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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