Lesotho Law Journal - Volume 22, Issue 1_2, 2015
Volume 22, Issue 1_2, 2015
Author Nqosa L. MahaoSource: Lesotho Law Journal 22, pp 1 –14 (2015)More Less
When I was approached with the request to give the 2014 Moshoeshoe Lecture, I thought it a daunting task in light of the historic stature of the person around whom the convention is built. The enormous privilege of standing in front of so esteemed an audience is by itself humbling, if also a little intimidating.
Author Matseliso 'M'a-Tlali MapetlaSource: Lesotho Law Journal 22, pp 15 –36 (2015)More Less
As the country marks twenty years of constitutional democracy almost fifty years since independence in 1966, one cannot help but take stock of what is there for women in Lesotho to celebrate. Gender equality is an imperative for democratic governance. In this context Dalherup's main theoretical arguments in support of the importance of women and gender equality in democratic governance are first, the justice argument, which is that because women make up half of the world population, it is imperative to promote gender equality. Second, the democracy argument, which is that proportional representation is desirable for democracy. Third, the experience arguments, which is that women bring different perspective and experiences to the table, so they enrich the democratic process. Fourth, is the critical mass argument, which is that women are able to achieve solidarity of a purpose to represent women's interests when they achieve certain levels of representation; and fifth, the symbolic argument, which is that women can act like role models when they are in leadership positions. There is evidence in many countries to show that when women are in positions of power they are inspired to actually do the same as men and be successful. So those are the five arguments [unclear] in support of gender and the promotion of gender equality.
The liability of a commercial bank for fraudulent activities of its manager : the NBS bank cases & other related casesSource: Lesotho Law Journal 22, pp 37 –59 (2015)More Less
This paper looks at the liability of a commercial bank to third parties where the manager exceeds his given mandate by fraudulently concluding transactions that are not within his scope of authority in the name of the bank for his own benefit. It is shown that on the basis of agency by estoppel, the bank manager has ostensible authority to bind the bank if it made a representation to the outside world that the manager had authority to act bind the bank and the fraudulent transaction is concluded in the ordinary course of business of the bank. The bank will however not be bound if the third party knew the transaction was unlawful and one which the bank would not countenance.
Source: Lesotho Law Journal 22, pp 61 –87 (2015)More Less
The collapse of civilian control of the army in Lesotho as evidenced by the refusal of the army commander to vacate office as directed by the civilian authorities on the 29th August 2014 in Lesotho and the series of military operations not sanctioned, tacitly or expressly, by the civilian authorities is only symptomatic of a deeply embedded problem of poor civil military relations. The problem is historical. This essay therefore takes historical analysis of the key epochs in the evolution of civil military relations in Lesotho. The central thesis of the essay is that Lesotho has lived to see civil military relations where the natural chemistry of the army is political vendetta against opponents. So this history which places the army inextricably at the centre of politics has not reversed since inception of the standing army in 1980s hitherto. The problem has been compounded by weak constitutional democracy which has confronted insurmountable hurdles since resumption in 1993. All the piecemeal reform attempts that have been initiated have hardly eased the problematigue of civil military relations in the country - instead, the situation has deteriorated to a state where the army command can blatantly defy civilian control. The problem is on both sides of the equation - the civilian political leaders as well as the army.
Source: Lesotho Law Journal 22, pp 89 –116 (2015)More Less
This article essentially, explores and describes the seeming fairness of a disciplinary process in the Lesotho public service and, advances guiding principles that can be used by the public service disciplinary authorities to achieve a fairer experience of the disciplinary process in the public service. It also endeavours to discover public officers' legitimate expectations within the public service laws. It is based on the legislative provisions and judicial pronouncements as well as literature on human resources' studies. It concludes by highlighting tenets that should be observed in handling public officers' cases so as to ensure that they do not render the disciplinary processes traumatic, unfair and not reliable, but rather, to make discipline more effectively.
The Lesotho Electronic Transactions and Electronic Commerce bill : will it replace the common law of contract as we know it?Author L.L. RamokanateSource: Lesotho Law Journal 22, pp 117 –144 (2015)More Less
At both domestic and international level, the mode of trading is rapidly shifting from paper to electronic commerce. Businessmen have openly embraced the innovations of Information Technology. From simple negotiations, to payments of huge sums of money, everything is being done through wires and cables. While electronic commerce has greatly simplified trade for businessmen, it has however sadly complicated commercial legal practice and scholarship. Amongst the most troubling aspects of electronic commerce is the issue whether the common law of contract should continue to apply to electronic transactions exactly as it does to paper based contracts, or whether in the light of this revolution, we need a new legal framework? In an effort to accommodate electronic commerce in that jurisdiction, the Parliament of Lesotho is currently working on a Bill which is intended to govern electronic commerce once passed into law. While anticipating the Act, perhaps it is wise as early as now to determine how it will affect the law of contract as we know it?
Promoting Administrative Justice in Lesotho - The Role of the Ombudsman, Sekara Sam Mafisa : book reviewSource: Lesotho Law Journal 22, pp 145 –150 (2015)More Less
The Promoting Administrative Justice in Lesotho is one of the book-length contributions that have started to emerge about the post 1993 constitutional design in Lesotho. It came almost simultaneously with Saha's The Constitution of Lesotho in the same year. The great void in the constitutional law of Lesotho today, in juxtaposition to its comparators elsewhere in the Commonwealth, is that it is still very dry - it lacks befitting scholarly nourishment that would breathe some life into it. Consequently, the design unduly relies on comparative constitutional jurisprudence every time it encounters moments of doubt in its development. Intellectual contributions that have largely gone into it have mainly been through academic articles and, to a very limited extent, judicial decisions. The design is in dire need of comprehensive narratives that originate from the local experience. Mafisa's work somewhat plugs this void by picking on one of the highly critical, yet regrettably underrated, institutions in this constitutional design - the office of the Ombudsman.
Abuse of the requirement of publication of notice in applications for voluntary surrender : a look at Letitia Ndema v ABSA & Others and related cases : notes & commentsSource: Lesotho Law Journal 22, pp 151 –159 (2015)More Less
One of the preliminary procedural formalities to be fulfilled by an applicant for voluntary surrender as stipulated in section 4(1) of the Insolvency Proclamation of 1957 is publication of a notice of intention to apply for surrender. Such publication must be made in the government gazette and newspapers in the district in which the applicant debtor resides or carries on business. The period of publication must be not more than 30 days and not less than 14 days from the date of hearing of the application as stated in the notice. The notice may be withdrawn after the debtor has applied to the Master for his consent which must be given in writing. In terms of section 7, a valid withdrawal is one made with the consent of the Master followed by publication of a notice of withdrawal in the government gazette. The substantive requirement for a valid withdrawal is that the publication of notice of surrender must have been made in good faith and the withdrawal must be for a good reason.