Hlomohang Morokole & 4 Others V The Principal Secretary , Ministry of Foreign Affairs and International Relations & 2 Others (C of A (CIV) No 15/2025) [2025] LSCA 48 (7 November 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CIV) NO. 15/2025 CIV/APN/0173/2023 In the matter between: HLOMOHANG MOROKOLE SEKOBOTO MOLISE MOLEFI MATSOSO LIRANYANE THAMAE MAPILOKO MATHIAS CHOPHO AND 1ST APPELLANT 2ND APPELLANT 3RD APPELLANT 4TH APPELLANT 5TH APPELLANT THE PRINCIPAL SECRETARY – MINISTRY OF FOREIGN AFFAIRS AND INTERNATION RELATIONS 1ST RESPONDENT THE MINISTER OF FOREIGN AFFAIRS AND INTERNATIONAL RELATIONS THE ATTORNEY GENERAL 2ND RESPONDENT 3RD RESPONDENT CORAM: MOSITO P SAKOANE CJ MUSONDA AJA HEARD: 13 OCTOBER 2025 DELIVERED: 07 NOVEMBER 2025 FLYNOTE Administrative Law — Judicial review — Diplomatic service — Irrational and unequal treatment — Failure to convert salaries of South African-based diplomats into United States dollars while doing so for other missions — Whether exclusion rational and legally defensible — Reviewability of executive policy — High Court’s failure to address substantive review grounds — Serious misdirection. Prescription — Government Proceedings and Contracts Act 1965, s 6 — Whether applicable to review proceedings — Requirement that prescription be specifically pleaded and proved — Onus on the party alleging it — Court may not raise prescription mero motu. Contract — Incorporation of terms — Requirement of notice and intention to be contractually binding — Exclusionary savingram not forming part of contracts of service — No evidence that appellants were aware of or consented to it. The appellants, former and serving diplomats of Lesotho stationed in South Africa, sought review of the Government’s decision to exclude them from a uniform salary-conversion policy applied to other missions. The High Court (Makara J) dismissed the application, holding that the appellants were bound by their contracts, that the exclusion had been incorporated into those contracts, and that their claims were prescribed under s 6 of the Government Proceedings and Contracts Act 1965. Held, allowing the appeal — 1. Prescription under s 6 of the 1965 Act does not apply to review proceedings, which concern the legality of administrative acts rather than private claims. Prescription must be specifically pleaded and proved; it cannot be raised mero motu by the court. 2. There was no evidence that the appellants were informed of, or agreed to, the exclusionary Savingram at the time of contracting. A contractual term is incorporated only if reasonable notice of it is given before or at the time of contract formation and if it appears in a document intended to have contractual effect. 3. The High Court’s failure to engage with the substantive review grounds— particularly the complaints of irrationality, unequal treatment, and lack of justification—constituted a serious misdirection. Courts must examine the material issues placed before them; a focus on contractual formalities to the exclusion of substantive legality is an error of law. Appeal upheld; judgment of the High Court set aside; matter remitted for rehearing before a different judge; respondents to pay costs. MOSITO P Introduction [1] This appeal arises from the judgment of the High Court delivered on February in case number CIV/APN/0173/2023. At the time of the institution of that application, some of the appellants—then applicants before the High Court—had completed their diplomatic service. At the same time, others remained in active service at various Lesotho Missions in the Republic of South Africa. [2] On 21 June 2023, the appellants approached the High Court seeking, by notice of motion, orders reviewing and setting aside the decision of the government of Lesotho to exclude members of its diplomatic missions in South Africa from the conversion of their salaries into United States dollars. They also sought declaratory and consequential reliefs for recalculation and payment of their arrears in accordance with a Savingram dated 26 June 2006. [3] The 2006 Savingram, issued by the Ministry of Foreign Affairs and International Relations and addressed to all Lesotho Missions abroad, directed that, effective July 2006, salaries and allowances of diplomatic personnel were to be converted into the host country’s local currency at the prevailing bank rate, in line with recommendations of the Auditor-General. However, a subsequent Savingram, dated 1 November 2006 and addressed solely to the Consulate of Lesotho in Pretoria, limited the application of this conversion in respect of South African missions to allowances only, thereby excluding salaries. [4] Further clarification came in a Savingram of 24 May 2012, which explained the conversion formula to be applied across missions. The net effect was that, while salaries and allowances for personnel posted in other countries were converted in accordance with the 2006 directive, only allowances—not salaries—were converted for those stationed in South Africa. [5] The appellants challenged this exclusion as arbitrary, irrational, and unsupported by any discernible justification or empirical basis. They contended that the decision created an unjustifiable disparity between diplomats in South Africa and their counterparts elsewhere, notwithstanding their identical status under Lesotho’s foreign service framework. Proceedings in the High Court [6] The respondents resisted the application, arguing that the impugned decision was an executive policy matter falling outside judicial scrutiny. They further maintained that any disparity was justified by differing local conditions and contractual arrangements. The High Court (Makara J) dismissed the application. The court held that the appellants were bound by the terms of the contracts they had signed, which, according to the court, incorporated the impugned exclusion. The learned judge further held that the claims were prescribed under section 6 of the Government Proceedings and Contracts Act No. 4 of 1965. [7] The court did not engage with the substantive grounds of review. Its decision turned primarily on the findings that: (a) the appellants were aware of and had accepted the exclusionary terms at the time of contracting, and (b) the claims were brought outside the statutory period. [8] Aggrieved by that outcome, the appellants now appeal to this Court. Their grounds may be summarised as follows: First, the learned judge erred in holding that the appellants were aware of, and had consented to, the exclusion contained in the second Savingram when they accepted their diplomatic appointments. There was, they argue, no evidence to support such a finding. Second, the court erred in applying the doctrine of prescription. The point was neither pleaded nor supported by the facts, since some appellants had not yet completed two years in service when proceedings commenced. Third, the court erred in law in applying prescription to a review application, which, properly understood, is governed by principles of administrative law and not by the Government Proceedings and Contracts Act. Lastly, the court further erred in failing to engage with, or determine, the merits of the review grounds, including the alleged irrationality, unreasonableness, and want of justification in the impugned decision. Issues for Determination [9] The central questions before this Court are thus: first, whether the High Court was correct to hold that the appellants’ claims were prescribed; second, whether the appellants had, by contract or otherwise, waived any entitlement to parity of treatment with other missions; and lastly, whether the High Court erred in failing to address the substantive review grounds relating to reasonableness and rationality of the government’s decision. The Law [10] The principles governing review are well established. Decisions of the executive are reviewable where they are irrational, illegal, unreasonable, or procedurally unfair. While the courts are slow to interfere with policy decisions, such restraint does not amount to abdication. Where the decision bears upon constitutional or administrative legality, it is open to scrutiny. [11] The decisions of this Court have consistently affirmed that prescription is not a matter that the court may raise mero motu (of its own motion), but rather one that must be specifically pleaded by the party who seeks to rely on it. The principle is rooted both in procedural fairness and in the adversarial nature of litigation, which requires each party to frame its case in the pleadings so that the opposing party knows the case it must meet. [12] In Basotho Enterprises Development Corporation v Lesotho Bank1, this Court made it clear that prescription, being a defence that extinguishes a debt or bars a claim, must be distinctly raised in the pleadings. The Court held that it is not open to a defendant to rely on prescription unless it has been pleaded with sufficient particularity to inform the plaintiff of the factual basis of the defence. The rationale, the Court observed, is that prescription is not a matter going to jurisdiction but to the substantive extinguishment of a right, and fairness demands that the plaintiff be given an opportunity to respond or to invoke interruption or suspension of prescription if applicable. The same principle was restated in Mokhesi v Lesotho Bank2, where the Court emphasised that prescription must be expressly pleaded as a special plea. In Mokhethi v Commissioner of Police and Another3, this Court reaffirmed the settled rule that prescription must be pleaded and proved. It held that the plea of prescription is not one of mere formality; it is a substantive defence which, if not raised, cannot be considered by the court. The Court, citing Santam Insurance Co Ltd v Vilakazi4, observed that the plea must be raised “clearly and unambiguously” to enable the plaintiff to meet it by showing, for example, that prescription was interrupted or suspended. This position was echoed in Attorney General v Phafane5, where the Court criticised the High Court for upholding prescription when the defence had not been specifically pleaded. The Court held that it was a serious procedural 1 Basotho Enterprises Development Corporation v Lesotho Bank LAC (1985–1989) 395. 2 Mokhesi v Lesotho Bank LAC (1995–1999) 346. 3 Mokhethi v Commissioner of Police and Another C of A (CIV) No. 14/2007. 4 Santam Insurance Co Ltd v Vilakazi 1967 (1) SA 246 (A). 5 Attorney General v Phafane LAC (2009–2010) 482. irregularity to decide a matter on a ground not raised by the parties. The Court stressed that the purpose of pleadings is to define the issues between the parties, and that the court may not wander beyond those boundaries. The burden of proof lies on the party alleging that the claim has prescribed, and that mere passage of time or delay in institution of proceedings does not suffice. The Court also noted that failure to raise the plea timeously may amount to tacit waiver of the defence. [13] The Court rejected the notion that prescription could be inferred from general denials or from the facts emerging in evidence. It held that even if the record shows that the debt is old or time-barred, the court cannot apply prescription unless the defence has been raised in the pleadings. The Court reasoned that failure to plead it amounts to a waiver of the right to rely upon prescription. [14] From this line of authority, a coherent jurisprudential principle emerges: (a), prescription it is a special plea that cannot be raised informally or left to inference.(b), since it is not a jurisdictional question but an affirmative defence.(c), Failure to plead prescription constitutes waiver, and the court will proceed to adjudicate the claim on its merits. (d),The onus of proof rests on the party raising the prescription, who must establish when the cause of action arose and that the statutory period has elapsed. [15] As to whether the special plea of prescription has any application to judicial review proceedings—which are concerned not with the vindication of private rights but with the supervision of public power and the legality of administrative action—I do not consider it necessary to reach a definitive conclusion, given the view I have already taken. It suffices to observe that the jurisprudence reveals an undercurrent of caution. The courts have neither entirely excluded nor fully embraced the special plea in review proceedings. Its invocation has been treated as exceptional, to be justified by the particular circumstances of the case and tested against the governing imperatives of judicial review— expedition, clarity, fairness, and the overarching public interest in the prompt and effective correction of unlawful administrative action. [16] In my respectful view, therefore, while the doctrine of special pleas is not wholly inapplicable to judicial review, its deployment must be confined within narrow and carefully circumscribed limits. A respondent may raise a special plea only where it neither undermines the primacy of the merits review nor introduces procedural complexity or delay inimical to the public interest in efficient administration, and only if it is pleaded with clarity and precision. Even then, the court may properly determine such a plea alongside or within the hearing of the merits, rather than as an independent interlocutory matter. The discipline of review, with its emphasis on legality and good governance, must not be subordinated to procedural formality. Consideration of the Appeal [17] The finding that the appellants were aware of the second Savingram at the time of contracting is unsustainable. In the first place, for a term to be considered incorporated into a contract, notice of that term must be given before or during the time of contracting, something established.6 The second rule required for clauses to be considered incorporated is that they must be found in a document intended to be contractually binding.7The third rule is that "reasonable steps" must be taken by the party who forms the term to bring it to the attention of the other party.8 In the present case, there is no evidence that the exclusionary policy formed part of their contractual terms, or that it was drawn to their attention. In contract law generally, the party who asserts that a term was incorporated into a contract bears the onus of proving that it was, in fact, part of the contract and that the other party was aware of it. [18] Likewise, the reliance on prescription was misplaced. There is nothing on record showing that the special plea of prescription was either pleaded or evidence heard thereon. As this Court stated in Teboho Modia V Commissioner of Police,9 ‘ [t]he failure of the High Court to hear evidence in order to adjudicate a special plea based on alleged prescription is indeed fatal.’ The issue was not pleaded, and the proceedings were instituted within a reasonable time following the appellants’ discovery of the exclusion. Furthermore, a plea or opposition that relies on section 6 must be expressly stated in the answering affidavit or plea, setting out when the cause of action arose and when the proceedings were instituted. If the respondents omit that, the court cannot raise prescription on its own initiative. The onus of proving prescription rests upon the party asserting it. Prescription is a defence which 6 Olley v Marlborough Court Hotel [1949] 1 KB 532.[2] 7 McKendrick, Ewan (2007). Contract Law (7th ed.). Palgrave Macmillan. ISBN 0-230-01883-1, at p.191. 8 Ibid, at p.191. 9 Teboho Modia V COMPOL (C of A (CIV) 76/2024) at para 8. must be specifically pleaded; it does not arise automatically by the mere passage of time. The court will not raise prescription mero motu, because it depends on factual allegations (date of debt, interruption, acknowledgement) which only the defendant can establish. [19] Most importantly, the High Court’s failure to examine the substantive review grounds amounted to a serious misdirection. A court's failure to examine substantive review grounds means it has neglected to consider the merits or substance of a decision. The appellants’ complaints of irrationality and unequal treatment were not addressed. The court’s focus on contractual formalities diverted attention from the true issue: whether the exclusion of South African missions from a uniform salary-conversion policy was legally and constitutionally defensible. It is well settled that a court must deal with the material arguments raised before it; failure to do so constitutes a misdirection. [20] In a review setting, the court’s failure to apply its mind to the issues is a well-recognised ground of objection: such a decision evinces that the decision-maker ignored relevant considerations or acted arbitrarily. The decision must be taken via a procedure rationally connected to the empowering purpose; a court which avoids that test and instead focuses on peripheral formalities commits a legal error. Accordingly, the High Court’s failure in this case to engage with the appellants’ substantive allegations of irrationality and unequal treatment represents a serious misdirection, rendering its decision unsafe. Disposal [21] As a result, the appeal must succeed. The judgment of the High Court must be set aside. The matter must be remitted to that court for consideration and determination of the merits of the appellants’ review application in accordance with the law. Order [22] In the result: [a] The appeal is upheld. [b] The judgment of the High Court in CIV/APN/0173/2023 is set aside. [c] The matter is remitted to the High Court for rehearing before a different judge. [d] The respondents shall bear the costs of this appeal. I agree: I agree: ______________________________ K. E. MOSITO PRESIDENT OF THE COURT OF APPEAL _____________________________ S P SAKOANE CHIEF JUSTICE _____________________________ P MUSONDA ACTING JUSTICE OF APPEAL FOR APPELLANTS: FOR FIRST RESPONDENTS: MR T. LEBAKENG ADV. P B T N THAKALEKOALA