1. Introduction
In a jurisprudential landscape increasingly informed by gender equality and human rights standards, the decision of the High Court of Lesotho in Private Mokhele & Others v The Commander of the Lesotho Defence Force represents a pivotal moment. This case addressed the legality of the discharge of three female soldiers on the basis of pregnancy, following a Standing Order issued by the Commander of the Lesotho Defence Force (LDF) which prohibited pregnancy within the first five years of military service. The applicants challenged the decision on grounds of legality, reasonableness, and constitutional and international human rights compliance.
2. Background and Legal Framework
The applicants, Privates Mokhele, Letima, and Ntsoha, were enlisted in the LDF in 2013. Subsequent to their enlistment, Standing Order No. 2 of 2014 was introduced, which effectively prohibited female soldiers from becoming pregnant within five years of their enlistment. Upon falling pregnant, each applicant was issued a show cause notice, after which they were administratively discharged pursuant to section 31(b) of the Lesotho Defence Force Act 4 of 1996, which allows discharge “if it is not in the best interests of the Defence Force”.
The applicants responded by affirming their use of contraceptives and lack of intention to contravene the Order. They further cited socio-economic circumstances and argued that their pregnancies did not render them unfit for service. The discharge letters emphasized the risk to military discipline and the importance of maintaining obedience to orders.
3. The Court’s Approach and Reasoning
Delivering the unanimous judgment of the court, Sakoane J undertook a doctrinal and comparative analysis, guided by both domestic statutory interpretation and international human rights instruments.
First, the court noted that pregnancy was not listed among the prescribed grounds for discharge under the Defence Force (Regular Force) (Discharge) Regulations, 1998, nor did the Defence Force (Regular Force) (Other Ranks) Regulations, 1998 permit dismissal on account of pregnancy. On the contrary, the Regulations expressly entitled pregnant soldiers to paid maternity leave.
Second, the court found that Standing Order No. 2 lacked statutory authority and operated ultra vires the empowering legislation. The Commander had no power to unilaterally impose such a restriction without express legislative sanction.
Third, the court rejected the view that pregnancy per se was incompatible with military service, citing Crawford v Cushman (US), Brooks v Canada Safeway Ltd (Canada), and Brown v Rentokil (ECJ), affirming that dismissal on the basis of pregnancy constituted direct sex discrimination.
4. Reproductive Rights, Equality and Administrative Justice
Drawing on section 30(b) of the Constitution of Lesotho and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the court affirmed that reproductive autonomy, including the right to choose to bear children, was integral to women’s dignity and equality.
The court was scathing in its critique of the Order’s impact on female soldiers, noting that it enforced involuntary abstinence, penalised contraceptive failure, and imposed a presumptive incapacity for duty without an individualized medical or operational assessment. Such measures, it found, undermined both military professionalism and constitutional values.
5. Implications for South African Law
While this decision arose under Lesotho law, its implications resonate within South African jurisprudence. Section 9 of the South African Constitution guarantees substantive equality, while the Employment Equity Act 55 of 1998 prohibits unfair discrimination on grounds of pregnancy. South African courts have similarly rejected employer policies that penalise pregnancy (see Woolworths v Whitehead 2000 (3) SA 529 (LAC)).
Furthermore, South Africa’s Defence Act 42 of 2002 and accompanying Military Discipline Code provide no basis for dismissing soldiers solely on account of pregnancy. Policies or practices that indirectly discriminate against women in uniform would likely fall foul of constitutional and statutory protections.
6. Conclusion
The High Court’s decision in Private Mokhele reaffirms the principles of legality, gender equality, and rational administrative action in the military context. It sends a clear signal that institutional discipline must be harmonised with constitutional and international commitments to equality and reproductive rights. For South Africa, the case underscores the need for continued vigilance to ensure that military policies and employment conditions align with human rights standards.