Lesotho Law Journal - Volume 20, Issue 1_2, 2013
Volume 20, Issue 1_2, 2013
Author Anthony O. NwaforSource: Lesotho Law Journal 20, pp 1 –32 (2013)More Less
The company as a statutory creature relies mostly on investors for its finances and daily business activities. Obvious though this may seem, but it is not clear who these investors are as in some cases those who are referred to as investors are actually creditors having rights against the company as distinguished from members having rights in the company. The interests of the former may not withstand the true tests of an investment as much as the latter. In similar vein, the terms 'member' and 'shareholder' are indiscriminately applied in describing those with interests in the company. These terms are seen in some quarters as synonymous, but this paper reveals that that conception is misleading as shareholders are not members of the company in all cases. The act of shareholding, in companies that issue shares, is only one of the two important criteria by which the status of membership of a company is attained. The second is registration, which shareholding alone does not fulfil, and which in some cases is seen as more important in defining membership of a company than shareholding.
The deportation process and the right to be heard in Botswana in the light of Kenneth Good v BotswanaAuthor Jonas ObonyeSource: Lesotho Law Journal 20, pp 33 –64 (2013)More Less
The advent of the discourse of human rights has affected governments' business in no small manner, albeit for the good. As democracy, good governance and the rule of law gain foothold in a state, laws of the state need to be changed to keep pace with changes in values and polity. Whereas in Botswana several laws in various spheres have changed responding to these circumstances, the Immigration Act remains replete and laden with archaic provisions that are not congruent with human rights notions. Of concern to this article are those provisions in the Act which deny a person affected by deportation the right to be heard. This article interrogates these laws in the light of the decision of Kenneth Good v Botswana within the context of international law and recent decisions of progressive courts such as those of Canada, the UK, etc. The article concludes that these provisions have no place in a democratic set-up such as the one obtaining in Botswana and ought to be repealed.
Author Kananelo E. MositoSource: Lesotho Law Journal 20, pp 65 –89 (2013)More Less
Contemporary discourse on social security rights and their enforcement, adjudication and monitoring occupies a centre stage in the sustainability of any social security system of a country. This discourse has acquired an interesting but rather controversial appellation as to what an efficient social security system should look like. This paper explores the nature of the enforcement, adjudication and monitoring system of social security rights in place in Lesotho. It discusses the various mechanisms used and provided for by the law of Lesotho in this area and, evaluates their effectiveness or otherwise, in the process. It concludes by highlighting the weaknesses and strengths.
Author Letzadzo KometsiSource: Lesotho Law Journal 20, pp 91 –113 (2013)More Less
Laws and policy documents have been developed in an attempt to deal with the pandemic of HIV and AIDS. It is universally recognized that HIV/ AIDS affects mostly the working populations. Hence the best place to concentrate efforts at combating the disease is at the workplace. One of the methods of dealing with this disease is through screening of HIV infection at the workplace. This raises issues of discrimination where it may be used as a yardstick to determine the employability of a person or the mobility of an employee in the work ladder.
The Constitution of Lesotho provides that 'Subject to the provisions of subsections (4) and (5) no law shall make any provision that is discriminatory either of itself or in its effect'. The National AIDS Policy of Lesotho states in clear terms that to deny a person employment on the basis of his or her HIV status is tantamount to discrimination. Yet there are institutions which have made it compulsory for any applicant to test HIV before being employed. There seem to be very strong and persuasive reasons for mandatory testing of HIV at all sections of the society especially at the production sectors.
This paper argues that the path followed by Lesotho in policy formulation seems to be heading towards making it mandatory for every one to test for HIV/AIDS despite the constitutional provisions and the principles of the policy. However, the solution can be not to rely entirely on voluntary testing thus neglecting the importance of knowing the HIV status of all employees in any one organization-but reserve the power or right to demand mandatory testing for the employer where there are compelling reasons. In other words, it is possible to have voluntary testing which relies very heavily on availability of medication and other resources, together with mandatory testing whenever a situation so warrants-and this should apply to all sectors of the economy.
Author Kuenaesele Ramabele-ThamaeSource: Lesotho Law Journal 20, pp 115 –155 (2013)More Less
The TRIPs Agreement came into force in 1995, as an annex to the Agreement Establishing the World Trade Organization (WTO), the WTO Agreement. By ratifying the WTO Agreement, members automatically and necessarily became bound by agreements that came with the formation agreement. As a result, all WTO member states became bound to implement the TRIPs Agreement. The TRIPs Agreement is the prevailing international instrument on intellectual property (IP) and it sets out the minimum IP standard for all WTO member states. Lesotho became a member of the WTO in 1995. Despite this, the country has up to now failed to implement the agreement into the national IP law. No steps have as yet been taken to commence the implementation. Lesotho's national IP law is therefore still below the prevailing international standard set by TRIPs. This paper looks at challenges of implementation of the agreement in the context of Lesotho. The notion of acceptance of law is applied here as a test for successful implementation. This test is derived from Hart's theory of law or jurisprudence on what constitutes a municipal legal system and it looks at how the law is perceived by those responsible for implementation. Various factors that affect or influence acceptance are outlined and discussed. It is shown that Lesotho fails the test of acceptance due to lack of awareness of IP and a number of other factors that have contributed to failure to implement the agreement.
Patentability of nanotechnology inventions : does it mark a shift in patent law's normative orientation?Author Ramohapi Elliot ShaleSource: Lesotho Law Journal 20, pp 157 –170 (2013)More Less
It is commonly believed that small sizes do not matter, but in the field of nanotechnology, the smallest size of matter is all that matters. Nanotechnology "refers to a set of techniques used to manipulate," image, measure, and model matter at "dimensions [roughly] between... 1 and 100 nano-meters." These dimensions are otherwise known as nano-scale. At this length scale, the physical, chemical and biological properties of matter such as conductivity, magnetism, elasticity, reactivity, quantum mechanics, melting temperature and colour may change in unusual and unexpected ways. This unique phenomenon enables nanotechnologists to understand and control matter at the nano-scale and to play around with nano-sized materials. They may use these materials as the building blocks of various devices, structures, products and systems with new properties and functions. Some nano-materials have direct applications.
Conflicts between the applicable law and the law of the seat and the limitations of the judicial review of arbitral awards : lessons from Lesotho Highlands Development Authority (LHDA) v Impregilo SpaAuthor T. TsietsiSource: Lesotho Law Journal 20, pp 171 –194 (2013)More Less
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 Impregilo.
Author Hoolo 'NyaneSource: Lesotho Law Journal 20, pp 195 –199 (2013)More Less
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. The later work by Maqutu, Contemporary Constitutional History of Lesotho is an historic-narrative 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.
Author D.G. ScottSource: Lesotho Law Journal 20, pp 201 –204 (2013)More Less
It is fitting to open this session of the Court of Appeal with a tribute to the late Justice Jan Hendrik Steyn who died in Cape Town on 30 December 2013. Justice Steyn was a member of this Court for some 18 years. He was its President from 1997 to 2008 when he retired at the age of 80. On that occasion he was honoured in this Kingdom by being awarded the prestigious Order of Mohlomi: Commander.