Volume: Volume 27 - 2023

Article type: Refereed article

Author/s: Mtendeweka Mhango and Kananelo Mosito

This article discusses the constitutional implications of pension deductions in the kingdoms of Eswatini and Lesotho. The article is based on a constitutional problem that arose in Government of Eswatini v Mhlanga, where the Supreme Court declared section 32(2) of the Retirement Funds Act 2005 unconstitutional on the grounds that it conflicted with the Constitution. Two decisions in the case – a majority and a minority decision – will be discussed for the purposes of applying them to Lesotho. The article considers comparative questions, including whether the newly enacted section 33(d) of Lesotho’s Pension Funds Act 5 of 2019 potentially offends the Constitution of Lesotho in the same way as the majority judgment found in Mhlanga. The article recommends that, when called upon, the judiciary in Lesotho should interpret section 33(d) of the Pension Funds Act in line with the minority judgment in Mhlanga.

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