Basotho Convention Movement & Ano. V The Commissioner of Police & 17 Others (C of A (CIV) No.32/2025) [2025] LSCA 59 (7 November 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CIV) 32/2025 CONST CASE 0009/2025 In the matter between- BASOTHO CONVENTION MOVEMENT 1ST APPELLANT ‘MATHAPELO LEPHOLO 2ND APPELLANT and THE COMMISSIONER OF POLICE OF LESOTHO 1ST RESPONDENT THE TERRITORY OF BASUTOLAND 2ND RESPONDENT THE TERRITORY OF THESOTHO/LESOTHO 3RD RESPONDENT THE PRIME MINISTER OF THESOTHO/LESOTHO 4TH RESPONDENT THE SPEAKER OF THE PARLIAMENT OF THESOTHO/LESOTHO 5TH RESPONDENT THE PARLIAMENT OF THESOTHO/LESOTHO 6TH RESPONDENT THE ATTORNEY GENERAL OF THESOTHO/ LESOTHO THE BASOTHO NATION THE PRESIDENT OF THE RSA 7TH RESPONDENT 8TH RESPONDENT 9TH RESPONDENT THE REPUBLIC OF SOUTH AFRICA 10TH RESPONDENT THE SA HIGH COMMISSIONER 11TH RESPONDENT THE ATTORNEY GENERAL OF RSA 12TH RESPONDENT THE UNITED NATIONS GENERAL ASSEMBLY 13TH RESPONDENT THE UNITED NATIONS SECURITY COUNCIL 14TH RESPONDENT THE AFRICAN UNION (AU) 15TH RESPONDENT HIS MAJESTY THE KING OF THE UNITED KINGDOM OF GREAT BRITAIN (UK) 16TH RESPONDENT THE ATTORNEY GENERAL OF THE UNITED KINGDOM OF GREAT BRITIAN 17TH RESPONDENT ALL THE REGISTERED POLITICAL PARTIES IN LESOTHO 18TH RESPONDENT CORAM: MOSITO, P DAMASEB, AJA MUSONDA, AJA VAN DER WESTHUIZEN, AJA MATHABA, AJA HEARD: 13 OCTOBER 2025 DELIVERED: 7 NOVEMBER 2025 FLYNOTE Constitutional and Administrative Law — Jurisdiction — Foreign States and International Organisations — Sovereign Immunity — Whether Courts of Lesotho have jurisdiction to make orders against foreign governments or international bodies — Distinction between jurisdiction over foreign entities and domestic authorities — Allegations of threats to personal liberty and safety — Duty of courts to safeguard constitutional rights within Lesotho’s territory notwithstanding foreign involvement. Held: The courts of Lesotho lack jurisdiction to issue orders against foreign sovereign states such as South Africa and the United Kingdom, or international organisations like the United Nations, by virtue of the principle of sovereign immunity. However, where relief is sought against domestic authorities for alleged violations of constitutional rights occurring within Lesotho, the courts must consider whether they have jurisdiction over those authorities even when they are sued jointly with foreign governments. The High Court’s failure to determine its jurisdiction over the Government of Lesotho in relation to threats to the liberty and safety of an individual constituted a misdirection. Appeal upheld in part; no order as to costs. JUDGMENT VAN DER WESTHUIZEN, AJA: Introduction [1] This rather bizarre matter is an appeal against the unanimous judgment of the High Court, sitting as a Constitutional Court. The 19 respondents include “The Territory of Basutoland”, “Lesotho”, “The Basotho Nation”, “The President of the Republic of South Africa”, “The Republic of South Africa”, “The Attorney General of the Republic of South Africa” (a position that does not exist), “The United Nations General Assembly”; “The United Nations Security Council”, “The African Union”, “His Majesty the King of the United Kingdom of the Great Britain” (a non-existing state), “The United Kingdom of Great Britain (UK)” and “All the Registered Political Parties”. [2] It is no wonder that the matter revolves around the jurisdiction of the courts of Lesotho. Condonation [3] The appellants sought condonation for the late filing of heads of argument, mainly because a lack of funds. It was granted. Background [4] The first appellant is a political party in Lesotho. Honourable Reverend Dr Ts’ epo Lipholo (Dr Lipholo), a member of Parliament, is its leader. This litigation has been conducted by his spouse, the drafter of the Founding Affidavit, Ms ‘Mathapelo Lipholo, the second appellant. [5] The quest of the first appellant and Dr Lipholo is to regain land they believe should be part of Lesotho from the Republic of Soth Africa, where it unlawfully ended up after the 1869 Convention of Aliwal North, as a result of colonisation, particularly the conduct of the British government and the “Boers”, led by president Brand of the Free State. Land to the north and west of the Caledon river was lost by the then Basotholand, to South Africa. [6] In pursuit of this mission, Dr Lipholo filed a petition with the General Assembly and Security Council of the United Nations, for the return of Lesotho’s land. Understandably, the conduct of Dr Lipholo and his party caused some controversy in Lesotho. In the appellants’ papers, even “bloodshed” is mentioned. The High Court [7] On the basis of urgency, the appellants approached the High Court essentially to enforce the above-mentioned petition. The Court did not regard the matter as urgent, but heard it because of its significance. [8] The appellants sought the following relief in prayer 2 of their Notice of Motion: “ An interdict that the Government of Lesotho acting in concert with the Government of the Republic of South Africa and/or any Governments be retrained and interdicted from arresting and/or causing the arrest of Dr Ts’epo Lipholo and/or subjecting him to any form of torture or violation or threat of life pending finalization of the Basutoland restoration Petition pending finalization pending before the United National General Assembly;” an prayers Further dealt with “interim [9] mandamus/positive interdict” against “the United Nations Security Council” regarding the safety of Dr Lipholo, a “declaratory-interdict” in terms of the … “the UN Convent i.e. International Covenant on Civil and Political Rights (ICCR)” that South African Government’s consideration for giving Lesotho citizens special free movement advantage and/or annexation of Lesotho as the 10th Province of RSA be stayed …, as the consideration constitutes continued acts of aggression against Basotho Nation …”.”. … and “an interdict [10] The High Court did not go into the merits of the appellants’ case. It dealt with jurisdiction only. [11] The application was heard on 30 Apri 2025. On 15 May 2025 the High Court dismissed the application. It indicated that reasons for the order would follow. These were furnished on 2 June 2025 and are dealt with below. [12] Makara J agreed with the order and reasoning of Sekoane CJ. In an additional judgment Hlaele J agreed in toto with the judgment of Sekoane CJ. [13] With reference to the presentation of counsel for the appellants, he addressed, in a judgment of eight pages, “the issue of professional ethics …(m)ore specifically the duties and responsibilities of a legal practitioner towards his client vis a vis the court”. The judge stated, inter alia:”However, bringing a hopeless case before court has the ambiance of bordering on unacceptable, unethical and unprofessional behaviour. This behaviour has unintended but foreseeable consequence of depleting the already burdened judiciary which has to field three judges in a constitutional matter to preside over a matter which counsel should have professionally considered before filing.” [14] The judge concluded: “Both counsels for the Applicants failed to fulfil their professional duty to the court – an obligation that requires them to be meticulous and to present well-researched and cogent arguments. Their failure not only constitutes an abuse of the court process but also squanders scarce resources, reflecting a disregard for the integrity and efficiency of judicial proceedings.” Sekoane CJ and Makara J concurred in the judgment of Hlaele J. Grounds of Appeal [15] The appellants’ Grounds of Appeal were dated 15 May 2025, before the furnishing of the High Court’s reasons. Yet, they purport to quote exact statements made by the Court. For example, the following is stated:”1The Court a quo erred and misdirected deciding that ‘it cannot protect DR LIPHOLO from arrest as he is a fugitive who runs away from justice.” … (a) The Court a quo ought to have refrained from making such a statement ….” During the hearing of this appeal counsel for the appellant conceded that no such statement appeared in the High Court’s written judgment! [16] Ground 3 states: “The Court erred and misdirected itself by having decided that it had no jurisdiction over all the parties … the Commissioner of Police of Lesotho …, the Prime Minister of Lesotho …, Speaker of the Parliament of Lesotho …, Attorney General of Lesotho … Further: (a) the Court a quo ought to have held that it had jurisdiction over: (i) The Government of the Lesotho and the Government of the Republic of South Africa who are sued individually and as joint wrongdoers and that the interdictory Court Orders were to operate in both counties, alternatively; (ii) The Court a quo ought to have issued an interdict against both Lesotho and the Republic of South Africa and that the interlocutory Court Orders were to operate only within the territorial jurisdiction of Lesotho Courts. In the further alternative; (iii) The Court a quo ought to have issued interdictory Court orders against government of Lesotho, which order was to operate only within the territorial jurisdiction of Lesotho Courts.”(sic) Jurisdiction [17] In a well-researched judgment the High Court dealt with the issue of jurisdiction thoroughly and in great detail. It interrogated, amongst other things, sovereign immunity, international organisations' immunity and diplomatic immunity. [18] The Court concluded: “The applicants accept in the founding affidavit that ‘this Court may even have no jurisdiction against independent states and/or extraordinary organisations like UN.’ It is then a mystery how and why they persisted in the argument that this Court should assume jurisdiction. It follows that this Court has no jurisdiction.” [19] The above-mentioned remarks by Sakoane CJ are understandable. The unclear, confusing and downright sloppy language also permeates the papers filed by the appellants throughout. The relief sought by the appellants is farfetched and not grounded in law. [20] However, this is not the end of the matter. The security of the second appellant [21] Allegations about the personal security, possible wrongful arrest and likely torture of the second appellant, Dr Lipholo, are not something to be taken lightly by a court of law. [22] In her founding affidavit, and to establish the urgency of this appeal, the second appellant states that the “essence” of the application before the Constitutional Court was “to restrain the Governments of Lesotho and South Africa from arresting and threatening the life of my husband, for filing the petition in the United Nations for the return of Basutoland which is unlawfully occupied by the Government of South Africa for 62 years”. [23] According to her, the matter was urgent “because it concerns the liberty and threat to the life of my husband …”, who had been accused by the Government of Lesotho of “the serious act of subversion”, in spite of the fact that in the petition it is stated that “his claim has nothing to do with the Government of Lesotho but … involves the Government of South Africa”. She even avers that South African President Cyril Ramaphosa visited Lesotho to participate in the planning of the arrest of Dr Lipholo! [24] The answering affidavit by the first respondent denies that he has “initiated any process that could threaten his liberty” under section 6 of the Constitution. [25] Events around the situation of Dr Lipholo are not easy to follow accurately. It is alleged in the appellants’ papers that he was arrested pending this appeal. During the hearing this Court was informed that he was indeed in prison and had applied for bail. Counsel for both sides agreed that, for now, there was nothing this Court could do about Dr Lipholo’s situation. [26] Another look at the relief south in the Notice of Motion, High Court judgment and Grounds of Appeal and High Court judgment is necessary, though. [27] As found by the High Court, the courts of Lesotho clearly have no jurisdiction over South Africa, other foreign states and the United Nations. However, prayer 2 of the Notice of Motion (in [8] above) and Ground of Appeal 3(a)(iii) (in [16] above) mentions interdictory relief against the Government of Lesotho, to operate within Lesotho. [28] The question whether the High Court indeed had jurisdiction to order the first respondent (the Commissioner of Police of Lesotho) and other relevant arms of the government of Lesotho not to arrest or otherwise threaten the safety of De Lipholo was debated in this Court. On behalf of the respondents, it was argued that the governments of Lesotho and South Africa were alleged to have acted in concert and could not be separated. From the appellants’ side, it was submitted that the Lesotho government could easily have been separated from the government of South Africa. [29] The question before this Court is, of course, neither whether the interdictory relief sought should have been granted, nor even whether the High Court had jurisdiction over the first and other Lesotho government respondents. Did the High Court deal with this point at all? [30] Indeed it did not. As indicated above, the (however clumsy and sloppy) Notice of Motion raised the possibility of separating the government of Lesotho, over which the High Court had jurisdiction, from the government of South Africa, over which it did not. It could be argued that the Court was obliged to attend to the issue, regardless the wild and perhaps ridiculous nature of the appellants’ case. After all, allegations regarding the personal safety of Dr Lipholo – even including torture – were before the Court. In this regard Lesotho’s Commissioner of Police (the first respondent) is perhaps the appropriate party to be addressed. Could there be any reason why the High Court of Lesotho has no jurisdiction over Lesotho authorities? [31] The silence on this issue in the written reasons for the High Court’s finding of the complete absence of jurisdiction indicates a misdirection on the part of the Court. Conclusion [32] As to the jurisdiction of the High Court, regarding all the respondents other than the government of Lesotho, there is no material error or misdirection in the judgment of the High Court. Even if the Court assumed jurisdiction over the government, issues around foreign policy and separation of powers might have been obstacles in the way of interference by a court of law. On this aspect, the appeal must fail. [33] The apparent failure by the High Court to address whether it had jurisdiction regarding the Lesotho government, related to the allegations around the personal safety of the second appellant, is a misdirection. That part of this appeal must be upheld. [34] In view of what is said above about the present situation of the second appellant, his fate at this stage seems to be beyond the reach of this Court. Therefore, the relevance of upholding part of the appeal mainly relates to the general dictates of the responsibility of courts and the issue of costs. Costs [35] Cost must follow the result. This is the well-known general rule. [36] In view of the above, the first respondent should be liable for the costs relating to the issue around the High Court’s jurisdiction in the relief sought against the government of Lesotho regarding the personal safety of the second appellant. [37] As to the part of the appeal that fails – even decisively so – the well-known principle set out in the Biowatch judgment1comes to mind: Citizens, who seek to assert their fundamental rights against the state, should not be discouraged from doing so by the chilling effect of a potentially devastating costs order that may follow failure. [38] Ordering no costs regarding this appeal seems to be a fair and balanced outcome. 1 Biowatch Trust v Registrar: Genetic Resources and Others (CCT 80/08) [2009] Zcc14; 2009 (6) SA 232 Order [39] In view of the above - (1) The appeal fails in part. (2) The appeal is upheld in part. (3) There is no order as to costs. ___________________________________ J VAN DER WESTHUIZEN ACTING JUSTICE OF APPEAL I agree I agree _________________________________ KE MOSITO PRESIDENT OF THE COURT OF APPEAL _______________________________ PT DAMASEB ACTING JUSTICE OF APPEAL I agree I agree ____________________________ P MUSONDA ACTING JUSTICE OF APPEAL _______________________ AR MATHABA ACTING JUSTICE OF APPEAL FOR THE APPELLANTS: ADV F SEHAPI ADV B. SEKONYELA FOR THE FIRST RESPONDENT: ADV LP MOSHOESHOE 13