With the steady rise in commercial litigation, particularly involving cross-border transactions and foreign investment, the Lesotho judiciary has experienced increasing pressure to resolve disputes efficiently. The establishment of the Commercial Court in 2010, now comprising three judges, was a response to this growing caseload. However, the continued increase in both domestic and international commercial disputes has led to notable backlogs, making it difficult for litigants to secure timely hearing dates and judgments. In this context, arbitration emerges as a viable and necessary alternative, offering speed, procedural flexibility, and enforceability of awards.
Arbitration in Lesotho is governed by the Arbitration Act 1980 (hereinafter Arbitration Act). Lesotho is also a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (hereinafter New York Convention), having acceded without reservation under Article I(3). This dual framework enables both domestic and international parties to pursue binding, enforceable awards within Lesotho’s legal system.
Calls for reform have recently emerged from members of the Lesotho Law Society, who advocate for the modernisation of the Arbitration Act to align with international best practices. An amended statute could catalyse greater reliance on arbitration by foreign investors and local businesses alike, particularly in light of existing judicial inefficiencies.
Section 28 of the Arbitration Act stipulates that arbitral awards are final and binding, not subject to appeal, and must be complied with by both parties. For enforcement purposes, Section 32 permits a party to apply to the High Court of Lesotho to have an award made an order of court, thereby enabling it to be executed in the same manner as any court judgment.
Procedurally, Rule 8 of the High Court Rules 1980 governs applications for recognition. The award creditor must file a Notice of Motion and Founding Affidavit, attaching the arbitration agreement and the original award. Upon service on the award debtor, the matter proceeds through standard motion procedure, culminating in a court order which may be executed under Rules 46 and 47 of the High Court Rules.
While the Arbitration Act does not address foreign arbitral awards explicitly, Lesotho’s accession to the New York Convention governs such matters. Under Article III of the Convention, foreign awards must be recognised and enforced in accordance with procedural rules of the state, which, in Lesotho, are also found in Rule 8 of the High Court Rules.
To enforce a foreign award, the applicant must submit:
• A duly authenticated original award or certified copy;
• The original arbitration agreement; and
• A certified English translation, where applicable.
The High Court holds exclusive jurisdiction to grant declaratory relief for enforcement. However, under Section 3 of the Arbitration Act, courts may decline to enforce awards related to matrimonial matters, status, or those contrary to public policy.
For domestic awards, Section 3 of the Arbitration Act outlines non-arbitrable matters. Courts may also refuse enforcement if the award violates public policy. In The Ministry of Public Works and Others v Lesotho Consolidated Civil Contractors (Pty) Ltd, the Court of Appeal endorsed the interpretation of public policy from Barkhuizen v Napier,holding that public policy must reflect constitutional values, including human dignity and the rule of law.
Foreign awards may be refused recognition on the grounds listed in Article V of the New York Convention. These include invalid arbitration agreements, improper notice, non-arbitrable subject matter, or awards contrary to public policy.
Section 2 of the Arbitration Act defines an “award” to include interim awards, allowing them to be enforced similarly to final awards under Section 32(1).^10 However, partial awards are not specifically addressed. Under the New York Convention, foreign interim awards may only be enforced if they are final and dispositive of the issues in dispute.
All applications for enforcement must be filed in English. Where domestic awards are written in Sesotho, a basic translation by counsel suffices. Foreign awards must be translated by a sworn translator if not in English.
Service of documents in Lesotho is conducted by the Court Sheriff. For service abroad, Rule 5 of the High Court Rules allows for edictal citation, subject to leave of court. This may involve service through an attorney or diplomatic channel abroad.
Once an arbitral award is made an order of court, it has the force and effect of a judicial decree. A dissatisfied party may appeal to the Court of Appeal, apply for rescission, or seek variation of the court order in cases of procedural irregularity or newly discovered facts. However, the Arbitration Act provides no specific provision for appeals or set-off defences. An award that has been set aside at the seat of arbitration cannot be enforced, and partial awards may only be enforced if severable and operative.
Applicants may request interim relief, including:
• Attachment of property;
• Interdicts against dissipation;
• Security for costs.
The court retains discretion to award costs of enforcement proceedings, either in favour of one party or for each party to bear its own costs, depending on conduct and case complexity.
Arbitration presents a critical alternative to litigation in Lesotho, particularly in light of the overloaded Commercial Court. Lesotho’s dual legal framework through the Arbitration Act and the New York Convention provides a solid basis for enforcing both domestic and foreign arbitral awards. However, legislative reform remains necessary to bring the Arbitration Act into alignment with modern international standards. With proper reform and increased judicial capacity, arbitration can become an even more attractive mechanism for resolving commercial disputes in Lesotho.