded legitimate recognition. Section 211 (3) of the Constitution provides that the courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. Furthermore, section 39(3) recognises the rights and freedoms “that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill of Rights”.The official recognition of customary law necessitated that the application of the customary law and the common law within the same legal system be harmonised. Issues pertinent to the harmonisation of the common law and customary law were discussed in the South African Law Commission Report of 1999 (South African Law Commission Report “Harmonisation of the Common Law and the Indigenous Law: Report on Conflicts of Laws” Project 90 of 1999). One of the issues raised in the report was how to determine when the customary law is applicable (Himonga and Bosch “The Application of African Customary Law under the Constitution of South Africa: Problems Solved or Just Beginning? 2000 117 South African LJ 314). It was found that generally, the judiciary exercises its own discretion to decide when to apply the customary law (South African Law Commission Report of 1999). A constant challenge that the judiciary faces is to ascertain the customary law position in a given case. This exercise generally requires probing of both the “official” and “living” versions of the customary law. Needless to say, an investigation of this nature is complex. Normally the traditional customary law position, that is, the living customary law of the pre-colonial is considered in light of its significance in the contemporary society. The diverse plethora of customs and cultures has further compounded the process of ascertaining a customary law position of the various indigenous African groups. Finally, it is essential that the judiciary consider the manner in which a group interprets and applies a particular custom. Due to the said complexities that prevail when attempting to ascertain the African customary law position, the attitude, then is generally to adopt the apparent African customary law position.In light of the said entrenched tensions between customary law and common law in terms of application, this note seeks to explore the dichotomy of the acquisition of parental responsibilities and rights as portrayed in legislation and in terms of customary law. Specific reference will be made to the legal position of unmarried fathers in this regard. This note investigates how parental responsibilities and rights are acquired as provided for in legislation. It further examines whether, in terms of customary law, unmarried fathers can acquire parental responsibilities and rights as stipulated in the legislation.

Abstract Habitat transformation and loss is one of the greatest threats currently facing avian species. The cumulative impact of climate change on habitat loss is projected to produce disproportionate risk for endemic high-altitude species. The Southern Bald Ibis (Geronticus calvus) is an endemic high-altitude species found throughout highland grassland habitats in South Africa and Lesotho. The historical distribution has contracted notably and causal factors remain ambiguous. Furthermore, the historical population (1950–1970) was believed to be stable, but recent local surveys suggest colony declines and the current global population status remains largely unquantified. We assessed the current distribution and population status of the species through predictive modeling and trends in historical and recent colony counts across the species’ range. We examined climate and habitat change as potential causal factors contributing to the historical contraction in distribution, and projected the potential impact of future climate change predicted by global circulation models. Our study confirms that Southern Bald Ibis are of conservation concern. The loss of grasslands to expanding woody vegetation through bush encroachment was the most detrimental habitat transformation type associated with decreased colony growth and colony collapse. We recommend maintaining a minimum threshold of 50% or greater intact grassland habitat surrounding colonies to reduce colony extinction risk and promote colony persistence.