The decision sparked a concern amongst legal practitioners and raised two

The decision sparked a concern amongst legal

This preview shows page 3 - 5 out of 7 pages.

and substituted in their place, an order dismissing the claims with costs. The decision sparked a concern amongst legal practitioners and raised two issues of paramount importance to dealings in rights to land in Lesotho namely: (a)Whether in terms of section 35 (1) (b) (i) read with section 36 (5) of the Land Act, 1979 ministerial consent has to be obtained prior to concluding a contract on rights to land; (b)and, whether a buyer can litigate to compel a seller to apply for ministerial consent. This Honourable Court answered the first question in the affirmative and the second in the negative. Whilst, on the specific facts of the case under review, the decision cannot be faulted, it is the blanket scope of the agreements caught out by the court’s interpretation of the relevant provisions of the Land Act, 1979 that is a glaring cause of concern. The learned Advocate K.K. Mohau K.C. then concludes in his detailed and comprehensive exegesis by remarking as thus: …the Court, in my respectful submission, clearly erred in interpreting section 35(1) read with section 36 (5) so as to indiscriminately invalidate every agreement for the sublease, mortgage or transfer of rights in immovable property made without prior ministerial consent. It is otherwise significant to indicate that academics clearly provoke comments and criticism on judgments delivered by the Judiciary. The critical academia clearly secures the notion of judicial accountability. They act as watchdogs, anxious to ensure that the judicial process moves in the right direction and serves the needs of the Basotho society. Thus, wherever a judgement is delivered which is contrary to constitutional values and adverse to the interest of society, law academics must as a matter of necessity criticize it strongly and point out how the judiciary failed to discharge its accountability to the people. Of course, the criticism should be in temperate language and directed at the judgement and not against the judge, for the credibility of the judge must not be affected. The view of the Law Society at present is that it is by all means important that we explore the aspect of judicial accountability which is the reverse side of the coin of judicial independence. The notion of accountability permeates public life. Judicial officers are servants of the public. It follows that they should be accountable for the manner in which they perform their duties. We clearly live in an era of greater public demand for accountability of the judiciary. It is clearly no longer considered a sacrosanct and inviolable haven of its occupants.
Image of page 3

Subscribe to view the full document.

The recent challenges that this country has endured in the judiciary leave quiet a lot to be desired and they are all common cause. So, the question now is not whether there should be judicial accountability but how judicial accountability can be balanced with judicial independence. The two should be perceived as complimentary. The learned senior Advocate K.A.
Image of page 4
Image of page 5
  • Spring '13
  • Mr.Minken

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern

Ask Expert Tutors You can ask You can ask ( soon) You can ask (will expire )
Answers in as fast as 15 minutes