CIV/T/363/86

IN THE HIGH COURT OP LESOTHO
In the matter
between:

MALEE EMSLEY PUTSOA Plaintiff

and

THE ATTORNEY GENERAL Defendant

JUDGMENT

Delivered by the Hon. Acting Mr. Justice M.L. Lehohla on
the 27th day of November, 1986

Summons was issued by plaintiff in this matter and filed
of record in the Registrar's office on 27th May 1986. . Service on
defendant
was effected on 12th June 1986.

In the summons plaintiff claims against the defendant

the sum of M20,000 made up as follows;-

1. 
   M 5,000 for unlawful detention

   
   

2. 
   M 5,000 for unlawful arrest

   
   

3. 
   M10,000 for malicious prosecution

   
   

Furthermore plaintiff claims interest at the rate of 22%
per annum from the date of issue of summons to date of payment, costs
of
suit plus further and/or alternative relief.

The Attorney General gave notice of his intention to
oppose this matter on 19th June 1986, and on 4th July 1986 acting in
terms of
Rule 32(1) raised a special plea based on prescription.

The rule reads:

" The parties to any civil action may, after
institution

/of ...

-2-

of proceedings agree upon a written statement of facts
in terms of a special case for adjudication of the Court."

Subsection (2) of the Rule supra was complied with by
both parties in that as a result thereof plaintiff filed on 29th July
1986 a
document styled "Special case in terms of Rule 32" a
subheading of which reads as follows:- "The parties in these
proceedings agree upon the following facts." The subheading is
followed by a tabulation of facts agreed upon, namely:-

1. 
   The plaintiff was arrested on Saturday 18th
   September,
   1982 and the plaintiff was subsequently
   acquitted on the 15th
   December, 1982.

   
   

2. 
   The cause of action arose on or about the
   15th
   December, 1982.

   
   

3. 
   In effecting the arrest and prosecution, the
   police
   were acting during the course of their duties and
   acting
   within the scope of their authority as
   servants of the Lesotho
   Government.

   
   

4. 
   A letter of demand for the sum of M10,000

   
   

was delivered to the Solicitor-General on or about the
21st May, 1984.

5. Summons was duly served on the Attorney-General on
or
about the 12th June 1986.

The question of law in dispute between the parties is
set out as follows:-

" There is a dispute between the parties as to
whether the plaintiff's claim has prescribed in terms of Government
Proceedings
and Contracts Act No.4 of 1965."

/While ...

-3-

While at this point in reference to and contrast with
tabulation 2 of points agreed upon I may point out

that in argument Mr. Mpopo for the applicant/defendant
submitted that the cause of action arose in 1982 i.e. on 18th
September, 1982
and pointed out that despite this fact no demand was
made by plaintiff until 21st May 1984. He buttressed his argument on
the words
appearing in paragraph 4 of the declaration namely that "On
or about the 18th September, 1982 plaintiff was arrested and kept
in
detention by the police until 6th October, 1982."

In reply Mr. Mphutlane for respondent/plaintiff conceded
that while this may be so, it is important to bear in mind that the
first
stages of this malicious prosecution in the form of arrest and
detention may have been within the law in so far as the Crominal
Procedure
and Evidence Act 1981 legitimises detention for
interrogation for no more than forty eight hours. In fact the
malicious prosecution
was proved in that plaintiff was acquitted on
15th December 1982. Thus cause of action arose, he argued, on 15th
December 1982 when
the malice complained of in these pro­ceedings
became conclusively manifest. Therefore the two years within which
prescriptive
period runs as envisaged by the Government Proceedings
and Contracts Act 1965 Section 6 thereof should end on 15th December
1984.

Section 6 reads:-

" Subject to the provisions of Sections
6,7,8,9,10,11, 12 and 13 of the Prescription Act no action or other
proceedings shall
be capable of being brought against the (State) by
virtue of the provisions of section two of this Act after the
expiration of the
period of two years from the time when the cause of
action or other proceedings first accrued."

/It was ...

-4-

It was argued on behalf of Respondent/Plaintiff that it
would appear that section 6 supra is subject to provisions of
prescription
Act 6 of 1861 none of which envisages delictual
liability. Sections 6 to 13 of this Act it was argued confine their
application to
liquid or money debts or contractual obligations only
and say nothing about delictual claims, the argument went on.

Learned Counsel for Respondent/Plaintiff accordingly,

relying on The Roman-Dutch and Sesotho Law of Delict by
Palmer, pointed out that the learned author regarding prescription
has this
to say at page 96 "Extinctive pres­cription on
delictual actions in Lesotho is governed not by statute but by very
old common
law rules." Consequently it was urged that in order
for this matter to be resolved resort has to be had to Common Law.
In a
footnote the learned author emphasises that Lesotho's
Prescription Proclamation deals mainly with contractual obligations
and not
at all with delictual obligations.

It was argued that since under Common Law there are
various incidents of extending any prescribed period it would appear
that the
letter of demand by plaintiff to defendant would have the
effect of interrupting the pres­cription period and that this
period
should be reckoned to run from the time of such demand which
factor would bring plaintiff's claim within the provisions of the
prescription
Act supra. Counsel for Respondent/Plaintiff submitted
on the authority of Zietman vs Zietman 1944 NPD at 389 that
prescription begins
to run from the time the injured party becomes
aware of the wrong and submitted further that nothing express or
implicit would preclude
the Common Law on inter­ruptions from
operating in the instant case. He urged me

/to treat ...

-5-

to treat this instant case in terms similar to
provisions of Motor Vehicle Insurance Order No.18 of 1972 Section 13
(2)(a) of which
says: "The right to claim compensation

under Subsection (1) shall become prescribed

upon the expiration of a period of two years as from the
date upon which that claim arose:

Provided that prescription shall be suspended during the
period of sixty days referred to in sub-section (2) of section
fourteen"
which merely says a claim cannot be enforceable before
the expiration of sixty days from the date on which the claim was
sent to
the registered company.

Referring to page 261 of the Law of Delict by McKerron
learned Counsel submitted that plaintiff had made a case which meets
the criterion
that in order to succeed in an action for malicious
prosecution he must show that

(a) the defendant instituted the proceedings;

(b) acted without reasonable or probable cause;
(c)
was actuated by malice; and finally

(d) that the proceedings terminated in plaintiff's
favour.

Rounding off his submissions Mr. Mphutlane urged the
Court to take the view that the period of prescription as interrupted
should
have run for 2 years from the date of demand i.e. 21st May,
1984 so that because in terms of the Act plaintiff was precluded from
issuing summons until the expiry of a month the logical consequence
would be that the period of prescription would end on 21st June,
1986.

In making submissions that preceded Mr. Mphutlane's
reply Mr. Mpopo had pointed out that Section 4 of Government
Proceedings and contracts
Act provides that a month's notice

/has ...

-6-

has to be given and allowed to lapse before summons can
be issued against Government.

He maintained that cause of action arose on 18th
September, 1982. The demand was only made on 21st May 1984. The last
day within
which summons and not letter of demand should have been
served on the Attorney-General is 18th September 1984 but sommons was
only
served on 12th June 1986. He submitted therefore that the action
was well out of time.

He argued further that a letter of demand has not

the effect of interrupting the prescription period as
far as the provisions of the 1965 Act supra go, and also that the
Court has
no discretion to extend the period of pres­cription
even on a good cause shown. For had this been the case the
legislature would
have had no hesitation to include a provision
similar to that found in Section 34 of the Police Order 36/71, now
amended to read
Section 60, reading:

" For protection of persons acting in pursuance of
this Order ....... every civil action against such

person shall be commenced within six months

next after the cause of action arises and notice

shall be given to defendant at least

two months before the commencement of the said action:

Provided that the Court may for good cause

shown extend the said period of six

months." (My underlings)

Arguing in similar vein he referred to Sec. 13(2) of the
Motor Insurance Order supra and submitted that if what obtains in
that Order
applies in the instant case the Legislature in its wisdom
would have included a similar Section or provision in the statute
under
consideration. But in both cases it has not.

/Reference ...

-7-

Reference to the Government Proceedings and Contracts
Act 1965 Section (2) would suffice to answer the question whether as
submitted
by plaintiff's counsel, Lesotho statute only relates to
contractual and not delictual liabilities.

It reads "Any claim against the Government, which
would if that claim had arisen against a subject, be the ground of an
action
or other proceedings in any competent Court, shall be
cognisable by any such Court,whether the claim arises out of any
contract lawfully
entered into on behalf of the Crown or out of any
wrong committed by any servant of the Crown acting in his capacity
and within the
scope of his authority as such servant:

Provided that nothing in this Section contained shall be
construed as affecting the provisions of any law which

limits the liability of the Crown in respect of

any act or omission of its servants, or which prescribes
specified periods within which a claim shall be made in

respect of any such liability " I have underlined

the words relevant to the instant matter.

On the basis of the foregoing it appears that the
learned author Palmer was labouring under a misconception when he
said the question
of extinctive prescription is not governed by
statute but by common law. Any argument based on this view cannot
hold for it disregards
the exis­tence of the 1965 Act supra.

I am also of the view that the Court has no discretion
to extend the prescription period to affect provisions of Sec. 6 of
the said
Act or to read into that Section the spirit embodied
expressly in what was referred to as sections analogous to this one
in question.

/Consequently ...

-8-

Consequently I would uphold the special case made by
defendant. Costs are accordingly awarded to Applicant/ Defendant.

M. L. LEHOHLA ACTING JUDGE

27th November, 1986

For the Plaintiff : Mr. Mphutlane
For the
Defendant : Mr. Mpopo