Summary

THE KINGDOM OF LESOTHO
v
FRAZER SOLAR GMBH
TRANS-CALEDON TUNNEL AUTHORITY
LESOTHO HIGHLANDS DEVELOPMENT AUTHORITY
STANDARD BANK OF SOUTH AFRICA
THE SHERIFF OF THE COURT: JOHANNESBURG
THE SHERIFF OF THE COURT: CENTURION EAST
THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
NATIONAL GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA

JUDGMENT

Introduction

1. This matter arises from a contract purportedly, concluded between the Kingdom of Lesotho "KOL" and a Germany company Frazer Solar GMBH ("FSG"). I refer to the contract as the "supply agreement".

2. The supply agreement purported to oblige KOL to borrow money from German financial institutions and use that money to buy energy-efficient light bulbs and solar geysers from FSG.

3. The supply agreement ultimately led to an arbitration award and an order of this court in favour of FSG. I refer to this order as the "enforcement order".

4. The minister who purportedly signed the supply agreement on behalf of the KOL was Minister Tsolo.

5. Having considered submissions from only FSG, the arbitrator held that:

a. He had jurisdiction over KOL; and
b. he awarded a sum of liquidated damages against KOL.

6. FSG then sought an order making the arbitration award an order of this court. This order was granted on an unopposed basis.

7. Kol brought an application in the Lesotho High Court to review and set aside the decision to enter into the supply agreement and the arbitration agreement it contained. The Lesotho High Court declared the decision to enter into the supply agreement, the supply agreement and the arbitration agreement void and invalid ab initio.

8. In the current application KOL seeks two primary forms of relief:

8.1 Firstly, it seeks to set aside the arbitration award in terms of Article 34 of the Model Law under the International Arbitration Act 15 of 2017.

8.2 Secondly, it seeks to rescind the order of this court, making the Arbitration award an order of court.

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