Introduction to the Lesotho Judiciary

About the Lesotho Judiciary

The constitution provides for an independent judicial system. The judiciary is made up of the Court of Appeal, the High Court, Magistrate's Courts, and traditional courts that exist predominately in rural areas. All but one of the Justices on the Court of Appeal are South African jurists. There is no trial by jury; rather, judges make rulings alone, or, in the case of criminal trials, with two other judges as observers. The constitution also protects basic civil liberties, including freedom of speech, association, and the press; freedom of peaceful assembly; and freedom of religion. [Excerpts from the US Department of State Website < http://www.state.gov/r/pa/ei/bgn/2831.htm >].

The legal system is based on English common law and Roman-Dutch law with judicial review of legislative acts in High Court and Court of Appeal. Lesotho has not accepted compulsory ICJ jurisdiction.

The judicial system consists of the High Court, the Court of Appeal, subordinate courts, and the Judicial Service Commission (JSC). The members of the High Court are the chief justice, who is appointed by the chief of state, acting on the advice of the prime minister, and an unspecified number of puisne judges appointed by the chief of state, acting on the advice of the JSC. The Court of Appeal, which meets semiannually, is headed by a president, appointed by the chief of state, acting on the advice of the prime minister, and includes an unspecified number of justices of appeal, appointed by the chief of state, acting on the advice of the JSC. Parliament has the power of establishing subordinate courts and courts-martial. The High Court has unlimited original jurisdiction over civil and criminal matters, as well as appellate jurisdiction from subordinate courts.

Subordinate courts, comprising resident magistrate's courts, judicial commissioner's courts, and central and local courts, administer statute laws, while chiefs administer customary and tribal laws. There is no trial by jury.

Military courts have jurisdiction only over military cases and their decisions are final.

[Source: http://www.nationsencyclopedia.com/Africa/Lesotho-JUDICIAL-SYSTEM.html]

THE MAGISTRATES' COURTS

The Magistrates' Courts were established in 1938 by Subordinate Courts Proclamation No.58 of 1938

We have a total of ten (10) Magistrates' Courts which are each manned by no less than two (2) magistrates. All in all we have forty-two (42) magistrates whose placement ratio is dependent on the courts with a high number of cases like Maseru in the Central Region, Mafeteng in the Southern Region and Leribe in the Northern Region.

Most of the magistrates, from the entry point of Second Class Magistrate to the highest position of Chief Magistrate, hold the Degree of Bachelor of Laws (LLB). Of the total of forty-two (42) only three (3) magistrates, one of them being Senior Resident Magistrate, the other Acting Chief Magistrate (Northern Region) and the other Chief Magistrate (Central Region), hold the Degrees of Master of Laws (LLM). The Magistrate (Judicial) Training Officer also holds the Degree of Master of Laws (LLM).

JURISDICTION

General Jurisdiction

• All magistrates, with the exception of Chief Magistrates, Senior Resident Magistrates and Resident Magistrates, have  both civil and criminal revisionary jurisdiction over all Local and Central Courts within their magisterial districts.

• All magistrates, with the exception of the Chief Magistrates, Senior Resident Magistrates and Resident Magistrates, have original civil and criminal jurisdiction within their magisterial districts

• The original civil and criminal jurisdiction and civil and criminal revisionary jurisdiction over Local and Central Courts in the case of Chief Magistrates, Senior Resident Magistrates and Resident Magistrates extend throughout the whole country.

• In deserving cases magistrates' courts have original jurisdiction to determine customary law cases and in some instances such cases are remitted for the determination of a Local or Central Court.

Jurisdiction in Respect of Courses of Action

In terms of Section 17 of the Subordinate Courts Act 1988 as amended by Subordinate Courts (Amendment) Act No. 6 of 1998 a magistrate court shall with regard to causes of action have jurisdiction in the following matters:

• In any action founded upon a bill of exchange, promissory note, goodfor, bond or other written acknowledgment of debt to an amount not exceeding;

  • In the case of Chief Magistrate's Court M25,000 and any interest due thereon;

  • In the case of Senior Resident Magistrate's Court M20,000 and any interest due thereon; any interest due thereon;

  • In the case of Resident Magistrate's Court M18,000 and any interest due thereon;

  • In the case of the magistrate's court of the First Class M15,000 and any interest thereon;

  • In the case of the magistrate's court of the Second Class M10,000 and any interest thereon;

• In any action in which is claimed the delivery of any property, movable or immovable, where the value of the property does not exceed;

  • In the case of Chief Magistrate's Court M25,000;

  • In the case of Senior Resident Magistrate's Court M20,000;

  • In the case of Resident Magistrate's Court M18,000;

  • In the case of magistrate's Court of the First Class M15,000;

  • In the case of magistrate's Court of the Second Class M10,000;

Jurisdiction in the Matter of Punishment

Save as provided by any other law subordinate courts may punish any person convicted of any offence in the following manner and in no other or more severe manner:

• A Chief Magistrate's Court shall impose a fine of M40,000 and imprisonment for a period of 20 years;

• A Senior Resident Magistrate's Court shall impose a fine of M36,000 and imprisonment for a period of 18 years;

• A Resident Magistrate's Court shall impose a fine of M30,000 and imprisonment for a period of 15 years;

• A magistrate's court of the First Class shall impose a fine of M20,000 and imprisonment for a period of 10 years;  

• A magistrate's court of the Second Class shall impose a fine of M16,000 and imprisonment for a period of 8 years.

Criminal Procedure and Evidence (Amendment) Act No. 10 of 1998 has amended Section 297 (4) of the Criminal Procedure and Evidence Act No. 9 of 1981 by introducing community service as an option to a custodial sentence in "minor offences" which are interpreted as those offences for which the court may pass a sentence not exceeding 18 months with or without an option of a fine and which in the opinion of the presiding officer was committed under circumstances which mitigate the offence.

The following are offences for which community service sentence cannot be ordered and some of them are within the exclusive jurisdiction of the High Court. They are:

• High Treason

• Sedition

• Murder

• Attempted Murder

• Robbery in which a firearm or an instrument which in the opinion of the court is a life threatening one was used in the commission of an offence

• Rape ( now unlawful sexual act in terms of the Sexual Offences Act No. 3 of 2003)

• Theft of stock involving more than one large livestock animal or more than three small livestock animals

• Theft of motor vehicle committed by either an adult or child offender within the meaning of the Children Protection Act No. 6 of 1980

• Fraud involving moneys above M20, 000

Jurisdiction in respect Of punishment in Remitted cases

When a case is remitted and the remittal is expressed to be under the increased jurisdiction punishment will be increased in the following manner;

• For the Chief Magistrate's Court the maximum fine shall be M50,000 and the maximum period of imprisonment shall be 25 years;

• For the Senior Resident Magistrate's Court the maximum fine shall be M40,000 and the maximum period of imprisonment shall be 20 years;

• For the Resident Magistrate's Court the maximum fine shall be M36,000 and the maximum period of imprisonment shall be 18 years;

• For the magistrate's court of the First Class the maximum fine shall be M30,000 and the maximum period of imprisonment shall be 15 years;

• For the magistrate's court of the Second Class the maximum fine shall be M20,000 and the maximum period of imprisonment shall be 10 years.

THE JUDICIAL COMMISSIONER'S COURT

It was established in 1944 by Proclamation No. 16 of 1944

The Judicial Commissioners Court is centrally located in Maseru and is manned by one (1) Senior Judicial Commissioner and five (5) Judicial Commissioners.

The Senior Judicial Commissioner and two (2) of the five (5) Judicial Commissioners hold the Degree of Bachelor of Laws (LLB). The other three (3) Judicial Commissioners hold the Degree of Bachelor of Arts in Law (BA LAW).

JURISDICTION

• They have territorial jurisdiction to determine appeals in each magisterial district emanating from the Central Courts in their original jurisdiction or as a second appeal where the matter came to the Central Court by way of appeal from the Local Court

• Judicial Commissioners Court is an intermediate appeal court and a half-way house between customary courts and the High Court and in terms of section 28 (3) (a) and (b) of the Central and Local Courts Proclamation No. 62 0f 1938 the only appeals that the High Court will entertain are on the question of law or of customary law reserved by the Judicial Commissioner and where the Judicial Commissioner has issued a certificate that the case is fit for appeal on any sufficient ground of appeal.

OBJECTIVES OF THE COURT: 

• It stands to deliver justice as its main business to all people alike so long as they are Basotho or have consented to the jurisdiction of the Central and Local Courts;

• It makes itself accessible by meeting litigants half-way through decentralization of its services by holding court sessions anywhere throughout the country;

• It uses simplified procedures to make it more accessible to the litigants who have a choice on whether or not to engage a legal representative;

• It makes itself more accessible to the litigants who are normally lay-persons by allowing their complaints on procedural irregularities which are mistakenly filed as appeals to be entertained as reviews instead of being dismissed on technicalities and as such the court has both appellate and revisionary powers;

• Its mandate is to reduce frivolous appeals to the High Court by refusing to grant a certificate where it is clear that a matter will not succeed on the merits or point of law;

• The law, however, provides litigants protection against the possible abuse of discretion by a Judicial Commissioner as there is a proviso to section 28 (3) (b) of the Central and Local Courts Proclamation No. 62 of 1938 which is to the effect that a refusal by the Judicial Commissioner to issue a certificate in no way affect the right of the High Court to make such order as may seem just upon the motion of any party aggrieved by the refusal of a Judicial Commissioner to allow an appeal.

THE CENTRAL COURTS

Established by a Warrant by the Minister of Justice with the concurrence of the Chief Justice in terms of Section 2 (1) of Proclamation No. 62 of 1938

There is one(1) Central Court in each magisterial district making a total of ten (10) Central Courts for the whole country. These ten (10) courts are manned by fifteen (15) Central Court Presidents whose distribution/placement is dependent upon each court's workload

Most of the Central Court Presidents hold a Secondary School certificate or a High School certificate as their highest academic qualification. Some hold a High School certificate together with a Certificate in Local Law. The Certificate in Local Law which is offered by the Ministry of Justice, Human Rights and Rehabilitation is highly recommended.

JURISDICTION

• In terms of sections 9 and 10 of the Central and Local Courts Proclamation No. 62 of 1938 Central Courts administer customary law, provisions of any law which the court is by or under such law authorized to administer and the provisions of any law which the court may be authorized to administer by ministerial warrant

• Central Courts have criminal and civil appellate jurisdiction over all Local Courts within the magisterial district

• By Ministerial Warrant of 23rd May, 1995 Central Courts have original and appellate criminal jurisdiction of imprisonment for a period not exceeding five (5) years and imposition of a fine in the amount not exceeding five thousand maloti (M5,000)

• By Ministerial Warrant of 23rd May, 1995 they have original and appellate civil jurisdiction to determine cases wherein the claim does not exceed fifteen thousand maloti (15,000)

THE LOCAL COURTS

Established by a Warrant by the Minister of Justice with the concurrence of the Chief Justice in terms of Section 2 (1) of Proclamation No. 62 of 1938

The number of Local Courts in each magisterial district vary and they are dependent on a number of factors and amongst them we can talk about the vastness of the district, the amount of workload in each district and the terrain of a particular magisterial district.

The largest number of Local Courts are in Maseru in the Central Region with thirteen (13), followed by Mafeteng in the Southern Region with ten (10) which is in turn followed by Leribe in the Northern Region with eight (8). On average there are six (6) Local Courts per magisterial district with only three (3) magisterial districts having five (5), four (4) and three (3) respectively.

We have a total of sixty – nine (69) Local Courts manned by seventy-one Court Presidents whose placement is also based on a particular court's workload.

STANDARD

Some of the Local Court Presidents hold a Secondary School certificate or a High School certificate as their highest academic qualification. Most, however, hold a High School certificate together with a Certificate in Local Law.

The current Local Court Presidents are a new breed of Court Presidents who were mostly appointed as Court Clerks with High School Certificates and who later acquired a Local Law Certificate and in some cases they were already in possession of a Local Law Certificate when they were appointed as Court Clerks and were later promoted to be Court Presidents. The Local Court is the lowest bench but some of the Court Presidents also hold Diplomas in Business Studies or Adult Education.

Presently we have a Local Court President with a Bachelor of Laws (LLB) Degree and one with the Degree of Bachelor of Business Administration. Two (2) Court Presidents are currently pursuing the Degree of Bachelor of Laws at the National University of Lesotho.  

JURISDICTION

• In terms of sections 9 and 10 of the Central and Local Courts Proclamation No. 62 of 1938 Local Courts administer customary law, provisions of any law which the court is by or under such law authorized to administer and the provisions of any law which the court may be authorized to administer by ministerial warrant

• By Ministerial Warrant of 23rd May, 1995 Local Courts have original criminal jurisdiction of imprisonment for a period not exceeding three (3) years and imposition of a fine in the amount not exceeding three thousand maloti (M3,000)

• By Ministerial Warrant of 23rd May, 1995 they have original civil jurisdiction to determine cases wherein the claim does not exceed ten thousand maloti M10,000) and in the determination of bohali claims in customary marriages their jurisdiction over claims is extended to an amount not exceeding fifteen thousand maloti (15, 000) which means that the workload of the Central Courts in cases of bohali claims is reduced.

Contact Information

About Our Judiciary

• Population of Country: 1,880,661.00

• Total Number of Judges: 89 Judges

• Number of Appeal Court Judges: 5 Judges on special terms

• Number of High Court Judges: 10 permanent Judges

• Number of Subordinate Court Judges: 6 Judicial Commissioners and 68 Magistrates

• Salaries and Benefits:

  	Appeal Court	High Court	Subordinate Court
  Salary	Special Allowance	Yes	Yes
  House/Housing Allowance	During sitting	Yes	No
  Free Telephone	During Sitting	Yes	No
  Free Electricity	During Sitting	Yes	No
  Housing and Property Loans and Grants	-	-	No
  Income Tax	Yes	Yes	Yes
  Expense Allowance	Yes	Yes	No
  Car Allowance	During Sitting	Yes	No
  Driver Allowance	During Sitting	Yes	No
  Fuel Allowance	During Sitting	Yes	No
  Special Judicial Allowance	Yes	Retention Allowance	Retention Allowance
  Appeal Allowance	Yes	No	No
  Conveyance Allowance if no vehicle provided	Replacement Provided	Replacement Provided	No
  Cost of Living Allowance	-	-	No
  Pension	Not Permanent	Yes	Yes
  Medical	-	-	No
  Servant	-	Chief Justice Only	No
  Security	-	Chief Justice Only	No

• Methodology of Determining Judicial Salaries: Salaries of Subordinate Court Judges are determined by the Ministry of Public Service with its Department of Remuneration and Benefits and methodology used is basically standard for all Government Departments. Salaries of High Court Judges are statutory.

• Method of Judicial Appointment: Please refer to Section 133 of the Lesotho Constitution 1993 and to Part III of the Judicial Service Commission Rules No. 102 of 1994 (attached).

Lesotho Judiciary Objectives

• The goal of the Judiciary in Lesotho is to improve the efficiency in the delivery of justice and the objectives under that goal are:

  • To improve court administrative systems

  • To improve case management

  • To reduce the backlog of cases

  • To increase the level of accountancy

  • To improve effectiveness in the execution of judgments

  • To increase the level of public confidence in the justice system

Training and Support Staff

There are a number of specialized offices whose responsibility is training and augmenting training services through dissemination of information:

• Director of Judicial Studies

  • This office was created in 2002/2003 Fiscal Year but the vacancy has yet not been filled

  • The holder of this office will report to the Chief Justice and will have the responsibility of induction of newly appointed judges and of continuing judicial education for the middle and higher levels of the judiciary. The holder of the office will work together with Subordinate and High Court Judges as needs assessment consultants, as programme designers, as curriculum designers, as programme planners, as programme presenters and as mentors

  • The qualification for the position will be a Master of Laws Degree with experience in the practice of the Law, research, management of training and training of trainers. The attributes of management of training and training of trainers will be an added advantage as the holder of office will also have the assistance of experienced educators in other fields

• Magistrate Training Officer

  • The officer is charged with the responsibility of induction of magistrates, court presidents (lay magistrates), court clerks and court messengers. The incumbent depends on feedback on the performance of these officers as a way of identifying their needs and with the assistance of magistrates design and deliver training programmes (unfortunately no instructional materials have been prepared as most of the training programmes are presented with the assistance of rules and decided cases )

  • The officer is also responsible for the overall coordination of what is commonly referred to as the Certificate in Local Law Programme. This programme is just like any other law programme that is offered at any tertiary institute and the workload qualifies it to be a Diploma programme. The objective of this programme is to give Court Presidents, Court Clerks, Court Messengers and other law enforcement agents a working knowledge of the law. The advantage of this programme is that it is a part-time/correspondent/distance education programme which is designed, developed and delivered by people with practical experience of the challenges court personnel, correctional officers, police, military personnel etc. are faced with on a daily basis and they have the professional assistance of Distance Education Specialists.

  • The holder of this office has been a Magistrate and a Deputy-Registrar of the High Court before she was appointed to this position. She currently holds a Master of Laws Degree

  • The Magistrate Trainer has never gone for any intensive training in judicial education but has attended a number of conferences whose training materials she uses as her point of reference in delivering training programmes for induction of newly appointed magistrates, for sharing of experiences with senior magistrates and for training of Court Presidents, Court Clerks and Court Messengers. She has recently been exposed to a stint of judicial education training by the International Organisation For Judicial Training (IOJT) in Barcelona Spain and from a guidance on how to classify judicial educational themes through the Commonwealth Judicial Institute Linkage Project (CJEI).

  • The Magistrate Trainer is presently in the process of updating the old educational material and in building instructional material along the CJEI educational themes and has already requested all her resource persons to prepare written material along those themes for the upcoming judicial education programmes.

• Victims Of Crime Support Office

  • This office is provide needed practical and emotional support to assist victims of crime in relation with their cases. It discharges its mandate through

    • Raising awareness for victims rights as contained in regional and international conventions;

    • Informing victims about their role in interacting with the criminal justice system;

    • Providing information regarding the mechanisms of criminal justice process;

    • Providing information on how to obtain redress through formal and informal procedures;

    • Referral to specialized services whenever it is necessary, e.g. counseling, social grantsetc.

    • Preventing further victimization.

    The rational behind the creation of this office is to address the social effects of crime. Crime alienates both victim and offender. A victim is alienated because she is feels disempowered because of the traumatisation of the criminal act. The offender is a victim also because he or she may be rejected by the community. What drives the office, therefore, is the belief that by treating victims more fairly the criminal justice can maintain, where it still exists, or restore, where it is lost, the victim’s respect for the law. Once this is achieved an upward spiral of criminal violence and resentment among victims can be prevented.

    The office also serves as a gateway to diversion of cases from the formal process and restorative justice to arrive at justice for the people by the people as opposed to formal justice which often leaves broken relations. In this way there is a reduction of case backlog through increased usage of informal procedures and relations are mended. One other way in which backlog is reduced is that records that were lying idle in offices are processed and finalized through inquiries and follow-ups by the office.

    The office has pamphlets to advertise the services they provide (enclosed).

• The Systems Coordination, Analysis And Information Office

  • This office provides specialized technical support to all the inter-institutional departments in the justice systems, and to the inter-sectional departments and to external ministries.

  • It discharges its task of coordination and analyzing by collaborating with all the inter-institutional departments in collecting all materially relevant data. Most data is gathered from the offices of the Senior Clerk of Court in the civil and criminal registries which are the primary source of information as custodians of court records. The inter-linkage between this office and the registries is further highlighted by the fact that it is presently manned by a Senior Clerk with training in Public Relations and Marketing. He is assisted by a Court Clerk.

  The day-today activities of the office are as appear hereunder:

  • It takes a daily registration of criminal and civil cases which are instituted in the courts. Present a comprehensive self-contained material information about each case. This being done by recording all the significant particulars of each case beyond the criminal and civil register books eg in criminal cases full particulars of the accused, RCI number (CR), investigating officer, the offence charged, date of first remand, prosecutor, defence counsel and the status of each case each day. In Civil justice it would reflect full particulars of the parties, their counsels, the court record number, claim or relief sought and the status.

  • The criminal and civil court data referred to in the preceding paragragh would then be analysed to give a comprehensive information about the status of each case eg whether the case is a fresh matter, part-heard, pending judgement or completed. It, in summary, reflects the clear status of all cases. The recording of the information and analysis thereof is currently being done manually and subsequently through computerization (The officers have a computer and are presently attending training in computers covering Microsoft Access, Excel, Publisher, Powerpoint).

  • The office acting in collaboration with the court’s finance department (accounts section) collates financial information and presents it in a sample and comprehensive manner for understanding by all concerned. The information ( finance information) inter alia would reflect monies generated by the courts in both civil and criminal litigation during the period in consideration.

  • The office acting in liaison with the Human Resource office presents information about the number of magistrates, prosecutors and clerks of court in each court and in the same vain present information about the cases prosecuted by individual prosecutors and concluded by individual magistrates.

  • The information and its analysis is done daily and presented in the dossier form to His Lordship the Chief Justice, Minister of Justice, The Principal Secretary of Ministry of Justice and to the heads of the ministries and departments which constitute the justice sector. This is done on monthly basis and disseminated accordingly. Members of the public who may be interested, together with civil organizations are also welcome and are from time to time provided with information which they may seek in the matter.

  • The fundamental philosophy or idea for the creation of the office is to institutionalize a permanent system of providing transparency and accountability of services within the judicial system. It is secondarily intended to provide the public with a clear basis to appreciate the problem against progress in a particular case and therefore to look for the appropriate authority for the solution.

The office is also in-charge of the preparation of a monthly Information Bulletin. This exercise is in its infancy stage as the main hindrance has been lack of training in Microsoft Publisher and also lack of appreciation by all levels of staff about the importance of information sharing, especially about educational activities and educational materials.

Copies of monthly reports and monthly information bulletin are attached.

• Judicial Education Institute [DOC]

  
  

Lesotho Judiciary Standards

• National Vision and Strategy for the Justice Sector [RTF]

The standards of ethical conduct of judges are established under the Ethical Principles for the Judiciary (attached). As clearly appears under the section on general principles the ethical principles are designed to provide guidance to judges and to afford a structure regulating judicial conduct. The values expounded by these ethical principles are:

• Propriety;

• Judicial Independence;

• Integrity;

• Impartiality;

• Equality: and

• Competence and diligence.

Back-Scanning Mandate For Magistrates Court

Back-scanning is an entry point to electronic records in our courts. The long-term impact of this is 100% availability of court records during all court sitting resulting in reduction of backlog caused by missing records/files.

As we still rely mostly on paper processes as opposed to computerized court processes this activity will also reduce the amount of space taken up by records as they will be very compact and easy to store away after they have been scanned. We are about to commence with the first phase of the exercise.

Functions and Supporting Organizational Structure

• MOKHORO THE ADMINISTRATIVE STRUCTURE OF THE SUBORDINATE COURTS  [PPT]

• MOKHORO THE COURT STRUCTURE OF THE SUBORDINATE COURTS  [PPT]

Budget / Sources of Funding

The judiciary’s main source of funding is from Government allocation and the judiciary has to compete for prioritization with the Headquarters of the Ministry of Justice and the many Sections and Departments under Administration and also with the Department of Correctional Services.

Some of the major activities under the 2007/2008 Recurrent budget, inclusive of educational activities, are as follows:

Annual Reports