1 Introduction
The administration of justice in Lesotho’s appellate courts continues to be marred by persistent dysfunction in the preparation, filing and preservation of records of proceedings. These failures, entrenched for decades, undermine both procedural fairness and the constitutional guarantee of a fair trial. Records of proceedings are not mere technicalities; they form the evidentiary basis of appellate adjudication and embody the litigant’s right to challenge judicial decisions. Their absence or defective preparation therefore transforms administrative failure into a constitutional scandal.
2 Constitutional and Legal Framework
The Constitution of Lesotho designates both the High Court and the Court of Appeal as superior courts of record. This status is not symbolic. It imposes a duty to maintain accurate, permanent and authoritative accounts of proceedings. Section 12(3) of the Constitution further entrenches the right of accused persons to obtain records within a reasonable time, tying record-keeping directly to the right to a fair trial.
The Court of Appeal Rules 2006 and the High Court Civil Litigation Rules 2024 allocate responsibilities across multiple actors, appellants, legal practitioners, the Director of Public Prosecutions and the Registrar. Appellants must file records within three months of noting an appeal, while the Registrar bears custodial responsibility for ensuring access and reconstruction where records are missing. Non-compliance attracts consequences ranging from striking-off appeals to punitive costs de bonis propriis.
3 Case Law and Judicial Frustration
Lesotho jurisprudence reveals a long history of judicial condemnation of defective or missing records:
- Lesotho Electricity Corporation v Forrester (1970–79 LAC 321): The Court criticised a voluminous yet deficient record, warning that future appeals may be struck off with costs.
- Makenete v Lekhanya NO (1990–94 LAC 127): The Court expressed frustration at the “lamentably lax attitude” of practitioners towards the rules, refusing condonation for late filing.
- Qhobela v Attorney General (1990–94 LAC 243): The Court declined condonation for excessive delay, emphasising the respondent’s right to finality.
- Seate v R (2000–04 LAC 215): Ramodibedi JA decried sloppy records as an “insult” to the court, signalling stricter accountability measures including personal costs.
- Molapo v R (2000–04 LAC 23): Faced with prosecutorial delay, the Court pragmatically proceeded on incomplete material to safeguard the appellant’s right to timely justice.
These cases reflect a recurring pattern: records that are either incomplete, missing or filed out of time, often without adequate explanation. The Court of Appeal’s responses, ranging from condonation in exceptional public-interest cases to punitive costs in flagrant breaches, demonstrate the tension between procedural discipline and substantive justice.
4 Consequences for Justice
The persistent failure to secure accurate records strikes at the core of Lesotho’s justice system. Litigants are denied the ability to properly frame appeals, appellate judges are forced to adjudicate on fragmented evidence, and public confidence in the judiciary is eroded. What begins as professional negligence or administrative inefficiency cascades into a constitutional failure: the denial of a fair hearing under section 12 of the Constitution.
5 Towards Reform
The jurisprudence and scholarly commentary converge on the need for urgent reform. Several recommendations are apposite:
- Technological modernisation: adoption of digital recording, transcription and case management systems to replace outdated manual methods.
- Professional accountability: stricter judicial scrutiny of practitioners’ certifications of record completeness, with adverse personal cost orders for negligence.
- Registrar reform: adequate staffing, training and secure preservation of court records.
- Judicial responsibility: timely delivery of written judgments and orders, backed by disciplinary consequences for undue delay.
- Holistic implementation: coordinated reform across the judiciary, legal profession and government to ensure that constitutional guarantees of fair trial and appellate justice are not hollow.
6 Conclusion
The systemic dysfunction surrounding records of proceedings in Lesotho’s Court of Appeal reveals a judiciary in crisis. Despite decades of judicial warnings, the culture of procedural neglect persists. The result is delayed justice, denied appeals, and a collapse of public trust. Unless institutional modernisation and professional accountability are urgently embraced, the constitutional promise of fair trial rights risks being reduced to an empty label.