In many jurisdictions, arbitration has become the default mechanism for resolving commercial disputes. In Lesotho, however, the reality is markedly different. Court-based litigation continues to dominate the commercial dispute resolution landscape, with arbitration and mediation playing a far more limited and often uncertain role.
For businesses contracting in Lesotho, understanding this practical and legal reality is critical when drafting dispute resolution clauses and managing litigation risk.
This article sets out the current position under Lesotho law and explains why litigation remains the preferred forum for resolving commercial disputes.
Litigation remains the preferred dispute resolution forum
In Lesotho, commercial disputes are overwhelmingly resolved through the courts rather than through arbitration. While arbitration is recognised in law, it is frequently sidelined in practice, either through court intervention or by agreement between the parties once disputes arise.
This preference for litigation is driven by a combination of factors, including judicial oversight, procedural certainty, enforceability of judgments and a lack of confidence in arbitration as a final and insulated process. As a result, parties often find themselves before the High Court even where an arbitration clause exists.
Judicial intervention under the Arbitration Act
One of the defining features of arbitration in Lesotho is the breadth of the court’s powers under the Arbitration Act. Unlike jurisdictions that strongly protect party autonomy in arbitration, Lesotho law permits extensive court involvement at virtually any stage of the process.
On the application of any party to an arbitration agreement, and on good cause shown, the court may intervene and exercise wide discretionary powers. These include the authority to set aside an arbitration agreement entirely, to direct that a specific dispute covered by the agreement should not be referred to arbitration, or to declare that the arbitration agreement no longer applies to a particular dispute.
In practical terms, this means that arbitration clauses in Lesotho do not offer the same level of insulation from court proceedings as they might elsewhere. Parties cannot assume that an arbitration agreement will necessarily be enforced as written, particularly where one party persuades the court that litigation is more appropriate in the circumstances.
Arbitration in practice: limited predictability
The ability of the courts to intervene so broadly has contributed to a perception that arbitration in Lesotho lacks predictability. Parties may incur costs initiating arbitration proceedings, only to face parallel or subsequent court applications that derail the process.
For commercial actors seeking finality, confidentiality and speed, this uncertainty often undermines the perceived advantages of arbitration. As a result, many disputes default to litigation from the outset, even where arbitration clauses exist.
Mediation: compulsory but ineffective
Mediation occupies an unusual position in Lesotho’s dispute resolution framework. Although mediation is compulsory under the court rules, it is not widely embraced by litigants and has proven largely ineffective in resolving commercial disputes.
In practice, mediation is often treated as a procedural hurdle rather than a genuine opportunity for settlement. Parties frequently approach mediation defensively, with little expectation of resolution, particularly in high-value or technically complex commercial matters. As a result, mediation rarely brings disputes to an early conclusion and litigation proceeds regardless.
Procedural advantages of court litigation
One of the key reasons litigation remains dominant is the structured procedural framework offered by the courts. In commercial matters, parties are required to exchange detailed pleadings, factual witness statements and expert reports. This early disclosure assists in narrowing the issues in dispute, clarifying technical points and reducing the length of hearings.
The exchange of written witness statements and expert evidence also promotes procedural efficiency and allows matters to be properly prepared before trial. For many litigants, this transparency and predictability outweigh the perceived benefits of arbitration or mediation.
Strategic implications for businesses
For businesses operating in or contracting with counterparties in Lesotho, dispute resolution clauses should be drafted with local realities firmly in mind. Arbitration clauses may not deliver the certainty or exclusivity that parties expect, while mediation should not be relied upon as an effective standalone solution.
Court litigation remains the most reliable mechanism for resolving commercial disputes, both in law and in practice. Parties should therefore prepare for the likelihood of court proceedings when assessing risk, costs and timelines.
How Mayet & Associates Attorneys can assist
Mayet & Associates Attorneys is a leading commercial litigation and dispute resolution firm in Lesotho. We advise local and international clients on litigation strategy, arbitration risk, contract drafting and dispute management across a wide range of commercial sectors.
Our team regularly appears in the High Court of Lesotho and provides practical, commercially focused advice on navigating disputes in a jurisdiction where litigation remains the primary forum for enforcement and resolution.
For guidance on dispute resolution clauses, litigation strategy or ongoing commercial disputes in Lesotho, our offices are ready to assist.