Realeboha Nkuatsana & Ano. V Minister of Justice, Law and Parliamentary Affairs & 2 Others (C of A (CIV) No 19/2025) [2025] LSCA 50 (7 November 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD IN MASERU In the matter between: C OF A (CIV)/19/2025 REALEBOHA NKUATSANA MASILO MAPHALLA 1ST APPELLANT 2ND APPELLANT AND MINISTER OF JUSTICE, LAW AND PARLIAMENTARY AFFAIRS MINISTER OF PUBLIC SERVICE ATTORNEY GENERAL 1ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT CORAM: MOSITO P SAKOANE CJ DAMASEB AJA HEARD: 10 OCTOBER 2025 DELIVERED: 7 NOVEMBER 2025 FLYNOTE Constitutional Law – Jurisdiction of the High Court – Enforcement of fundamental rights under section 19 of the Constitution – Proper procedure under section 22 of the Constitution and the Constitutional Litigation Rules – Distinction between ordinary and constitutional jurisdiction – Application brought as an ordinary civil claim instead of under section 22 – Non-compliance with constitutional procedure rendering proceedings a nullity – Matter to commence de novo before the High Court exercising its constitutional jurisdiction – Principle against bifurcation of proceedings reaffirmed. Held: Where a litigant invokes the protection of a constitutional right, such as the right to equality under section 19 of the Constitution, the claim must be brought before the High Court exercising its constitutional jurisdiction under section 22, in accordance with the Constitutional Litigation Rules. An application launched under the High Court’s ordinary civil jurisdiction in such circumstances is fatally defective for want of jurisdiction. The High Court should have declined to entertain the matter and directed that it be filed in the Constitutional Division, consistent with Chief Justice v Law Society of Lesotho and Prof Nqosa Mahao v Maqelepo. Appeal dismissed; matter to commence de novo before the Constitutional Division of the High Court; no order as to costs. JUDGMENT SAKOANE CJ: Background [1] On 18 July, 2023, the appellants brought a civil application in the High Court seeking the following orders: “1. That the decision of the Respondents in terms of which they have unfairly discriminated against the Applicants by according them remuneration and grades different from officers holding the same position of Principal interpreter be declared invalid 2. 3. 4. and of no force and effect and therefore null and void in that it contravenes provisions of section 19 of the Constitution. That it shall not be ordered that the Applicants must be graded and remunerated at the appropriate grades equivalent to grades held by Principal interpreters placed at Parliament. That it shall not be declared that Applicants should be accorded the same remuneration, benefits and other privileges enjoyed by other officers holding similarly graded positions of Principal interpreters. That the Respondent shall not be ordered to pay to the Applicants the arrear balances which were supposed to have been paid to them since December 2002 in terms of the decision of the 2nd Respondent. 5. That the Respondents pay costs of this application. 6. Further and or alternative relief.” [2] The nature of their complaint, as articulated in paragraphs 7 and 8 of the founding affidavit is as follows: is unfair discrimination “There and unjustified differentiation between the High Court interpreters and the Parliament interpreters while they hold the same position within the 2nd Respondent having been employed as Principal interpreters. This is worsened further by the fact that the Applicant’s workload is much heftier than that of the Parliament interpreters. I aver that it can be concluded that because there is no rationale policy justification why the Respondents have decided to treat the Applicants differently from their counterparts. Respondents are not justified in a democratic society on principles of equality and this Honourable Court should compel the Respondents to implement the decision to grade Applicants at grade G.” [3] In their opposing papers, the respondents offered an explanation and justification in answer to the appellants’ complaint. [4] The matter was heard by Khabo J. who dismissed the application with costs. Grounds of appeal [5] Dissatisfied with the judgment of the Court a quo, the appellants are before us on the following grounds of appeal: “1. The Court a quo erred and misdirected itself in not finding that Appellants had made a case for discrimination in that: 1.1 The nature of work they do is substantially similar in value to that of their counterparts in the national assembly. 1.2 The positions are similar. 1.3 The entry qualifications in both positions are not the sole determining factor. 2. Appellants reserve their right to file further and better grounds in terms of the Rules.” Lack of Jurisdiction [6] As pleaded, the appellants’ case is that they are graded differently from other interpreters who are employed in Parliament. Hence reference to section 19 of the Constitution which reads thus: “Right to equality before the law and the equal protection of the law 19. Every person shall be entitled to equality before the law and to the equal protection of the law.” [7] Reliance on this constitutional provision should have raised the judicial antennae of the learned judge a quo to detect that the appellants’ civil application was in essence a constitutional complaint that implicated the High Court’s jurisdiction under section 22(1) and (2) of the Constitution and not its ordinary jurisdiction. The section reads as follows: “Enforcement of protective provisions (1) 22. If any person alleges that any of the provisions of sections 4 to 21 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress. (2) The High Court shall have original jurisdiction – (a) (b) to hear and determine any application made by any person in pursuance of subsection (1); and to determine any question arising in the case of any person which is referred to it in pursuance of subsection (3), and may make such orders, issue such process and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 4 to 21 (inclusive) of this Constitution: Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.” [8] Section 22 is a wide road. It is paved with good intentions and unlike the one that leads to destruction in Matthew 7:13- 14, this one leads to the Palace of Justice. [9] Once it is accepted, as it must, that the appellants invoked the Constitution as their shield for protection, they were in law duty-bound to come to the High Court through the door of section 22 and in compliance with the procedure provided by the Constitutional Litigation Rules, 2000 (since repealed and replaced by the High Court Civil Litigation Rule 2024 Part 10). [10] Failure by the appellants to come to the High Court through the right door and in non-compliance with the Constitutional Litigation Rules coupled with the oversight of the learned judge a quo rendered the civil application dismissible on the single ground of lack of jurisdiction. [11] That this should be the fate of this appeal is confirmed by two judgments of this Court in Chief Justice v. Law Society of Lesotho1 and Prof Nqosa Mahao and Others v. Maqelepo and Others2. [12] In Chief Justice, this Court spoke in no uncertain terms that: “[4] A practice appears to have grown up, at least over the last 12 years, that where the High Court exercises its constitutional jurisdiction in a matter which involves a challenge to the constitutionality of legislation or delegated legislation, the matter is heard, where possible, by a Bench comprising three judges. See e.g. Sole v Cullinan NO and Others LAC (2000-2004) 572; Tṡepe v Independent Electoral Commission and Others LAC (2005-2006) 169; Minister of Labour and Employment and Others v Tṡeuoa LAC (2007- 2008) 289; Makamane’s case (supra) and, more recently Tṡenoli NO v Lesotho Revenue Authority and Others LAC (2011-2012) 328. Litigants will therefore have come to expect that such matters will be heard by three judges of the High Court and, in the event of the matter coming on appeal to this Court, by a Full Bench of five judges of this Court. … [13] By invoking s 12(1) and (8) of the Constitution the provisions of s 22 (1) of the Constitution are brought into play. By its own account the Law Society is seeking redress in the High Court in the exercise of its constitutional jurisdiction. That being the case the Law Society, in bringing its application, was obliged to comply with the Constitutional Litigation Rules (the validity of which has not been challenged). That it failed to do. Instead it followed the Rules of Court applicable to the High Court exercising its ordinary jurisdiction. As Nomngcongo J pointed out in Morienyane’s case in my view correctly, a constitutional challenge cannot properly be brought before a judge exercising his ordinary jurisdiction, which is what happened in the present instance. Monapathi J should therefore have upheld the appellants’ objection to the matter proceeding before him under his ordinary jurisdiction. (supra), 1 LAC (2011-2012) 255 2 C of A (CIV) No.3/2025 (2 May 2025) issue, will alert whoever [14] The objection is not a purely technical one. Where different rules regulate different procedures it is incumbent upon a litigant to follow the correct procedure. Were that not so the Constitutional Litigation Rules might become redundant. The invocation of these rules, and the allocation of a number by the registrar designating the matter as one is raising a constitutional responsible for arranging the roll that the matter is one which may require a complement of three judges, and presumably the Chief Justice would be advised accordingly. If the proper route had been followed in the present instance then, given the importance of the issues raised in the application and the fact that it involved a challenge to the constitutionality of subordinate legislation involving the determination of matters in the High Court, it is a matter of high probability that the hearing of the application would have been set down before a three-judge panel, particularly having regard to what appears to be the established practice in such matters. Consequently, the appellants have been denied a hearing before three judges in the High Court exercising its constitutional jurisdiction to which they were entitled. In all the circumstances it is somewhat surprising, to say the least, that Monapathi J was prepared to hear the matter as a single judge exercising his ordinary jurisdiction. [15] In my view the appeal must succeed on the jurisdiction issue. The matter will have to commence de the High Court, exercising constitutional novo jurisdiction, in accordance with the Constitutional Litigation Rules. The matter should be heard by three judges.” in [13] In Prof. Nqosa Mahao this Court was pellucid: “Whether matter could be bifurcated [37] The final reliefs sought by the respondents which are founded or based on provisions of the Constitution of Lesotho are issues for the Constitutional Division of the High Court. The other final reliefs are determinable by the High Court in exercise of its ordinary jurisdiction. The question arises as to which court should the respondents’ application have been taken. The appellants contend that because two purely constitutional issues are raised, the respondents should have lodged the application in the Constitutional Court. This in substance is an assertion that the High Court, qua High Court, had no jurisdiction to entertain the application. In this regard they refer to s 22 of the Constitution and the decision in Democratic Congress v Independent Electoral Commission in which the Chief Justice categorically stated that remedies for violation of rights or non-compliance with the Constitution fall within the exclusive jurisdiction of the Constitutional Court. [38] In my view litigation or a case may not be bifurcated, with portion of it in one court and another portion in another court. The proper and obviously convenient approach is to take the matter to a court that enjoys jurisdiction in respect of all issues in the case. In the matter at hand, to avoid the bifurcation of the proceedings, the respondents should have taken their application to the Constitutional Court which could deal not only with the reliefs peculiarly for it to determine but also with those reliefs which the High Court could well have dealt with. In the circumstances of this case, the High Court should have declined jurisdiction in deference to the Constitutional Court, which as a Division of the High Court could exercise jurisdiction in respect of all the reliefs sought, whether interim or final.” [14] Thus, the failure of the appellants to follow the unfoggy section 22 road to the High Court when they brought the civil application renders their appeal ill-fated. They will have to re-trace their steps and find the section 22 road to the Constitutional Division of the High Court. Order [15] In the result, the following order is made: 1. The appeal is dismissed. 2. The order of the court a quo is set aside. 3. The application is to be commenced de novo before the High Court exercising its constitutional jurisdiction in terms of section 22 read with the High Court Civil Litigation Rules, 2025 Part 10. 4. There will be no order as to costs. ______________________________ S. P. SAKOANE CHIEF JUSTICE ____________________________ K. E. MOSITO PRESIDENT OF THE COURT OF APPEAL I agree I agree ___________________________ P. T. DAMASEB ACTING JUSTICE OF APPEAL FOR THE APPELLANTS: S. S. TSABEHA FOR THE RESPONDENTS: L. TAU 10