Lesotho Law Journal - latest Issue
Volume 24, Issue 2, 2016
Author B. SekonyelaSource: Lesotho Law Journal 24, pp 3 –18 (2016)More Less
Procedural law is defined as that body of legal rules which prescribes the procedure to be followed when a substantive or material rule of law requires enforcement or where such a rule has been transgressed and redress is needed. It is thus accessory to substantive law. Whereas the substantive law defines legal rights, duties and remedies, adjective law deals with the 'enforcement of these rights duties and remedies'. In other words, in assessing the procedural and practice rules which have been established by the courts, the main question is whether the interpretation of those rules has led to effective dispensation of justice.
Source: Lesotho Law Journal 24, pp 19 –32 (2016)More Less
The August 2015 Session of the Court of Appeal of Lesotho decided on rather unusually many cases on public law. Most cases were on administrative law whilst few were on criminal law, and one on constitutional law. On administrative law, the court has rehashed common doctrines such as ultra vires, 'minimum curial intervention' and the centrality of the rules of natural justice in general, and the nemo iudex rule in particular, to public law in Lesotho. The Court also had an occasion to enter the intellectual furore about the types of intention in criminal law in general, and murder in particular. The longstanding controversy has been whether indeed dolus eventualis carries a lesser blameworthiness than dolus directus. The general policy of the superior courts both in Lesotho and South Africa is that indeed dolus eventualis carries a lesser blameworthiness. This approach is preferred by the courts despite the fact that the two are but sheer types of intention.
Author L. MateeSource: Lesotho Law Journal 24, pp 33 –43 (2016)More Less
The decision of the Court of Appeal in Molahli v Morija Press Board introduced what some scholars and legal practitioners may refer to as 'the confusing element of condonation application'. Condonation application in this context may be defined as an application which a party that has failed to comply with a certain rule or rules of court makes in terms of which that party requests the court to condone his non-compliance. Prior to the decision of the Court of Appeal in Molahli's case, legal practitioners and all stakeholders within the legal fraternity believed that the law was settled, at least in respect of condonation applications.
Source: Lesotho Law Journal 24, pp 45 –60 (2016)More Less
This matter involves the controversial doctrine of common purpose. Common purpose is the common law doctrine of criminal law which is fairly established in Lesotho. The doctrine dictates that if two or more people having a common purpose to commit crime act together in order to achieve that purpose the conduct of one of them in the execution of that purpose is imputed to others. What has divided judicial as well as academic opinion over the years though, has been whether causation which is such a fundamental element of criminal liability can also be imputed.
Author L. KometsiSource: Lesotho Law Journal 24, pp 61 –73 (2016)More Less
The case of Lepule is an important addition to the meaning of precedent as entailing ratio decidendi and not obiter. Precedent has it that courts higher in the hierarchy establish by their decisions precedents for courts lower in the hierarchy and subsequent to the decision of the higher court. Where a matter is claimed to be res judicata, not only does that reinforce the previous decision, it also strengthens its value as precedent. What seemed to be on trial in this case was the manner in which courts in Lesotho are arranged in terms of hierarchy, and the determination of res judicata.
Author M. MositoSource: Lesotho Law Journal 24, pp 75 –94 (2016)More Less
The law of succession concerns itself with principles that determine what should become of a person's estate upon their death. These principles also prescribe who the beneficiaries are and what they are entitled to take as inheritance.
The rights and duties of individuals are also prescribed by the law of succession. These principles are applicable whether one dies with or without leaving a valid will or any testamentary document. If one leaves a valid will, the rules of the law of testate succession (Successio ex testamento) are applied to deal with his estate and for one who dies without such a document, the rules of the law of intestate succession (Successio ab intestato) will be applied. The latter set of rules forms the basis of this paper for the reason that the deceased in the matter died intestate. The Court of Appeal had to determine who is entitled to landed property that formed part of the estate of the deceased. It is the aim of this paper to make a comment on the manner in which the Court interpreted and applied the relevant intestate succession principles to the estate that was in contention.