Lesotho Law Journal - Volume 23, Issue 1, 2015
Volume 23, Issue 1, 2015
Limitation of human rights under the constitution of Lesotho and the jurisprudence of superior courtsSource: Lesotho Law Journal 23, pp 1 –33 (2015)More Less
The 1993 Constitution of Lesotho establishes the human rights regime undergirded by the notion of non-absolutism. The Constitution establishes internationally recognized fifteen human rights. It also provides for predominantly special limitations model to the said rights. However the proviso to section 4(1) of the Constitution places a somewhat general condition for limitation of human rights in the Bill of Rights - that all the special limitations should ensure that enjoyment of human rights does not prejudice the rights of others or public interest. Superior courts in Lesotho in many occasions have had to contend with this unique model of limitation of human rights. In some instances they even churn out inconsistent human rights jurisprudence. The purpose of this paper therefore, is to critically analyse the models of limitation of human rights used under the constitution of Lesotho and how superior courts in Lesotho are handling the notion of human rights limitation as it is espoused by the Constitution. The paper seeks to propose a coherent model that will assist the superior courts to manage the long-standing challenge of balancing notion of human rights and its concomitant - the limitation of human rights.
Author Olaide Abass GbadamosiSource: Lesotho Law Journal 23, pp 35 –68 (2015)More Less
The nature of the office and functions of a judge call for high sense of duty, integrity, incorruptibility and credibility. The judiciary, as the last hope of the common man and custodian of the law plays an important role in the fight against corruption. Regrettably, judicial corruption has devalued and derailed society's fundamental mechanism for impartial administration of justice. The enviable role of the judiciary has been dented by serious allegations of corruption against the hallowed temple of justice. Some judges have betrayed their oaths of office by engaging in wanton corruption. Such corrupt activities of some judges have caused serious damage to the credibility and integrity of the judiciary. The common man's quest for justice is further diminished by corrupt characters in the judiciary. In order to boost the citizens' confidence in the judicial system, judges must demonstrate incorruptibility and impartiality. The war against corruption in the judiciary should be holistic and target not only judges but also any employee in the judiciary engaged in corrupt practices. The paper examines the critical role of the judiciary in combating corruption and concludes that corruption in the judicial system is one of the most significant obstacles to the impartial administration of justice and recommends practical ways to combat judicial corruption to ensure that the judiciary retains its time honored tradition of integrity and good image.
Author Seeiso Jonas KoaliSource: Lesotho Law Journal 23, pp 69 –86 (2015)More Less
This article takes a critical look at the moral justification of the practice of active and involuntary euthanasia among the Basotho. In this practice, terminally ill aged people were left at the entrance of a kraal to be trampled by cattle until they died. On the other hand, it is argued that this practice violated both the notion of intrinsic human dignity and the principle of respect for autonomy. The paper concludes that there is no moral justification for the practice of active and involuntary euthanasia among the Basotho people because this practice constituted murder.
The use of electronic agents in trade and commerce : a critique of the approach under the ETEC Bill 2013Author Lehlohonolo L. RamokanateSource: Lesotho Law Journal 23, pp 87 –115 (2015)More Less
The Parliament of Lesotho is currently working on a Bill intended to regulate electronic commerce, namely the Lesotho Electronic Transactions and Electronic Commerce Bill 2013 (the ETEC). In section 16(1), the Bill provides for the validity and enforceability of automated transactions. Automated transactions are agreements concluded through the use of computer software, known in law as "automated message systems", or "electronic agents", on one or both sides of the contract. In section 18 (1) (c) the Bill further provides that an automated communication, i.e., a message sent by an electronic agent is attributed to the person who programmed it or for whose cause it was programmed to function automatically. This rule of attribution is known as the "mere tool theory", properly so because it regards electronic agents not as "agents" but as tools of communication no different from a telephone or a fax machine. This work criticizes that approach, and further undertakes a comparative research of the legislative framework for electronic agents in the Republic of South Africa and the United States of America to show how other jurisdictions have covered the use of electronic agents in commerce. Finally, this work recommends that before passing the ETEC into law, the legislator should consider permitting the use of the law of agency to instances involving electronic agents.
Optimal financing of the proposed consolidated national social security scheme for Lesotho : options for the futureAuthor Kananelo E. MositoSource: Lesotho Law Journal 23, pp 117 –160 (2015)More Less
This article looks at social security financing as an indispensible consideration for efficienising every social security scheme. It postulates that different factors influence the formation of new social security schemes and the ways of targeting the necessary social protection. One of such factors is an optimal choice of social security financing methods. The article is based on the premise that a fitting choice of social security financing model predetermines the success of the scheme. The aim of this article therefore, is to consider the manner in which Lesotho's contemplated national social security scheme may be financed so as to ensure its sustainability and affordability. The article undertakes an overview of various social security financing methods that may be used for financing the scheme. In the process, it recommends those that it identifies as ideal for the purpose regard being had to Lesotho's socio-economic levels of development.
Author Kuenaesele Ramabele-ThamaeSource: Lesotho Law Journal 23, pp 161 –176 (2015)More Less
The recent judgment of Fourie J. in the case Lotte Confectionery Co Ltd v Orion Corporation emphasizes the need for a trademark owner to take active steps to monitor and prevent unauthorized use of his trademark by third parties as a way to protect the trademark from losing its distinctiveness. The court was satisfied that there was sufficient evidence to prove wide spread and extensive use of the respondent's mark and confusingly similar marks by third parties in connection with their own goods without the respondent's permission and on products not connected to the respondent. As a result, the respondent's mark had lost its distinctiveness to become merely descriptive of goods made of chocolate and cocoa. The court reiterated the trite principle that distinctiveness is a fundamental requirement of a trademark and once it is lost, the mark falls into the public domain and is subject to be cancelled from the Register of trademarks. This principle applies in the case at hand because the respondent's trademark was no longer able to distinguish goods originating from the respondent from those of other competing entities.
Commentary on the case of Attorney General v His Majesty the King and Others (2015) : notes & commentsSource: Lesotho Law Journal 23, pp 177 –188 (2015)More Less
Constitutional litigation in Lesotho is generally very scanty, particularly the one dealing with interrelations between state institutions. The few constitutional cases that are litigated in Lesotho relate to human rights of individuals against the state. The case of Attorney General v His Majesty the King and Others is one of the very few occasions when superior courts in Lesotho have to intervene to redefine powers and limitations of state institutions. More importantly, the case is the only decision of the Court of Appeal of Lesotho under the new constitution of Lesotho through which the Court deals directly with the powers of the controversial office of the Prime Minister in relation to other institutions.