HIGH COURT OF LESOTHO
substituted for her husband
by the Honourable Mr. Justice M.M. Ramodibedi on the 15th day of
point of dispute in this case is a short one namely whether Central
and Local Courts have jurisdiction to hear cases involving motor
vehicle accidents or the common law. First the salient facts which
are themselves hardly in dispute.
began on or about the 2nd day of October 1992 when the Respondent's
husband (hereinafter conveniently referred to as the Respondent) who
was driving his motor vehicle gave a lift to the Appellant's wife at
the latter's request. As fate would have it the
lost control of his motor vehicle along the way as a result of which
it overturned injuring the Appellant's wife in the process.
Appellant then sued the Respondent at Tale Local Court for damages
(the papers are silent on the actual amount) for his wife's injuries
under case No. 59/96 and won. Respondent's appeal to Tšifalimali
Central Court in case No. 104/96 was also unsuccessful and he lodged
a further appeal to the Judicial Commissioner's Court. While the
latter appeal was pending however the Respondent brought a review
application before the Leribe Magistrate's Court in case No. 153/97
on the ground that the lower courts had no jurisdiction in the
matter. The Magistrates' Court duly agreed and accordingly ordered
that the proceedings in the lower court in the said case No. CC59/96
of the Tale Local Court were null and void ab initio for want of
jurisdiction of the local court in question.
Appellant has accordingly appealed to this Court against the decision
of the Magistrate's Court. He relies on three grounds of appeal as
Learned Magistrate erred in holding that the Local Court had no
jurisdiction to hear a matter concerning damages such as the one in
CC59/96 Tale Local Court.
Learned Magistrate erred in granting the application, relying on the
Insurance Order 1989, yet the Local Court and Central Court never
purported to administer the Insurance Order.
Learned Magistrate erred in granting the application yet respondent
was not entitled or was estopped from coming on review on a matter in
respect of which he prosecuted an unsuccessful appeal, while he still
knew of the irregularity (if there be any)."
ground of appeal can quickly be disposed of but before doing so and
in order to understand the motivation behind the Respondent's review
application where the appeal was still pending it is necessary to
refer to the lincontroverted contents of paragraph 6 of his founding
affidavit in support of the review application in which he averred as
recently sought legal advise (sic) concerning this matter and I was
advised that matters concerning motor vehicle accidents should not be
dealt with in the Basotho Courts because damages flowing from such
accidents are regulated by the Motor Vehicle Insurance Order 1989. I
am advised further that this matter cannot be dealt with under
customary law as the issue of conveyance of persons by motor vehicles
is a peculiarly foreign concept to Sesotho custom and issues of
damages arising therefrom are regulated by received laws and by
statute which would therefore fall outside the scope of the local
to me beyond question that what the Respondent actually meant in
paragraph 6 of his founding affidavit as fully reproduced above is
that he was not aware of his right to review the matter at the time
he lodged an appeal on the merits of the case. A similar situation
Peri Urban Arears Health Board and others 1950 (I) SA 306 (W) wherein
Clayden J stated the following at page 310 thereof:
"Finally it was argued that as the applicant had chosen to
exercise his right to appeal from the decision of the valuation court
he was precluded from bringing its decision in review before this
Court. Reliance was placed on Mahomed v. Middlcwick, N.O., and
Another (1917, C.P.D. 539) and Rex v.
(1946, T. P.D. 401). These cases are, I consider, quite inapplicable.
They are based upon the reluctance of a court to disturb the finality
of its own judgment on appeal in subsequent review proceedings: not
on any refusal to interfere with the decision of some other appeal
tribunal. And on the facts of this case it appears that the applicant
was not aware of his right to review these proceedings when,
futilely, he tried to appeal from them. The applicant is I consider
entitled to the relief for which he firstly asks."
respectfully agree with these remarks which are apposite to the
for the Appellant relies on the following passage by Herbstein &
Van Winsen: The Civil Practice of the Superior Courts in
Africa 3rd ed p752 (the passage actually appears in the 4th edition
"The fact that an appeal has been unsuccessfully brought against
a judgment will bar review proceedings if the appeal was heard on the
merits and a final decision given thereon by the appeal Court."
view I do not think that the above quoted passage avails the
Appellant in the special circumstances of this case as set out in
paragraph 6 of the Respondent's founding affidavit in the review
application. I mention only five reasons. Firstly, at best for the
Appellant the appeal in question had not been finalised but was
admittedly pending before the Judicial Commissioner's Court. Secondly
the Central and Local Courts in question including the Judicial
Commissioner's Court had not dealt with the merits of the
jurisdictional issue raised by the Respondent on review before the
Magistrate's Court. Thirdly the Appellant did not raise any objection
to the matter proceeding by the way of review and must be held to
have acquiesced to such procedure. Fourthly there was no real
prejudice shown for adopting a speedy remedy by way of review as
opposed to appeal (afterall both procedures have one aim in common
namely the setting aside of the decision of the lower court) except
in so far as costs of the appeal itself may be concerned. The
Appellant is however not precluded from recovering such costs (if
any) if so advised. -Fifthly by successfully moving for review the
Respondent must no doubt be taken to have abandoned the futile appeal
in question. It is significant that this was on legal advice as there
can be no doubt in my mind, judging
aforesaid contents of paragraph 6 of his founding affidavit, that the
Respondent was unaware of his right to review the proceedings as
opposed to an appeal on the merits.
then to the real point of dispute raised at the beginning of this
judgment namely whether Cental and Local Courts have jurisdiction to
hear cases involving motor vehicle accidents or the common law. In
order to determine this issue it is necessary to have regard to the
provisions of the Central and Local Courts Proclamation No.62 of 1938
(the Proclamation). Three sections thereof shall suffice for the
purposes of this judgment namely sections 6, 9 and 10 which provide
"6. Every Central and Local Court shall have and may exercise
civil jurisdiction, to the extent set out in its warrant and subject
to the provisions of this Proclamation, over causes and matters in
which the defendant is ordinarily resident within the area of the
jurisdiction of the Court, or in which the cause of action shall have
arisen within the said area: Provided that notwithstanding anything
contained in this or any other Proclamation, such jurisdiction shall
be deemed to extend to the hearing and determination of suits for the
of civil debts due to His Majesty under the provisions of any law,
where such jurisdiction has been expressly conferred upon a Central
or Local Court under section nine: Provided further that civil
proceedings relating to immovable property shall be taken in the
Central or Local Court within the area of whose jurisdiction the
property is situated.
to the provisions of this Proclamation a Central or Local Court
shall administer –
native law and custom prevailing in the Territory, so far as it is
not repugnant to justice or morality or inconsistent with the
provisions of any law in force in the Territory;
provisions of all rules or orders made by the Paramount Chief or a
Chief, Sub-Chief or Headman under the Chieftainship (Powers)
Proclamation, and in force within the area of jurisdiction of the
provisions of any law which the Court is by or under such law
authorised to administer; and
provisions of any law which the Court may be authorised to
administer by an order made under section ten.
Minister, with the concurrence of the Chief Justice, may by order
confer upon all or any Central or Local Courts jurisdiction to
enforce all or any of the provisions
of any law specified in such order, subject to such restrictions and
limitations, if any, as the Minister, with the concurrence of the
Chief Justice, may specify."
parties are on common ground that the warrants defining the
jurisdiction of the Central and Local Courts in question in terms of
Section 6 of the Proclamation do not include the common law and/or
matters arising from motor accidents. Nor are such matters included
in Section 9 of the Proclamation.
As I see
it, it is in the very nature and scope of the proclamation that the
Central and Local Courts are empowered to deal only with native law
and custom and such provisions of law as are specifically conferred
on them under the proclamation or by the Minister acting with the
concurrence of the Chief Justice. As creatures of statute they have
no power to operate beyond this clearly defined jurisdiction.
for the Appellant submits that customary law has developed
sufficiently to cater for issues which might otherwise fall purely
under the common law or more appropriately Roman Dutch Law.
view this submission has merely to be articulated to be rejected.
Proclamation clearly empowers the Central and Local Courts to deal
with customary law only and not the common law or Roman Dutch Law.
Any change based on the perceived development of customary law is of
course a matter for the Legislature and not for the courts.
in his book: Legal Dualism in Lesotho Sebastian Poulter says at page
18 thereof: -
"The jurisdiction of the Basotho Courts is circumscribed by
statute in three separate ways, quite apart from the limits, mainly
financial, that are set out in their individual warrants. First in
terms of section 9 of the Central and Local Courts Proclamation these
courts are only authorised to administer Sesotho law together with a
very limited range of statutory provisions. There is no power
enabling them to decide a case under the common law. Thus the fact
that a plaintiff has instituted proceedings in a Basotho Court
virtually amounts to an election on his part to have his case decided
according to Sesotho law and he cannot complain if he discovers
afterwards that he would have done better by commencing an action at
common law in a subordinate court."
that this is indeed so.
attractive argument Miss Tau for the Respondent submits that claims
arising out of motor vehicle accidents as in the instant matter are
statutorily governed by the Insurance Order 1989 (as amended).
Section 13 (1) thereof deals with jurisdiction and provides that any
action to enforce any such claim may be brought in any Lesotho court
of "otherwise" competent jurisdiction within whose area of
jurisdiction the incident which caused the injury or death occurred.
The word "otherwise" used in the section is in my view
intended to convey a strict limitation to the courts' own ordinary
competent jurisdictions. It is clear to me therefore that it is not
every court in Lesotho that is empowered to deal with claims arising
out of motor accidents. It must be a "competent" court and
for reasons fully set out above such court cannot by any stretch of
the imagination include a central or a local court both of which
ordinarily deal with customary law. Claims for damages arising out of
motor accidents are by their very nature foreign to Sesotho law and
custom. They involve a completely different concept altogether from
customary law in as much the same way as motor vehicles are
phenomenon to the Basotho traditional way of living.
follows from the aforegoing considerations that the learned
magistrate in the court below was fully justified in coming to the
conclusion that the Central and Local Courts in question had no
jurisdiction in the matter and that accordingly the proceedings
before them were null and void ah initio for that reason.
Attorney-General v Dlamini Holdings CIV/APN/7/97 (unreported) this
Court had occasion to warn against lack of adherence to
jurisdictional limits in the following words at page 16 thereof: -
"Mr. Pheko sung praises for the Learned Magistrate's bravery in
entertaining a matter of this nature. This Court is not impressed.
Misplaced bravery such as is the case here cannot be tolerated. It is
certainly the feeling of this Court that it is a recipe for chaos if
Magistrates do not observe their own jurisdictional limits."
remarks apply with equal force to the presidents of the Central and
Local Courts who are therefore warned to toe up the line and strictly
their own jurisdictional limits.
result the appeal is dismissed with costs.
of August 2001
Appellant : Adv M.E. Teele
Respondent : Miss M. Tau
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