Jurisdictional and Constitutional Analysis of Lesotho Courts in Khetheng v Pierre Dispute

# Khetheng (Pty) Ltd v Pierre: Analysis of Jurisdiction

1. The Hierarchical Structure of the Courts and the Jurisdiction of the Central Chief’s Court

The judicial power in Lesotho is established by the Constitution of Lesotho 1993. Section 118 of the Constitution creates the courts of Lesotho, which consist of the Court of Appeal, the High Court, Subordinate Courts, and such other courts as may be established by an Act of Parliament. This provision sets up a clear hierarchy of judicial authority.

The path of judicial authority begins with the lowest courts and moves upwards. At the bottom are the Local and Central Courts, which were established under the Central and Local Courts Proclamation 62 of 1938. These courts are primarily tasked with administering customary law, although they have some limited jurisdiction in criminal and civil matters defined by statute. Above them are the Subordinate Courts, also known as Magistrates’ Courts, which are established by the Subordinate Courts Order 1988. These courts have wider civil and criminal jurisdiction which is, however, limited by territory and the value of the claim.

The next court in the hierarchy is the High Court of Lesotho. The High Court is established by Section 119 of the Constitution. It has unlimited original jurisdiction to hear and determine any civil or criminal proceedings. This means there is no limit on the type or value of the case it can hear. It also has supervisory and review jurisdiction over all subordinate courts, tribunals, and administrative bodies.

At the apex of the judicial system is the Court of Appeal. Section 123 of the Constitution establishes the Court of Appeal. It is the final appellate court in Lesotho and hears appeals from decisions of the High Court. There is no further appeal from the Court of Appeal. The path of judicial authority therefore runs from the Central Courts, to the Subordinate Courts, to the High Court, and finally to the Court of Appeal.

In the scenario, Pierre’s attorney has filed an action in the Central Chief’s Court in Maseru. To advise Pierre on whether this court has jurisdiction, we must look at the law governing these courts. The jurisdiction of Central Courts is set out in the Central and Local Courts Proclamation. Section 8 of this Proclamation grants these courts jurisdiction in civil matters only where the parties are members of the Basotho nation, the matter is of a customary nature, and the value of the claim is very small.

The dispute between Khetheng and Pierre is a commercial contract dispute valued at M650,000. Firstly, Pierre is a French national, not a Mosotho, so the court lacks jurisdiction based on the parties. Secondly, the dispute arises from a modern commercial supply agreement, which is not a matter of customary law. Thirdly, the amount claimed far exceeds the very limited monetary jurisdiction of the Central Courts. Therefore, the Central Chief’s Court possesses no judicial authority or civil jurisdiction to hear this case. The action has been brought in the wrong court and should be dismissed for lack of jurisdiction.

2. Territorial and Pecuniary Jurisdiction for Khetheng’s Claim

To determine the correct court for Khetheng’s intended claim of M450,000, it is necessary to analyse the rules of territorial and pecuniary jurisdiction for both the Subordinate Courts and the High Court.

Territorial Jurisdiction

Territorial jurisdiction determines which specific court in a country is the appropriate one to hear a case, based on geographical links to the parties or the dispute. The general common law principle is *actor sequitur forum rei*, which means the plaintiff must sue the defendant in the court of the area where the defendant resides. Pierre resides in Maseru, which means the Maseru Magistrate’s Court or the High Court (which sits in Maseru) would have jurisdiction based on his residence.

Additionally, jurisdiction can be established based on where the cause of action arose (*ratione rei gestae*). In this case, the contract was signed in Maseru, but delivery and the alleged breach (defective goods) occurred in Maputsoe. Under Section 17(1)(a) of the Subordinate Courts Order 1988, a subordinate court has jurisdiction if the cause of action “arose wholly” within its district. Since parts of the cause of action arose in both Maseru and Leribe districts, it may be argued that no single subordinate court has jurisdiction on this basis alone. However, the High Court’s jurisdiction is not so limited.

A key factor here is that Pierre is a foreign national, known in law as a *peregrinus*. The High Court of Lesotho has inherent jurisdiction to hear cases against a *peregrinus* if there is a link connecting the case to Lesotho. One way to establish this link is by attaching the *peregrinus*’s property to confirm or found jurisdiction (*ad confirmandam/fundandam jurisdictionem*). Pierre’s Mercedes-Benz vehicle, although located in Mafeteng, is a movable asset within Lesotho. Khetheng can make an *ex parte* application to the High Court for an order to attach this vehicle. The attachment of the car in Mafeteng would be sufficient to confirm the High Court’s jurisdiction over Pierre for the claim of M450,000. The Subordinate Courts do not have this inherent power to attach property to confirm jurisdiction against a *peregrinus*.

Pecuniary Jurisdiction and Interim Relief

Pecuniary jurisdiction relates to the monetary value of a claim. The Subordinate Courts have their monetary jurisdiction limited by statute. The claim Khetheng wants to make is for M450,000. According to the Subordinate Courts (Increased Jurisdiction of Senior Resident Magistrates) Notice, 2018, the civil jurisdiction of a Senior Resident Magistrate is limited to claims not exceeding M50,000. Khetheng’s claim of M450,000 is therefore far above the limit of the Senior Magistrate’s Court. In contrast, the High Court, under Section 119 of the Constitution, has unlimited original jurisdiction and can hear claims of any value. The High Court is therefore the only court with the necessary pecuniary jurisdiction to hear this matter.

Khetheng wants to stop Pierre from leaving Lesotho using an arrest *tanquam suspectus de fuga* (arrest of a person suspected of fleeing). Section 24 of the Subordinate Courts Order 1988 does provide for such an arrest. However, a court can only grant such an interim order if it has jurisdiction over the main claim. Since the Subordinate Court does not have the pecuniary jurisdiction to hear the M450,000 claim, it cannot grant an ancillary order like an arrest *tanquam suspectus de fuga* in relation to that claim.

Therefore, Khetheng must bring its entire case before the High Court of Lesotho. It is the only court that has both the territorial jurisdiction (confirmable by attaching the car) and the pecuniary jurisdiction (unlimited) to hear the claim. Khetheng should apply to the High Court for the arrest *tanquam suspectus de fuga* and for the attachment of the Mercedes-Benz to confirm jurisdiction and secure the debt.

3. Jurisdiction for Constitutional Challenges

When Khetheng’s legal team wishes to challenge the constitutionality of a provision of the Subordinate Courts Order 1988, it must approach the correct court with the jurisdiction to hear such matters.

The foundation for constitutional law in Lesotho is Section 2 of the Constitution, which declares the Constitution to be the supreme law of Lesotho. It states that if any other law is inconsistent with the Constitution, that other law shall, to the extent of the inconsistency, be void. This principle of constitutional supremacy empowers the judiciary to conduct judicial review and strike down legislation.

The primary court vested with the power to interpret the Constitution and adjudicate constitutional matters is the High Court. Section 22(1) of the Constitution grants the High Court special jurisdiction to hear and determine any application by a person who alleges that a provision of the Bill of Rights (Chapter II of the Constitution) has been, is being, or is likely to be contravened in relation to him. Khetheng’s argument that the monetary limits breach the right to a fair trial would fall under this section. Furthermore, Section 119 of the Constitution grants the High Court unlimited original jurisdiction, which is understood to include the power to adjudicate on any question of law, including constitutional law. Therefore, the High Court is the court of first instance for all constitutional challenges.

It is important to differentiate between the High Court’s two functions. When the High Court sits as a regular court of civil instance, it hears ordinary disputes like debt collections, contractual disputes, or delicts. In this role, it applies statutes as they are written. For example, when hearing Khetheng’s M450,000 claim, it would be acting as a court of civil instance.

However, when the High Court is asked to determine whether a law passed by Parliament is constitutional, it sits as a Constitutional Court. In this capacity, it does not merely apply the law but measures it against the supreme law, the Constitution. If it finds the legislation wanting, it has the power to declare it invalid. Khetheng’s challenge to the Subordinate Courts Order would require the High Court to sit in its constitutional capacity.

If the High Court makes a determination on the constitutionality of the statute, an appeal from that decision would lie with the Court of Appeal. Section 129(1)(a) of the Constitution states that an appeal shall lie as of right to the Court of Appeal from final decisions of the High Court in any civil or criminal proceedings on questions as to the interpretation of the Constitution. This means that whichever party loses the constitutional argument in the High Court can appeal that specific constitutional ruling to the Court of Appeal, which is the final arbiter on all legal matters in Lesotho, including the interpretation of the Constitution. The path for Khetheng’s challenge is therefore to initiate proceedings in the High Court, with a potential final appeal to the Court of Appeal.

References

• Central and Local Courts Proclamation 62 of 1938.
• Constitution of Lesotho 1993.
• Subordinate Courts Order 9 of 1988.
• Subordinate Courts (Increased Jurisdiction of Senior Resident Magistrates) Notice, 2018 (Legal Notice No. 63 of 2018).