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CIV/T/229/94
IN THE HIGH COURT OF LESOTHO
In the matter of:
'MAMONEHELA THAMAHANE Plaintiff
vs
NKOPANE THAMAHANE 1st Defendant
LESOTHO NATIONAL GENERAL
INSURANCE COMPANY(PTY)LTD 2nd Defendant
JUDGMENT
Delivered by the Hon. Mr Justice M.L. Lehohla on the llth day of November, 1999
The plaintiff is 'Mamonehela Thamahane in this case. She is suing Nkopane Thamahane and the Lesotho National Insurance Company. She sues them for payment of M6,000.00 being loss of support and payment of further MM3,369.13 representing funeral expenses. This is the funeral of her son who was supporting her. She also claims costs of suit.
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Her Summons sets out in the declaration at page 4.1 that on the 16th June 1991, Malefetsane Thamahane the deceased, was knocked down by a motor vehicle A6637 ensured by the second respondent and Malefetsane died as a result of injuries sustained in the collision. She sets out that this collision resulted from the sole negligence of the driver of the motor vehicle A6637.
This accident as I said occurred on the 16th of June, 1991, but the summons was only issued on the 30th of May 1994 and this put the summons more than two years outside the time when the summons should have been issued and served; and the action thereby instituted. The two year period and as stated in the heads of argument by Mr Grundlinghn the cause of action arose on the 25th of July 1991. Of course the claim form was served within the two year period of the cause of action arising and that was within the time that wouldn't prejudice the plaintiff. But now the summons was served upon the second defendant only on the 7th July 1994 and that summons ought to have been served within the period of two years from the date the cause of action arose.
A further provision is that the claim can only be enforceable by legal proceedings commenced by Summons served on the insurer only if such service was
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effected before the expiry of sixty days from the date on which the Claim was delivered or sent to the insurer. While the plaintiff appears to have satisfied this provision she was also required to satisfy the one preceding if above.
Unfortunately this was not done, the law as indicated on several occasions on a situation such as prevailing before me now is very plain and simple and clear as indicated in the Civil Appeal No.36 of 1994 - a Court of Appeal matter between Lesotho National Insurance Company Pty Ltd and Sekhesa - where it was confirmed that a claim in terms of the Motor Vehicle Insurance Order 1989 prescribes if someone is not served within the two year prescriptive period as suspended by the 60 day period after delivery of claim in keeping with the same principle outlined in Sekhesa would be the case of 'Maselloane Tauhali, that is, CIV/T/298/94 vs Lesotho National Insurance Company (unreported) at page six where a similar point is also highlighted. The relevant portion reads :-
"Given that the cause of action arose on the 9th May, 1992 and the summons was only served on the 12th July, 1994 it is clear to me that the claim had prescribed because the two year period had expired on the 8th of May, 1994."
So, on that ground alone this matter that is before me now ought to be
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dismissed. The plaintiff's claim ought to be dismissed that is saying nothing about the fact that this matter has been brought to this court wrongly. In other words what is claimed here is less than ten thousand maluti and ought to have been pursued in the Subordinate Court.
While in fact this could have been an option that is sending this matter to the Magistrate's Courts it appears it would have been of very little comfort to the plaintiff because at the door facing her sternly would be what I have just dealt with; namely, the question of the prescription. The Magistrate would never have been able to go over that hurdle in the plaintiff's favour. So I think it has been wise of the plaintiff's Counsel to let this matter be disposed of in this Court without involving the plaintiff in additional expenses and costs. The judgment I make therefore is that the second special plea on prescription is upheld with costs.
JUDGE
11th November, 1999
For Plaintiff: Mr Mokatse
For Defendants : Mr Grundlighn