The enforcement adjudication and monitoring of social security rights in Lesotho

• Date: 01 January 2013
• DOI: 10.10520/EJC177234
• Published date: 01 January 2013
• Pages: 65-89
• Author: Kananelo E. Mosito

THE ENFORCEMENT ADJUDICATION AND

MONITORING OF SOCIAL SECURITY

RIGHTS IN LESOTHO

Kananelo E. Mosito*

ABSTRACT

Contemporary discourse on social security rights and their

enforcement, adjudication and monitoring occupies a centre

stage in the sustainability of any social security system of a

country. This discourse has acquired an interesting but

rather controversial appellation as to what an efficient social

security system should look like. This paper explores the

nature of the enforcement, adjudication and monitoring

system of social security rights in place in Lesotho. It

discusses the various mechanisms used and provided for by

the law of Lesotho in this area and, evaluates their

effectiveness or otherwise, in the process. It concludes by

highlighting the weaknesses and strengths.

1. Introduction

Lesotho has a variety of social security measures in place. Those

measures would be meaningless if they could not be monitored,

protected and enforced. Thus, the indispensability of enforcement

and protection mechanisms for social security rights

overemphasised. The aim of this article is to discuss the nature of

the adjudicative, enforcement and monitoring of social security

rights in Lesotho. It also examines the possible development of new

enforcement and protection mechanisms. The aforesaid purpose is

achieved in several ways. First, the existing adjudication machinery

of social security measures is examined. Second, the role played by

various tribunals in the enforcement of social security measures is

discussed. Third, the possible role of the ombudsman in the

enforcement of social security entitlement is considered. Fourthly,

the enforcement of public assistance grants by administrative ad hoc

66 The Enforcement Adjudication and Monitoring of Social Security

bodies and other institutions is also examined. Fifthly, the

availability of enforcement mechanisms for informal social security

schemes will be addressed. Lastly, the article endeavours to

determine which other forms of enforcement and monitoring

mechanisms may be invented.

2. Adjudication of Social Security Matters

2.1 The right of access

The basic function of the judiciary is to adjudicate over disputes

arising between parties in accordance with the Constitution and

other laws of the country. The right of access to the Courts is

generally guaranteed through a right safeguarding equal protection

of the law.

1

The judicial power and authority in Lesotho is vested in

the Court of Appeal, the High Court, the subordinate courts and

courts-martial, and such tribunals exercising a judicial function as

may be established by Parliament.

2

As is the case with other

matters, the courts can exercise their powers of adjudication over

social security matters. These powers may be either original,

appellate or review.

2.2 The distinction between appeal and review

The distinction between appeal and review lies in the fact that:

Where the reason for wanting to have the judgment

set aside is that the Court came to the wrong

conclusion on the facts or the law, the appropriate

remedy is by way of appeal. Where, on the other

hand, the real grievance is against the method of the

trial it is proper to bring the case on review. An

* LL.B.(NUL), LL.M.(Edin). PhD (UCT) Senior Lecturer, Dean, Faculty of Law,

National University of Lesotho, King’s Counsel Email:

kananeloemosito@gmail.com

1

See s 19 of the Constitution of Lesotho 1993.

2

See s 118(1) of the Constitution of Lesotho 1993.