CIV/T/832/86

IN THE HIGH COURT OF
LESOTHO

In
the matter between:

ISAAC M. MOHLOTSANE Plaintiff

V
PROTEA ASSURANCE CO. Defendant

J U D G M E N T

Delivered by the Hon. Mr. Justice M.L. Lehohla on
the 4th day of December 1989.

On 26th November 1986 the plaintiff sued out of the
office of the Registrar summmons in the form of Edictal Citation
intended to be
served personally on the defe­ndant: Leave to sue
having been granted on 17th November 1986.

This action was instituted against the defendant
following a motor collision that occurred in Maseru on 3rd September
1984.

The defendant is alleged to be an insurer of a vehicle
with registration numbers OB 26865 which was driven by one Daniel
Mokhethi
Tsoaela. The plaintiff was a passenger in a motor vehicle
with registration numbers A 5310 which was involved in the collision
with
the other vehicle OB 26865.

The plaintiff sues the defendant for damages in the
total sum of M78,300 on the basis of the negligence of the driver of
the vehicle
OB 26865 resulting in pain and suffering, loss of future
earnings medical expenses and

/future

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future medical expenses suffered and likely to be
suffered by the plaintiff.

At the hearing of this matter last Friday the defendant
relying on Rule 32(7) raised a special plea.

The Rule says:

"If it appears to the court mero motu or on
the application of any party that there is in any pending action a
question of law or fact which it would be convenient to
decide either
before any evidence is led or separately from any other question the
court may make an order directing the trial of
such question in such
manner as it may deem fit, and may order that all further proceedings
be stayed until such question is dis­posed
of."

The defendant relied on this Rule because it maintained
that

1. 
   The claim form was not sent to the Defendant
   within
   the two year prescriptive period.

   
   

2. 
   Summons was not served upon the defendant
   within the
   period of two years and sixty
   days as from the date of the
   accident.

   
   

On this basis the defendant accordingly prays that the
plaintiff's claim be dismissed with costs.

The plaintiff opposes this application plus the
consequent prayers.

In paragraph 1(d) of the pre-trial conference minutes it
is admitted that the summons was served upon the defendant on 17th
December
1986.

Head 1 of the defendant's heads of arguments sets out
that the parties agreed that the question of the special plea be
disposed of
before any further proceedings can be embarked on in this
matter.

The Lesotho Motor Vehicle Insurance Order No. 18 of 1972
provides in section 13(2) (a) as follows :

/"The

-3-

"The right to claim compensation under subsection
(1) from a registered company 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."

Section 14 (2) says:

"No such claim (as referred to in S. 14(1)) shall
be enforceable by legal proceedings commenced by a summmons served on
the
registered company before the expiration of a period of sixty
days from the date on which the claim was sent or delivered, as the
case may be, to the registered company as pro­vided in
sub-section (1)."

It was submitted on behalf of the defendant that the
cause of action arose on 3rd September, 1984 which is the date of the
accident.
But the claim form was sent by registered post to the
Insurance Company on 2nd September 1986. I may add that this is
common cause.

It is also common cause that summons was issued from
the High Court on 17th November 1986 and served on the 17th December
1986.

Defendant's counsel submitted that both these
occurrences took effect more than 2 years and 60 days after the cause
of action arose.

The plaintiff's counsel contends at page 3 of head 3
that

"in terms of section 13(2) a (read along with its
proviso) the summmons can be served upon the defendant any time after
the expiration
of 60 days and cannot be served upon the defendant
within that period."

He
submitted further that the

"Act does not provide the period within which
summmons should be instituted after the ex­piration of 60 days
and therefore"maintains
that one is entitled to assume"that
any time thereafter the summmons can be issued"

/and

-4-

and concludes that the instant proceedings justify the
action taken by the plaintiff in that regard.

In CIV/T/363/86 Malee Emsley Putsoa vs The Attorney
General (unreported) at p. 5 this court had occasion to
consider the effect of section 4 of the Government Proceedings and
Contracts
Act 1965 on the application of section 6 thereof.

Section 4 of that Act provides that a month's notice has
to be given and allowed to lapse before summmons can be issued
against Government.

Section 6 reads :-

"Subject to the provisions of sections 6 (through)
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 arose.'

But for the fact that the 1965 Act makes reference to
one month's notice as against 60 days before the expiration of which
no summmons
can be issued in the case falling under the Lesotho Motor
Insurance Order No. 18 of 1972, I find that these laws stand in
exactly
homo­logous position of relationship with each other.

Although it seems that in the instant matter the claim
itself cannot be faulted for having been submitted just a day before
the two
year period lapsed the fact remains that it did not entitled
the plaintiff to institute proceedings by way of summmons outwith the
prescribed period of two years reckoned from the date when the cause
of action arose, albeit that summmons is precluded from being
issued
against and served upon the defendant before the 60 day period has
run from the date when such cause of action arose.

Any submission to the contrary is regarded as a
misconception, for as was stated by Aaron J.A. in C of A

(CIV) No. 1 of 1987 Malee Emsley Putsoa vs The
Attorney. General (unreported) at p. 3.

"The

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"The second misconception is as to the effect of
the 30 - day period provided for in S. 4 of the Act. That does not
mean that
a demand may be delivered at any time during the 2 - year
pres­criptive period, and that it is then in order to issue the
summons
within 30 days thereafter even if this is outside the 2 -
year period. It is the summmons which is the starting point in the
calculation,
not the demand. It is correct ... that ss. 4 and 6 must
be read together, but the correct reading is that summons may validly
be
issued only up to the end of the 24th month after the cause of
action arose, and that it must be preceded by a letter of demand

which must be delivered . by not later than.

the 23rd month after the cause of action arose."

It is important to note that the Court of Appeal in the
above matter clearly indicated that

"it is common practice for a creditor to preserve
his rights and avoid prescription by taking the formal step of
issuing a summmons,
despite the fact that negotiations may be
ensuing, and advi­sing the debtor that this is being done merely
to avoid prescription.
Further proceedings can then be deferred by
consent while the negotiations proceed."

It stands to reason therefore that in the present matter
the claim form should have been submitted not later than the 22nd
month after
the cause of action arose followed by summmons issued
only up to the end of the 24th month after the cause of action arose.

The defendant's counsel's submission that the delivery
of a claim form within the 2 - year period suspends the prescription
for 60
days from the date of such delivery, seems to me valid for it
is on all fours with my interpretation of section 13 (2) (a) of the
Lesotho Motor Vehicle Insurance Order 1972.

Thus after the expiry of the 60 - day period of
suspension the prescription began again to run and could only be
interrupted by service
of summmons upon the defendant.

At page 2 of the Court of Appeal decision in Putsoa
above reference was made to Vessels, Law of Contract in South
Africa 2nd Ed. paras 2804 and 2818 for in that case

/as

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as in the instant matter no rule provides that the
delivery of the demand or the delivery of a claim form interrupts
prescription.
Hence reference to the Common Law where Wessels says
in para 2804

"By our common law the running of prescription is

interrupted by an acknowledgement of debt

or by judicial interpellation

In para 2818 he says

"when we say that by our common law prescription is
interpreted by judicial interpellation, we mean that there must be a
claim
instituted before a Court of competent jurisdiction. It is not
sufficient for the creditor to send a lawyer's letter or a letter
of
demand; he must actually institute action by a valid summmons..."

The language used in SS. 13(2) and 14(2) of the Order
is simple and the words in it should be given their natural and
ordinary meaning.
See Aspeling N.O. vs Alexander 1919
AD 139 at 146 (last line) to 147.

Pillay vs New Zealand Insurance Co. Ltd. 1957(1)
SA 17 is authority for the view that

"The 'Claim for Compensation* referred to in
sub­section (2) of section 11 of Act 29 of 1942 means the
institution of proceedings
and not a letter of demand."

As stated above a letter of demand is to summons as a
claim form is to legal proceedings commenced by the summons. See
Kleynhans vs Yorkshire Insurance Co. Ltd. 1957(3) SA 544
re-affirming that

"prescription runs from date summmons (was) served
in the absence of (a) previous demand."

President Insurance Co Ltd vs Yu Kwam 1963(3)
SA 766 at 779 is to be found the proposition that

"The plain and natural meaning of the words in
section 11(2) 'shall become prescribed upon the expiration of a
period of two
years' is that the period of ex-tinctive prescription
for the claim to compensation under section 11(1) of the Motor
Vehicle Insurance
Act shall be two years."

/C/F

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C/F section 13(2) a of the Motor Insurance Order 18 of
1972.

I find it rather difficult to grasp the content of the
defendant's contention advanced in head 15 to the effect that

"A proper interpretation of SS. 13 and 14 is that
the summmons must be served within 2 years and 60 days of the date of
accident,
but not within the 60 day period after the claim was sent."

The phrase

"served within 2 years and 60 days"

is what presents me with difficulties because it appears
to be what was specifically demurred at by the Court of Appeal in
Putsoa above where in relation to the Government Contracts Act
of 1965 it had been contended by the appellant that

"when that month expired, the two year prescriptive
period started running again, and the action would not be time -
barred until,
in effect, 2 years and 1 month after the delivery of
the letter of demand."

I think the axiomatic position is, in respect of the
instant matter, that whatever the circumstances the 2 year and 60 day
period
should fall within 24 months beyond which no summmons can
validly be issued. But if issued within the 24 months than a minimum
of
60 days should be allowed to run from the date when the cause of
action arose and the insurer was notified or when the lodgment
was
made with the insurer before summons is issued and served. A
creditor who goes about this in any other-way contrary can aptly
be
described as pursuing a friar's lantern.

In CIV/APN/57/86 Mamokhethi Mokhethi vs Lesotho
National Insurance Co. (unreported) at p. 4 it was said

"Section 13(2)(a) and 14(2) make it quite clear
that prescription begins to run from the date of the accident upon
which the
claim arises. If within two years from the date of the
accident the 3rd party sends ... the claim form to the registered
company
(insurer), the prescription is suspended for a period

/of

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of 60 days from the date the claim was sent ... in other
words, the right to claim compensation from the registered company
becomes
prescribed upon the expiration of the two years. However, if
the claimant lodges the claim form with the registered company

within two years from the date of the accident,
pre­scription shall be suspended for 60 days. It is common cause
that in the
present case the applicant's claim form was sent to and
received by the respondent on the 4th December, 1985. Taking into
account
that the accident had occurred on the 7th November 1983 there
can be no doubt that the claim form was lodged after the expiration
of 2 years from the date of the accident ... the period of two years
expired on the 6th November, 1985.

Now the crux of the matter is whether this Court has the
power to condone the late filing of the claim for compensation or
not. There
is no provision in the M.V.I. Act 1972 giving the court
the power to do so.

Likewise in the instant matter it is common cause that
summmons was served after the two year period had run after the cause
of action
arose. Although the claim form was sent a day before the
completion of the two years it appears on the authority of Putsoa
above the claimant would have done diligence and preserved his rights
if he sent the claim form at the latest at the end of the 22nd
month
of the cause of action, and thus ensured that 60 days thereafter
summmons was issued for in the words of Aaron J.A.

"summmons may validly be issued only up to the end
of the 24th month after the cause of action arose."

The special plea is upheld with costs.

J U D G E.
4th December, 1989.

For Plaintiff : Mr. Mphalane For Defendant : Mr.
Molyneaux.