CIV/APN/19/84

IN THE HIGH COURT OF
LESOTHO In the Application of :

NONE K. MONARE Applicant

v

LESOTHO NATIONAL INSURANCE CO.
Respondent

JUDGMENT

Delivered by the Hon. Acting
Judge Mr. Justice J.L. Kheola on the 9th day of March, 1984

This is an application for an
order in the following terms:-

1. Rule Nisi be issued and
returnable on
a date and time this Honourable Court
may order,
calling upon the Respondent
to show cause, (if any) why:

1. 
   He should not be ordered to
   issue
   a token of insurance to Applicant;

   
   

2. 
   He should not be ordered to
   pay
   damages incurred or occasioned by
   Applicant for
   Respondent's
   refusal and delay to issue that
   token of
   insurance;

   
   

3. He
   should not be ordered to pay

   
   

costs
of this application;

(d) Further and/or alternative
relief.

2. That prayer 1(a) and (b)
above should

operate as an immediate interim
order.

The applicant has supported this
application with an affidavit which sets out the facts as follows; On

/the

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the 25th January, 1984 he went
to the offices of the respondent company to report the loss of his
token of

insurance No. 1884. He was
given "a lost token affidavit" form which he duly
completed. He was then instructed to go to
a Commissioner of Oaths
for his signature and attestation. He went to the Law Office where
one Mr. Kamalanathan the Principal Crown
Counsel duly signed and
attested the form. The applicant took the said form back to the
offices of respondent company where he was
told that he should have
gone to the Police

Commissioner of Oaths, and he
was asked to sign another form and take it to a Police Commissioner
of Oaths. He refused to do this
on the ground that there was nothing
on the form to show that it had to be signed and attested by a Police
Commissioner of Oaths.

The applicant alleges that the
refusal by the respondent company to issue him a token of insurance
is prejudicial to him since he
is a businessman and has to go to
Johannesburg from time to time to attend to his

business matters. He is going
to lose money if he does not go to Johannesburg. He has attached to
this affidavit a "Lost Token
Affidavit" duly signed by him
and sworn

before Mr. Kamalanathan at the
Law Office on 25th January, 1984.

On the 26th January, 1984
Mofokeng J. granted the interim order and made the rule nisi
returnable on the 30th January, 1984, on that
date the rule nisi was

/extended..

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extended to the 9th of March,
1984.

The General Manager of the
respondent company has filed the opposing affidavit in which he has
taken the point in limine that the application be dismissed
with costs on the ground that the applicant has cited the wrong
respondent. He says that his inquiries
have revealed that the
applicant has been dealing with Minet

Kingsway (Pty) Ltd. whose
business premises are at Development House, Kingsway, Maseru, and who
place by far the bulk of third party
insurance business with the
respondent company. There are other brokers in Lesotho who place
business with the respondent e.g. Bowring
Barclays Insurance Brokers
who operate from Barclays Bank branches.

He says that Minet Kingsway
(Pty) Ltd. are insurance brokers in terms of Section 53 of the
Insurance Act No.18 of 1976 as amended.
He denies that it is proper
for the applicant to treat the actions of Minet Kingsway (Pty) Ltd.
as if they are those of the respondent.
In any case if it is the
applicant's case that Minet Kingsway (Pty) Ltd. are agents of the
respondent then he says that such contention
is so fundamental to
applicant's case that it should have been specifically alleged in the
founding affidavit. Failure to allege
it is fatal defect which
cannot be cured by a Replying affidavit.

In the alternative the General
Manager of the respondent company alleges that even if the Court
comes

/to the

-4-

to the conclusion that Minet
Kingsway is an agent of the respondent company then it was necessary
that the applicant must prove to
Minet Kingsway and the respondent
that the token of insurance No. 1884 has been lost as required by
Section 5(4) of the Motor Vehicle
Insurance Order of 1972. He goes on
to say that they have instructed

their agents that no replacement
token should be issued unless and until they are satisfied that the
loss or theft has been reported
to the police or the destroyed token
is produced and surrendered to such agent or broker who must forward
it to the respondent.

It will be seen that nowhere in
his papers does the applicant allege that his case is based on
Agency. He

merely alleges that he has an
insurance contract with the respondent; and that on the 25th January,
1983 he went to the offices of
the respondent to make a report of a
lost token of insurance and asked that it be replaced. It is

the respondent who alleges that
the people with whom the applicant had been dealing are Minet
Kingsway (Pty) Ltd.

who are brokers who place by far
the bulk of third party insurance with the respondent. A broker is a
kind of an agent who is to be
licenced under Section 53 of the
Insurance Act No.18 of 1976. He (broker) is a middle-man between the
parties for the purpose of
negotiating a contract, he is the agent of
both for the purpose of settling the final terms of the contract and
la authorized

/to bind

-5-

to bind both in so far as he
does not exceed his instructions. (See Benoni Produce & Coal
Co.. Ltd. v Gundelfinger, 1918 J.P.D. 453). The respondent
has admitted that Minet Kingsway is their agent in the sense that
they are brokers with whom they
have substantial business. The
respondent has not denied that a contract of insurance established by
token of insurance No. 1884
still subsists between them and the
applicant. In my

view, the respondent company is
bound by the actions of their agent unless it can be shown that the
agent acted beyond his authority.

Section 5(4) of the Motor
Vehicle Insurance Order of 1972 provides that a person who has lost a
token of

insurance must prove such loss
before a replacement token

can be issued. It appears that
in order to facilitate compliance with this provision the respondent
has designed a form named "Lost Token Affidavit".
This form has to be sworn to before a "Commissioner of
Oaths". The applicant was given this form and he went to the
Law Office where Mr. K.C. Kamalanathan, Principal Crown Counsel made
him swear to the affidavit. In my view, the respondent or his agent
behaved in an unreasonable way when they refused

to accept the affidavit on the
ground that the applicant ought to have gone to a Police Commissioner
of Oaths.

Commissioners of Oath are the
same and it is beyond my

understanding why the respondent
or his agent had a

feeling that an affidavit sworn
before a Police Commissioner

of Oaths is a better proof of
the loss of a token of insurance as required by Section 5(4) of the
Order. If in addition to the affidavit
the applicant had been

asked
to go and report the loss of the token to the police as

/a further

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a further precaution against
fraud, that would have been a different matter. There is nothing in
Section 5(4) of the Order which
requires that the affidavit should be

sworn before a Police
Commissioner of Oaths. I come to the conclusion this requirement by
the respondent through

their agent was entirely
unwarranted and that the applicant cannot be blamed for having
refused to comply with it.

For the reasons stated above the
Rule is confirmed in terms of prayer 1 (a) with costs. I do not wish
to say anything about prayer
1 (b) which was never argued before me.

ACTING JUDGE 9th March,
1984

For the Applicant : Miss.
Ramahloli For the Respondent : Mr. Moiloa