HIGH COURT OF LESOTHO
NATIONAL GENERAL INSURANCE
by the Honourable Mr. Justice M.M. Ramodibedi on the 6th day of March
of dispute in this case is a short one revolving around the principle
of joinder of parties and the duty of the High Court as upper
guardian of the minor children within its jurisdiction. But first the
salient facts of the case.
1st June 1994 a certain Liteboho Tsiu (hereinafter referred to as the
deceased) was allegedly killed in a motor vehicle accident leaving
behind his wife 'Mapelaelo and his minor child Pelaelo, a girl born
in 1992. Pursuant thereto the Applicant/Plaintiff who is the
deceased's father issued summons in the instant matter in his
representative capacity "as the father-in-law and guardian of
'Mapelaelo Tsiu and Pelaelo Tsiu" claiming the sum of M73,000.00
damages for the deceased's death. The summons was issued on the 12th
March 1997 and apparently served on the Defendant on the 15th April
Defendant filed two special pleas as well as a plea on the merits.
The first special plea raised prescription it being alleged that as
the summons was not served upon the Defendant within the period of
two years from the date upon which the claim arose and as required by
Section 12 read with Section 10 of the Motor Vehicle Insurance Order,
26 of 1989 as amended the Plaintiffs claim had become prescribed.
second special plea attacked the locus standi of the Plaintiff to act
on behalf of either 'Mapelaelo or Pelaelo. Indeed it was further
averred in the special plea that the Plaintiff has not been appointed
by a competent court of law as the legal guardian of the minor child
interpose at this stage to mention that although the special pleas in
question were apparently served and filed in July 1997 the Plaintiff
only filed the present application for joinder of 'Mapelaelo two full
years later namely on the 16th September 1999. I shall revert to this
aspect in due course.
Notice of Motion for joinder the Applicant/Plaintiff seeks an order
in the following terms:-
TSIU be joined in these proceedings as a co-plaintiff;
TSIU be appointed co-guardian putatively of the minor child PELAELO
TSIU for purposes of the proceedings in the main action herein;
acts and procedural steps taken by LERATA TSIU on behalf of
'MAPELAELO TSIU and PELAELO TSIU in the main action
ratified and confirmed retroactively and be deemed to have been duly
taken by him in his representative capacity as a co-guardian.
be ordered to pay the costs hereof in the event of opposing this
application, otherwise the costs hereof be costs in the
Plaintiff (Applicant) herein further and/or alternative relief."
convenient, I think to start with prayer 2 for essentially the
Applicant must in the particular circumstances of this case, face the
firing line first as the Plaintiff in the matter. The real question
for determination is whether he has locus standi in the matter;
conversely whether he has a direct and substantial or legally
enforceable interest in the matter. I should add that if a litigant
satisfies this requirement the court has inherent or common law
jurisdiction in respect of joinder of parties even mero motu.
Authorities in this respect are legion.
example Amalgamated Engineering Union v Minister of Labour 1949 (3)
SA 637 AD.
Steel Equipment Co. (Pry) Ltd. and Others v Lurelk (Pty) Ltd. 1951
(4) SA 167(TPD)at 172.
Nor do I
think that Rule 10(1) of the High Court Rules 1980 on joinder of
parties introduces any departure from the common law principle set
out above. That Rule reads as follows:-
(1) Any number of persons, each of whom has a claim whether jointly,
and severally, separately or in the alternative, may join as
plaintiffs in one action against the same defendant or defendants
against whom any one or more of such persons proposing to join as
plaintiffs would, if he brought a separate action, be entitled to
bring such action, provided that the right to relief of the persons
proposing to join as plaintiff, depends upon the determination of
substantially the same question of law or fact which, if separate
actions were instituted, would arise in each action, provided
further that there may be a joinder conditionally upon the claim of
any other plaintiff failing " (emphasis added).
view the word "claim" used in the Rule must obviously mean
"legally enforceable claim." I am reinforced in this view
by the subsequent words used in the Rule namely .... "be
entitled to bring such action." The purpose of the Rule is no
doubt to obviate a multiplicity of actions and to avoid unnecessary
costs as a result of abortive actions brought by people who have no
locus standi in judicio.
Now, as I
see it, it is not disputed that the Applicant/Plaintiff is not the
legal guardian of the minor child Pelaelo and in fact it is precisely
for this reason that he is applying to Court to be appointed one.
This notwithstanding the fact that it is common cause that the minor
child has her own legal guardian namely 'Mapelaelo. There is no
evidence that the Applicant/Plaintiff has been appointed by the
deceased's family as legal guardian of the child at all and it
follows, in my view, that he has failed to show that he is entitled
to sue in that capacity and that he has a direct and substantial
interest capable of legal enforcement in the matter. Accordingly the
application contained in this prayer falls to be dismissed.
fairness to Mr. Tsenoli for the Applicant/Plaintiff he very fairly
and properly conceded that the Applicant/Plaintiff has failed to show
that he has locus standi in the matter.
the Applicant/Plaintiff has no locus standi to be appointed guardian
of the minor child in question the application for joinder of the
child's natural mother 'Mapelaelo who is its natural guardian after
the death of her husband the deceased stands on a somewhat different
footing. This is so mainly because of two considerations namely:
is the deceased's wife as well as the minor child's natural mother
and legal guardian. I find therefore that she has a direct and
substantial interest capable of legal enforcement in the matter.
upper guardian of all minor children within its jurisdiction this
Court has a duty to safeguard the interests of the minor child in
question in the instant litigation.
mainly attracted by the following remarks of Claassen J. in the case
of Yu Kwan v President Insurance Co Ltd 1963 (1) SA 66(T) at 69
(confirmed in President Insurance Co Ltd. v Yu Kwan 1963 (3) SA 766
"Where an action has been taken on behalf of a minor without the
necessary application to Court, the Court will ratify such a step ex
post facto, if the step had been to the benefit of the minor and
would probably have been approved by the Court in the first
in the same vein the learned judge states the following at p 70:-
"The Court being the upper guardian of the minor in this case
can step in and ratify nunc pro tunc what has been done on behalf of
the minor by a person who bona fide, but mistakenly believed himself
to be the natural guardian of the minor."
remains in this regard then to investigate the matter and consider
two issues firstly whether the Applicant/Plaintiff bona fide, albeit
mistakenly, believed himself to be the natural guardian of the minor
child and secondly whether his action for damages is in the best
interest of the minor.
the first issue raised above it will be recalled that the
Applicant/Plaintiff issued summons for damages not on his own behalf
but in a representative capacity. It seems to me therefore that he
did not seek any personal interest as such. On the contrary he
crisply states the following in paragraphs 4 and 5 of his founding
In the summons I described myself as the guardian of deceased's
dependants, namely his wife and minor child. This was done in good
faith as I indeed became their factual guardian as even under
customary law I am deemed their father.
In view of the role I have played in the matter in pushing the said
deceased's dependants' claim through the Court, and their factual
dependency on me it would be in the interests of the said minor child
that its natural mother be joined in as a co-plaintiff and I also be
guardian of the said minor child for purposes of winding up the
litigation on its behalf. I respectfully aver that, no prejudice will
be occasioned to Defendant."
paragraph 5 of his opposing affidavit Roland Frederick John Castle in
effect makes a bare denial to Applicant/Plaintiffs averment that he
acted in good faith in instituting the action in his name. The
deponent relies on the fact that the Applicant/Plaintiff was
represented by attorneys at all relevant times and accordingly
alleges that "they (the attorneys) would have informed him (the
Applicant/Plaintiff) in all probabilities that he was neither the
natural nor the legal guardian of either of the dependants and that
no valid action could be instituted."
to me that Roland Frederick John Castle's averment quoted above is
speculative and that no reliance can be made on it in the face of the
Applicant/Plaintiff's unchallenged version that under customary law
he is "deemed" the father of both 'Mapelaelo and the minor
child in question. It is not necessary to express any view on the
legal validity of this view but what is important is that it sets out
the Applicant/Plaintiff's subjective state of mind towards good
faith. This is further borne out by the unchallenged fact which I
accordingly accept on the authority of Plascon-Evans Paints v Van
Riebeeck Paints (Ptv) Ltd. 1984 (3) SA 623 AD that both 'Mapelaelo
and the minor child are factually Applicant/Plaintiffs dependants and
that he has been responsible for pushing their claim through the
court. It is difficult to imagine why he would take all this trouble
unless he bona fide regarded himself as their guardian, albeit
mistakenly. I come to the conclusion on the probabilities therefore
that the Applicant/Plaintiff bona fide, albeit mistakenly, believed
himself to be the natural guardian of the minor child.
the second issue as to whether Applicant/Plaintiffs action for
damages is in the best interests of the minor child I would have
thought that this was obvious enough. Moreover this is not disputed
as even the summons was issued on behalf of the minor child. It
follows therefore that the action for damages is in the best
interests of the minor child. Nothing more need be said on the issue.
follows from the aforegoing that this is a fit case in my view where
the Court must step in, in the best interests of the minor child and
ratify nunc pro tunc what the Applicant/Plaintiff has bona fide,
albeit mistakenly, done on its behalf. There can be no real prejudice
and none was shown to exist.
be borne in mind that joinder of parties is a matter within the
discretion of the Court. See Waikiwi Shipping Co. v Thomas Barlow &
Sons 1978 (11 SA 671 AD at 678. That however is not to say that the
Court must exercise its discretion arbitrarily or for a wrong
purpose. Although the Applicant/Plaintiff is strictly speaking
non-suited I have considered the best interests of the minor child in
the matter as being one of the decisive factors. I have also
considered the fact that 'Mapelaelo is indisputably the natural
guardian of the minor child after the death of her deceased husband.
Moreover I have taken into account the fact that she has actually
filed an affidavit in support of her own joinder in which she
confirms that following the death of her deceased husband she and
Pelaelo became dependants of the Applicant/Plaintiff in respect of
support and maintenance. Significantly this is in fact admitted. She
further confirms that Applicant/Plaintiffs action for damages was
made on behalf of the minor child and herself and that it would be in
the interest of the minor child that she should be joined as a
co-plaintiff in the matter.
I consider that it would be convenient to order joinder of 'Mapelaelo
now rather than dismiss the application and suffer her to institute
fresh summons thus adding more costs and delay to the prejudice of
the minor child in particular.
Defendant's opposition to the application for joinder, as I see it,
is predicated upon the perceived fear that such joinder would rob the
Defendant of a special plea of prescription and hence it would be
prejudicial to it. I cannot accept this argument mainly for the
reason that prescription does not run against a minor. See Commercial
Union v Makhabane Letsie 1997-98 LLR and Legal Bulletin 339.
follows from the aforegoing therefore that the application for
joinder of 'Mapelaelo as a co-plaintiff must succeed. It seems to me
that it would be premature at this stage to detennine prescription in
so far as it affects her in her personal claim. That issue would
first have to be pleaded and canvassed in the normal way before an
informed and proper determination can be made on it.
matter remains to be dealt with namely costs. The general rule is
that costs follow the event. However, as is obvious in this case, the
Applicant/Plaintiff has enjoyed both success and failure in this
application. All things being considered I have mainly been
influenced by the following factors:
Applicant/Plaintiffs application for joinder in the particular
circumstances of this case is in the nature of an indulgence and as
such I consider that it would be fair and just to saddle him with
costs. Conversely it would not be fair and just to saddle the
Defendant with costs in these circumstances.
previously stated the Applicant/Plaintiff delayed by a period of
more than two years to bring the application to court after he had
been challenged on locus standi. This has delayed finality in the
matter and I consider that the court must mark its displeasure by an
appropriate order as to costs.
Applicant/Plaintiff has failed in his attempt to be appointed
co-guardian of the minor child in terms of prayer 2 of the Notice of
follows from the aforegoing that the Applicant/Plaintiff must pay
costs. In sum, there shall be an order as follows:
Tsiu is hereby joined in these proceedings as a co-plaintiff.
application of Lerata Tsiu to be appointed co-guardian of the minor
child Pelaelo Tsiu is dismissed.
acts and procedural steps taken by Lerata Tsiu on behalf
of 'Mapelaelo Tsiu in the main action are hereby ratified and
confirmed retroactively and are deemed to have been duly taken by him
in his representative capacity.
Applicant/Plaintiff must pay the costs of the application.
of March 2001
Applicant/Plaintiff : Mr. Tsenoli
Respondent/Defendant: Mr. Grundlingh
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