M & C Construction International v Lesotho Housing and Land Corporation (C of A (Civ) 9 of 2015)

• Published date: 01 September 2018
• Pages: 231-243
• Author: L. Kometsi
• DOI: 10.10520/EJC-110b4019c6
• Date: 01 September 2018
• Record Number: lesotho_v26_n1_a8

M & C CONSTRUC TIO N IN TERNATI ONA L V LESOTHO

HOUSING AND LAND CORPORATION (C OF A (CIV) 9 OF 2015)

Komet si, L



INTRODUCTION

This paper is an analysis of the decision of the court of appeal in the

above mentioned case. The decisi on is important not only as

precedent but also for the value that it adds to the jurisprudence of

the Ki ngdom. Not to mention that in most cases, in developing

these precedents, court rely heavily on South Africa authorities. The

extent to which the South African authorities influence the

development of law in Lesotho is however, disproportionate. For

the most part, courts in Lesotho appear to be too ready to accept as

precedent all South African authorities in some cases even without

thorough analysis or indeed check as to the availability of precedent

in each given aspect. In the present case court was quick to identify

and correct that anomaly. The principle in issue is that of loss of

opportunity as arises from a contract. In addressing this issue the

court defined its point of departure as the distinction between

statutory arbitrations and private arbitrations. In the final analysis

the court held that courts are slow to set aside awards in private

arbitrations.

FACTUAL BACKGROUND

This was an appeal from a judgment delivered by Molete J, sitting

in the Commercial Division of the High Court, in which he made

the following order. Firstly, that the arbitration award made in

favour of the appellant, M & C Construction International (Pty) Ltd,

was set aside and the dispute was referred back to another

arbitrator to be appointed by agreement between the parties or, if

 PA/PS (N UL), LL.B (NUL ), LLM (Univ. of Manchester, U K), PhD (Univ. o f North

West), Lecturer, Faculty of law, NUL.