Thato Lekatsa, a Lesotho-based creator, has taken her case to the Court of Appeal after a High Court ruling that her Lesotho-themed cloth design did not receive adequate protection under the country's Intellectual Property framework. Lekatsa's design, which features the image of King Letsie III, the iconic Basotho hat, and colors associated with Lesotho, was allegedly reproduced and commercialized without her permission. The case has highlighted gaps in Lesotho's IP framework, particularly with regards to expressions of folklore.
Lekatsa's business, which initially flourished with the sale of her Lesotho-themed cloth, suffered after she discovered similar products being sold in the streets of Maseru. Her investigation led her to several outlets, including Chishtia Enterprise, trading as New Wool Fabric Shop, and shops in Durban, South Africa, that were supplying the cloth into Lesotho. Lekatsa claims that nobody approached her to seek permission or negotiate a licensing arrangement, prompting her to seek M150,000 in damages for copyright infringement and M350,000 for unjust enrichment.
The High Court judgment, delivered on November 20, 2025, considered Section 19 of the Copyright Order of 1989, which deals with certain uses of expressions of folklore and requires authorization when the statutory conditions apply. The court found that Lekatsa had sought authorization from the office of the King for the use of his picture, but that this did not extend to the Basotho hat and colors. The court concluded that because the work had not met the authorization requirement, the respondent could not be held to have infringed copyright.
Lekatsa has expressed frustration with the judgment, citing what she sees as a contradiction between the court's consideration of her creation within the framework of copyright protection and expressions of folklore, and its finding that the respondent could not be held to have infringed copyright. She is also concerned that the judgment does not fully reflect all the evidence presented during the proceedings, including oral testimony. Lekatsa is now consulting with lawyers and preparing to take her fight to the Court of Appeal.
The case has highlighted the complexities of intellectual property protection in Lesotho, particularly with regards to cultural expressions and national symbols. The Basotho hat, or mokorotlo, is a national symbol deeply embedded in Lesotho's cultural identity, and the colors associated with the country carry meaning that transcends mere aesthetics. Lekatsa's case illustrates why intellectual property literacy matters, as different intellectual property rights can protect different aspects of a creative or commercial product.
Under Lesotho's Copyright Order, 1989, original literary, artistic, and scientific works receive copyright protection by the sole fact of creation. The law also sets out economic and moral rights and provides specific rules concerning expressions of folklore. Expressions of folklore are elements of a community's cultural heritage that have been passed down through generations, such as traditional designs, symbols, stories, music, crafts, and other forms of cultural expression.
Lekatsa's case has significant implications for creators in Lesotho, who must navigate a complex IP framework to protect their work. The Court of Appeal's decision will be closely watched, as it will provide clarity on the legal questions raised by the case and what the decision means for the manuscripts, designs, and other creative works that Lekatsa and other creators have produced but are yet to be published.
Key points
- The case highlights gaps in Lesotho's Intellectual Property framework, particularly with regards to expressions of folklore.
- The court's treatment of authorization for cultural symbols and expressions has raised concerns among creators in Lesotho.
- The case has significant implications for intellectual property protection in Lesotho, particularly for creators who incorporate elements of Basotho culture into their work.
