Introduction
The Court of Appeal of Lesotho has issued an important interlocutory ruling in the governance dispute surrounding the National University of Lesotho (“NUL”), halting the ongoing process to recruit, select and appoint a new Vice-Chancellor pending the determination of substantive proceedings before the High Court.
Beyond its immediate effect on the University, the ruling is best understood as an administrative law decision. At its core lies a question that recurs throughout public law in Lesotho: may a statutory body exercise a power that its empowering legislation has conferred on it, in circumstances and at a time the legislation does not yet permit? The Court’s answer, to preserve the legal position until that question is finally decided, reflects the central role that judicial review plays in policing the exercise of public power in this jurisdiction.
The Court was careful to stress that the ruling is interlocutory and does not determine the legality of the disputed recruitment process. Even so, the order engages several of the foundational doctrines of administrative law: legality and ultra vires, the existence of jurisdictional facts as preconditions to the exercise of a statutory power, the distinction between a discretionary power and a mandatory statutory duty, and the requirements for interim relief pending review.
The Administrative Law Setting in Lesotho
Lesotho has no statute codifying administrative law. There is no local equivalent of South Africa’s Promotion of Administrative Justice Act (PAJA). Administrative justice therefore rests almost entirely on the common law of judicial review, supplemented by the Constitution of Lesotho, 1993.
That common law is shared, in substance, with South Africa’s Roman-Dutch tradition, overlaid with a strong English public-law influence. Lesotho’s superior courts have long drawn on South African authority on the grounds of review, and the modern principle of legality. The requirement that every exercise of public power find its source in, and remain within the bounds of, law, has become an increasingly important pathway for review.
The institutional anchor is section 119 of the Constitution, which vests the High Court with review powers over any tribunal, board or officer exercising a judicial, quasi-judicial or administrative function under any law. A statutory body such as the NUL Council, exercising powers conferred by the National University of Lesotho Order, 1992, falls squarely within that supervisory jurisdiction.
Background to the Dispute
The dispute arises from steps taken by the NUL Council to recruit a successor to the incumbent Vice-Chancellor, Professor Isaac Olusola Fajana, whose term of office is due to expire on 31 July 2026.
The Pro-Vice-Chancellor, Professor Kananelo Mosito, challenged the recruitment process. His central contention is one of legality: the power to recruit a new Vice-Chancellor, he argues, only arises once the office becomes vacant, and the Council acted prematurely and therefore unlawfully, by commencing recruitment while the incumbent remained in office. He further contends that the governing legislation already provides for continuity of leadership should the office fall vacant.
Pending determination of that substantive challenge, Professor Mosito sought relief preventing the recruitment process from continuing. The Court of Appeal granted the preservative relief sought and stayed the recruitment-related activities pending the outcome of the litigation.
The Recruitment Decision as Reviewable Administrative Action
The starting point of an administrative law analysis is characterisation. The NUL Council is a creature of statute. The decision to recruit a Vice-Chancellor is an exercise of public power by a statutory body acting under its empowering legislation, and it is therefore amenable to judicial review on the ordinary grounds.
Once the decision is characterised in this way, the familiar question follows: was the power exercised within the four corners of the statute that confers it? An administrative body has only the powers the legislation gives it, exercisable only in the manner and the circumstances the legislation prescribes. Where a body acts outside those limits, its conduct is ultra vires and liable to be set aside.
Legality and the Vacancy as a Jurisdictional Precondition
The most analytically significant feature of the challenge is that it turns on a precondition to the exercise of power. On the Pro-Vice-Chancellor’s case, the existence of a vacancy is not merely the occasion for recruitment but a condition that must objectively exist before the power to recruit arises at all.
In administrative law terms, this is the language of the jurisdictional fact: a state of affairs that must genuinely be present before a public body may lawfully act. If the relevant fact does not exist, the body has no power to act, and a decision taken in its absence is invalid regardless of the body’s good faith or the merits of its eventual choice. Whether the relevant provisions of the 1992 Order are properly read as making a vacancy a precondition to recruitment, or merely as regulating the timing of an existing power, is the substantive question now before the courts.
This framing matters because it locates the dispute within the doctrine of legality rather than within any contest over the wisdom of the Council’s choice. The courts are not asked to decide whether the Council selected a suitable candidate or ran a fair process in the abstract; they are asked whether the Council had the power to embark on the process when it did. That is a question of legality, and it is for the courts, not the body itself, to determine the limits of the body’s authority.
Section 17(4): Discretionary Power or Mandatory Duty?
A separate but related question of statutory interpretation concerns section 17(4) of the 1992 Order, which addresses what happens to the office of Vice-Chancellor upon a vacancy.
The Court’s interim view was that, upon a vacancy arising, the Pro-Vice-Chancellor assumes the office of Acting Vice-Chancellor automatically and by operation of law. in the Court’s words, without the necessity for any further decision. The administrative law significance of this lies in the distinction between a power and a duty. A power leaves room for choice and is exercised at the discretion of the repository; a duty admits of no discretion and takes effect by force of the statute itself.
If section 17(4) imposes a mandatory consequence rather than conferring a discretionary appointment power, then no organ of the University, neither the Council nor any officer, has any decision to make when the office falls vacant. There is nothing to exercise, withhold or delay. The statute speaks for itself, and any purported “decision” to appoint someone else to act, or to keep the office open, would itself be an act without lawful authority.
This distinction also explains why the temporary succession mechanism and the appointment of a substantive Vice-Chancellor are conceptually separate. The former, on the Court’s interim reading, operates automatically to secure continuity; the latter is a discretionary appointment process whose legality remains under challenge. The Court’s order preserves the first while the validity of the second is tested.
The Interim Relief: An Interim Interdict Pending Review
The relief granted is, in form, an interim interdict preserving the position pending the final determination of the review. The common-law requirements for such relief, applied in Lesotho as in the wider Roman-Dutch tradition, are well settled: a prima facie right, even if open to some doubt; a reasonable apprehension of irreparable harm if relief is refused; a balance of convenience favouring the grant; and the absence of an adequate alternative remedy.
Read against those requirements, the Court’s intervention is coherent. A recruitment process carried to completion — culminating in an appointment — could create consequences difficult to undo if the underlying power were later found never to have existed. Preserving the status quo prevents the litigation from being overtaken by the very conduct under challenge, and protects the practical effectiveness of the eventual judgment. The Court expressly framed its purpose in these terms: to preserve institutional legality, continuity and the efficacy of the pending proceedings.
The Anti-Circumvention Order
Equally striking is the Court’s prohibition against any person, authority or organ of the University taking steps to circumvent, frustrate, defeat or undermine the statutory succession contemplated by section 17(4).
An order in such comprehensive terms is unusual in interlocutory proceedings, and it carries a clear administrative law message. The principle of legality forbids a public body from using administrative arrangements, parallel processes or institutional manoeuvres to achieve indirectly an outcome the law does not permit it to achieve directly. A statutory scheme cannot be defeated by stratagem. The order operationalises that principle by closing off the avenues through which the statutory mechanism might be hollowed out while its meaning is still being litigated.
Institutional Autonomy and the Principle of Legality
Universities ordinarily enjoy substantial autonomy in their academic and governance affairs. But where a university is established and governed by statute, that autonomy is conferred, defined and bounded by the empowering legislation. Autonomy is not immunity from the rule of law.
The Court did not purport to dictate who should ultimately be appointed Vice-Chancellor; that lies within the institution’s province once the lawful process is engaged. What the Court did was insist that the institution’s exercise of its powers conform to the statutory scheme Parliament enacted. The decision is, in this respect, a textbook illustration of the relationship between institutional independence and the principle of legality: the former operates within the space the latter allows.
Implications Beyond Higher Education
Although it arises in a university setting, the reasoning has resonance across Lesotho’s public sector. Many statutory bodies, regulators, public enterprises and parastatals operate under legislation that prescribes when and how their powers may be exercised, and that contains succession or continuity provisions for vacancies in key offices.
The ruling suggests that, where legislation makes the existence of a particular state of affairs a precondition to the exercise of a power, a public body acts unlawfully if it proceeds before that condition is met; and that where legislation prescribes a mandatory succession, the body may not displace it through discretionary action or parallel processes. The decision may therefore prove a useful reference point on:
- the review of decisions of statutory bodies for compliance with their empowering legislation;
- jurisdictional facts as preconditions to the exercise of public power;
- the distinction between discretionary powers and mandatory statutory duties;
- the requirements for, and proper office of, interim relief in public law disputes; and
- the constraining effect of the principle of legality on the autonomy of statutory institutions.
Conclusion
The Court of Appeal’s ruling does not finally determine the legality of the NUL’s Vice-Chancellor recruitment process. Those questions remain for the substantive proceedings.
What the ruling does affirm and what makes it of interest to administrative lawyers, is that the exercise of public power by a statutory body must remain within the bounds of its empowering legislation, and that the courts will act to preserve the legal position where the integrity of a statutory scheme, and the effectiveness of pending litigation, are at risk. The reasons, expected on 5 June 2026, will be closely read for the guidance they offer on the interpretation of statutory succession provisions and on the circumstances in which the courts will intervene to protect legality and institutional continuity pending review.