2.2 LESOTHO COMMON LAW CONTRACT PRINCIPLES
The comparative study of the Lesotho Electronic Commerce and Electronic
Transactions Bill 2003 with South Africa’s
Electronic Communications
and
Transactions Act 2002 emanates from a settled legal position that the common law of
South Africa is based on Roman-Dutch Law,77 and the same common law applies in
Botswana, Lesotho, Namibia, Swaziland and Zimbabwe.78 The principle also enjoys
the support of other writers such as Van Niekerk,79 Pain,80 and Mahomed.81
South African common law was introduced into the Lesotho legal system by a General
Law Proclamation of 29th May 1884 following the dis-annexation of the Basutoland
from Cape Colony with the terms that the latter would administer Cape Roman-Dutch
Law, as converted by South African courts into South African common law, in all
Basutoland proceedings, as it was then called.82 This position has since been upheld
by Lesotho Courts.83
The operation of the doctrine of stare decisis, that is, stand by previous decisions,
fortifies the position.84 The judicial precedent is an important source of law, and binds
on account of the doctrine of stare decisis.85 Lesotho looks up to South Africa’s
decided cases for judicial precedence, as confirmed in the case of Non-academic
Workers Union v National University of Lesotho,86 whereat the contractual principles
of offer and acceptance were dealt with.
77
Pearl Assurance Co v Union Government 1934 AD 560; Rood v Wallach 1904 TS 187 at 195; Mtembu v
Webster 1904 21 SC 323; Conradie v Rossouw 1919 AD 279.
78 Campell (2009: 1).
79 Van Niekerk, GT. (1998) “A common law for Southern Africa: Roman Law or Indigenous Law?” 31 CILSA 158
at 159-160.
80 Pain, JH. (1978) “The Reception of English Law and Roman-Dutch Law in Africa with reference to Botswana,
Lesotho and Swaziland” 11 CILSA 137 at 165.
81 Mahomed, I. (1985) “The future of Roman-Dutch Law in Southern Africa particularly in Lesotho” 2 LLJ 357 at
361.
82 Poulter, S. (1969) “The common law in Lesotho” 3 J. Afr. L. 127 at 128-129.
83 S2 General Law Proclamation of 29 th May 1884; Khatala v Khatala 1963-1966 HCTLR 97 at 99-100.
84 Poulter (1969: 127 at 141).
85 Sharrock, R. (2001) “Business Transactions Law” 28.
86 Non-academic Workers Union v National University of Lesotho available at
www.lesotholii.org (accessed 18 April 2014).
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