In a landmark ruling delivered on 10 February 2025, the High Court of Lesotho dismissed a constitutional challenge brought by three women from Mokhotlong against the Lesotho Highlands Water Commission (LHWC), the Lesotho Highlands Development Authority (LHDA), and related public authorities. The applicants alleged that the compensation processes under the Lesotho Highlands Water Project Phase II (LHWP) were discriminatory, unconstitutional, and inconsistent with statutory protections of property and marital equality.
At the heart of the dispute was the manner in which compensation for expropriated land, jointly owned by the applicants and their spouses, was disbursed. In each case, the compensation was paid into bank accounts held solely by their husbands, effectively excluding the applicants from access to the funds, despite their role as co-signatories to the compensation forms and their joint ownership of the land.
The applicants argued that this practice violated several constitutional provisions, including the right to equality (Section 19), protection from discrimination (Section 18), and the right to freedom from arbitrary seizure of property (Section 17). They contended that the LHWP Compensation Policy 2016 was implemented in a way that reinforced patriarchal assumptions about household leadership, ultimately disadvantaging women and violating statutory provisions such as Section 10 of the Land Act 2010 and the Legal Capacity of Married Persons Act 2006.
In its majority decision authored by Hlaele J (with Sakoane CJ concurring), the Court found that the compensation policy itself was gender-neutral and did not violate constitutional or statutory rights. The policy, the Court held, explicitly recognised co-ownership of property in marriage and mandated joint signing of compensation documents by spouses. The term “head of household,” as used in the policy, was interpreted as flexible and non-gendered, allowing families to designate that role according to their internal dynamics.
Crucially, the Court drew a distinction between the policy’s intent and the interpersonal outcomes that followed its implementation. The applicants’ grievances stemmed not from the policy’s wording or design, but from how their respective husbands chose to manage the compensation once it was deposited, often unilaterally and to the detriment of the applicants. The Court found that while these circumstances may be socially unjust, they did not amount to constitutional or administrative violations attributable to the respondents.
The Court further emphasised the doctrine of constitutional avoidance. It reasoned that the applicants had alternative remedies available under common law, contract law, and family law, especially through the ordinary civil jurisdiction of the High Court. For example, they could have brought proceedings against their husbands for financial redress or sought declaratory relief concerning the administration of the joint estate. The respondents, in the Court’s view, could not be held liable for the domestic misuse of funds that had been properly disbursed in accordance with co-signed agreements.
In a notable dissent, Ralebese J took a different approach. While accepting that the Compensation Policy’s language was formally gender-neutral, he was more sympathetic to the practical consequences of its implementation. He highlighted the socio-economic vulnerability of women in marital relationships and expressed concern about the lack of protective mechanisms within the LHDA’s compensation process to ensure that both spouses, especially women, actually benefit from payments. Nonetheless, he concurred in the result, finding that alternative remedies outside constitutional litigation remained available.
The case reflects a broader tension between formal equality and substantive justice in Lesotho’s evolving legal landscape. While the Court reaffirmed the supremacy of statutory and constitutional protections for women in marriage, it cautioned against conflating personal grievances with state action absent clear evidence of discrimination or illegality.
Ultimately, the High Court declined to grant the wide ranging declaratory and compensatory relief sought by the applicants and made no order as to costs. The decision leaves open the path for future applicants to pursue family law and delictual remedies in appropriate forums but underscores the judiciary’s cautious approach to constitutional intervention where adequate alternatives exist.