An article for attorneys instructing on Lesotho matters from South Africa and other jurisdictions.
There is a habit of thought, deeply embedded in South African practice, that quietly travels across the Caledon River and causes more difficulty than it should. It is the assumption that an attorney engaged in another centre to attend to a matter is a “correspondent” and that the Lesotho firm you brief occupies the same role as the Bloemfontein or Durban firm you might instruct to issue process or appear on an unopposed motion. That assumption is wrong, and the distinction is not pedantic. It goes to scope of work, professional responsibility, fee expectations, and, most importantly, the protection of your client.
When you brief us on a Lesotho matter, we are not your correspondents. We are your local counsel.
Where the “correspondent” idea comes from
The correspondent tradition is a creature of a single legal system. Within South Africa, an attorney in Johannesburg who needs something done in another town instructs a correspondent there to file at a particular registry, effect service, attend a set-down, or appear on a procedural step. The arrangement works precisely because both attorneys operate inside the same body of law. The instructing attorney already knows the applicable statutes and rules; the correspondent supplies local reach and presence, largely on the instructing attorney’s mandate, and is remunerated on a long-settled agency basis.
The defining feature of that relationship is shared substantive ground. The correspondent is not being asked to tell the instructing attorney what the law is. They are being asked to execute, locally, a strategy that has already been formed under a law both attorneys command.
Why the framing breaks at the border
Lesotho is a sovereign state. It is not a province of South Africa, and it is not an extension of any other jurisdiction. It has its own Constitution, its own Parliament, its own judiciary, and its own legal profession regulated under the Legal Practitioners Act and the Law Society of Lesotho. An attorney admitted in South Africa or in England, or anywhere else, has no right of appearance and no right to practise in Lesotho. Equally, the law that governs your matter is Lesotho law, which the foreign attorney is neither admitted, qualified, nor professionally insured to advise upon.
What makes this trap so easy to fall into is the deceptive familiarity between the two systems. Lesotho and South Africa share a Roman-Dutch common-law foundation. The loti trades at parity with the rand within the Common Monetary Area. The courts speak a recognisable procedural language. To an instructing attorney across the border, it can all feel like home with a different letterhead. It is not.
The law actually differs … substantially
The common-law inheritance is shared; almost everything built on top of it has diverged. A few illustrations make the point:
The statutory overlay is distinct. Lesotho’s company law, insolvency regime, and labour framework are governed by their own legislation, the Companies Act and its amendments, the Insolvency Act No. 9 of 2022, and the Labour Act 2024, each with grounds, thresholds, and procedures that do not map onto their South African equivalents. A winding-up application, for example, proceeds on Lesotho insolvency grounds and Lesotho procedure, not on the South African Companies Act 2008 or the Insolvency Act 1936.
The dispute architecture is different. Labour disputes run through the Directorate of Dispute Prevention and Resolution (DDPR) and the Labour Court, not the CCMA and the structures of the Labour Relations Act. The court hierarchy comprises the Subordinate Courts, the Commercial Court, the High Court, and the Court of Appeal as the apex court, each with its own jurisdiction, thresholds, and practice directions.
The rules of court are not the Uniform Rules. The High Court Rules and Subordinate Court Rules of Lesotho set their own forms, time periods, service requirements, and motion practice. Older instruments still in force, the Partnerships Proclamation of 1957 is one example, have no South African counterpart at all.
None of this is the kind of work a correspondent does. It is substantive legal analysis, performed under a law you are not admitted to apply.
Who carries the responsibility
This is where the distinction becomes more than a matter of nomenclature. When a matter turns on Lesotho law, it is the Lesotho attorney who exercises independent professional judgment, signs and issues court process, appears before the court, and carries the regulatory and professional-indemnity responsibility for that work before the Lesotho profession. That is not a correspondent’s function. It is the function of local counsel, and it cannot be delegated upward to an instructing attorney who is not on the roll.
Mischaracterising the role as a correspondent’s understates two things at once: the nature of the work, and the locus of responsibility for it. Both have consequences. Fee expectations calibrated to a correspondent agency tariff do not reflect substantive advisory and litigation work. Engagement timed for filing rather than strategy means local-law issues that should have shaped the case surface too late to do so. And procedural missteps, wrong forms, missed time bars, jurisdictional errors, tend to be discovered at exactly the moment they are most expensive to cure.
What the relationship should look like
The better model is the one the work actually requires: engage local counsel early, at the point where strategy is formed rather than after it has been fixed. Treat the Lesotho firm as substantive co-counsel on every aspect governed by Lesotho law, with a clear delineation of who advises on what. This protects your client, and it protects you. The instructing attorney retains the client relationship and conducts the matter within their own jurisdiction; local counsel carries the Lesotho-law work and the responsibility that attaches to it. Each does what they are admitted and insured to do.
A question worth asking
Before your next cross-border instruction is sent off as correspondent work, it is worth pausing on one question: is the law that governs this matter law that you are admitted, qualified, and insured to advise on? If the answer is no, and across the Lesotho border it usually is, then what you need is not a correspondent. It is local counsel.
We practise in both Lesotho and South Africa precisely because that border matters, and we are well placed to discuss how best to structure an instruction so that your client is properly served on both sides of it.
This article is general commentary and does not constitute legal advice. Statutory references should be confirmed against the current text of the relevant legislation.