HIGH COURT OF LESOTHO
NATIONAL GENERAL INSURANCE
Plaintiff : Miss Ramafole
Defendant: Mr. Grundlingh
by the Honourable Mr. Justice T. Monapathi on the 22nd day of January
has, in his personal capacity, sued Defendant for payment of an
amount of M234,789.69 plus costs of suit.
arose out of a motor vehicle accident which occurred on the 6th
1998 at or near Ha Potloane, in the Leribe district. The claim was
made in terms of Motor Vehicle Insurance Order No.6 of
amended, (MVI Order).
also common cause that the accident happened on the day mentioned on
the early evening, that the claim form was filed on
the day of the
17th June 1999 before the end of business and that summons was issued
on the 5th May 2000.
has raised a special plea which is grounded (primarily on facts which
were common cause) as follows. That the claim upon
action is based having over on or about the 6th March, 1998 (the date
of the accident). The claim form which
Plaintiff was required to
deliver to defendant in terms of section 12 of the MVI Order having
been delivered on the 17th June 1999;
the summons having been served
on the Defendant on the 5th May 2000.
Defendant pleaded that the Plaintiff's claim had been prescribed as
the summons was not served within the period of two (2)
years as from
the date upon which the claim arose and as required by the said
section 12 read with section 10 of the MVI Order.
submitted that, if regular, summons should have been served on or
before the 4th May, 2000. And that Plaintiff has not
section 10(1) of MV1 Order and should accordingly be non suited.
Wherefore as Defendant pleaded Plaintiff's claim
should be dismissed
later became obvious the parties disagreed on a perilously restricted
point for interpretation which was about computation
of days. See
what Defendant will submit (infra) referring to Kleynhans v Yorkshire
Insurance Co. Ltd 1960(2) SA 852(D), SA Mutual
Fire & General
Insurance Co Ltd v Fouche 1970(1) SA 302 (A), Mamokhethi Mokhethi v
Lesotho National Insurance Company (Pty)
Ltd CIV/APN/57/86 Contrast
section 50 of Interpretation Act No. 19 of 1977. A difference of only
one(l) day it would become indeed.
It provides a useful background,
in any event, to capture even the broader area of Counsel's
10(1) of MVI Order reads as follows:
"The right to claim compensation under this order from the
insurance shall become prescribed upon the expiry of a period of
years as from the date upon which that claim arose: provided that
prescription shall be suspended during the period of sixty
referred to in section 12 hereof."
relevant part of section 12 of the MVI Order reads as follows:
12(1) "A claim to compensation and accompanying medical report
in terms of this Order, shall -
set out in a form prescribed by regulations which shall be completed
in all its particulars;
sent by registered post or delivered by hand, at the register's head
office or local branch office of the insurer and the insurer
at the time of delivery by hand acknowledge receipt thereof and the
date of such receipt in writing.
claim in terms of this Order shall be inforceable by legal
proceedings commenced by a summons served on the insurer before
expiry of a period of sixty days as from the date on which the
claim was sent or delivered by hand, as the case may be as provided
for in section 10." (My emphasis)
did not see the significance of Miss Ramafole's argument over the
point that the Defendant acknowledged receipt of the
claim form much
later than the day it was received. It was because there was no
dispute that the form was received on the day contended
Plaintiff. In any event it was not the crux of the real dispute.
agreed that section 12(2) specially provides for the commencement of
legal proceedings by service of summons. I was referred
case (supra) "A summons which is served prematurely is not a
nullity. While the
thereon is unforceable the summons may be reserved." See
National Insurance Company (PTY) Ltd v Tsepo Sekhesa C of A
36/94 as approved by Ramodibedi J in Khuto v Lesotho National
Insurance Company Limited CIV/T/65/91.
reason why an insurer will insist on the full period of sixty (60)
days is that the period is prescribed to provide as to provide
insurer with a reasonable period within which to investigate the
claim (after filing of claim form) on its part before being
in litigation. See Santam Insurance Company Ltd v Vilakazi 1967(1) SA
at page 252 A-B.
accepted that if a claim is lodged within two years prescribed
period, set out in sections 10 and 12 of the MVI Order, prescription
is only suspended for a period of sixty days from the date of lodging
of the claim form. As was graphically shown in Mokhethi's
ACJ (as he then was), said:
"If within two years from the date of the accident the party
sends or delivers the claim form to the registered company (Insurer),
the prescription is suspended for a period of sixty (60) days from
the date the claim was sent or delivered. In other words the
claim compensation from the registered company becomes prescribed
upon expiration of two years. However if a claimant
lodges the claim
within the registered company within two years from the date of the
accident prescription shall be suspended for
sixty days (60) days."
Grundligh referred to the following cases, which I approved, on the
above point: Masilo v Lesotho National Insurance Company
and Another, CIV/T/47/86, Tauhali v Lesotho National Insurance
Company (Pty) Ltd CIV/T/47/86 Lehohla J 27th August 1997.
case (supra), Masupha v Lesotho National Insurance Company (Pty) Ltd
CIV/APN/136/97 Moeti v Lesotho National Insurance
Company (Pty) Ltd
CIV/T/618/93 and Lesotho National Insurance Company (Pty) Limited v
Sekhesa C of A (CIV) 36/94.
It has to
be shown for clarity's sake that section 10(1) and section 12 of the
MVI Order are similar to sections 13(2) and 14(2)
of the Motor
Vehicle Order No. 18 of 1972.
accepted that the overall legal background was still even more
graphically illustrated by Ramodibedi J in Khuto's case (supra)
he held as follows:
"As I read them the authorities came to the following principle
with which I am in full agreement:
section 13(2) 14(2) of the Motor Vehicle Insurance Order No.18 of
1977 prescription begins to run from the date of the accident
which the claim arises.
within two years from the date of the accident the third party sends
or delivers registered company (insurer) the prescription
suspended for a period of sixty (60) days from the date of the claim
was sent or
delivered. What this means therefore is that the right to claim
compensation from the registered company is prescribed upon
of two years.
However if the claimant lodges the claim form the registered company
(insurer) within two years from the date of the accident prescription
shall be suspended for sixty (60) days.
summons which is served prematurely is not a nullity. While the
action therein is unenforceable the summons may be reserved.
Lesotho National Insurance Company (Pty) Ltd v Tsepo Sekhesa (supra)
service of the summons and not the issue is decisive is determining
when prescription begins to run."
As I said
before the parties were at one that these were the ruling principles.
this Court endorsed the proposition that the claim in terms of the
MVI Order prescribes if summons is not served within
prescriptive period (as suspended by the sixty days) after delivery
of the claim form or within the time limits agreed
upon by the
parties has been confirmed by the Court of Appeal in the matter of
Lesotho National Insurance Company (Pty) Ltd v Ts'epo
reckoning the following statement made the practical aspects of the
principles even clearer in practice. It is that in non
cases the claim
the date of collision. Prescription will commence to run on the date
of the collision.
addition Defendant submitted that while the right to claim
compensation prescribes after the expiration of a period of two years
to claim prescribes after expiration of a period of two years from
the date on which the claim arose, the two year period is suspended
during the period of sixty (60) days mentioned in section 10
provides, in short, that no claim be enforceable by a summons served
before the expiration of a period of sixty (60) days calculated from
the date on which the claim documents were despatched or delivered
the company concerned. The two years period stops running that is, is
suspended for sixty (60) days by the delivery (by hand)
by registered mail of the claim documents to the insurer, and on the
sixty days period has expired, the unexpired portion
of the two year
prescriptive period commences to run.
came to the area in which the parties began to part ways. Defendant
submitted that the two year period is calculated in accordance
the ordinary civil method which means in effect, most importantly,
that the period commences at the beginning of the first
terminates at the beginning of the last day or stated otherwise, the
first day is included and the
is excluded. See Kleynhans case (supra) and Somdaka's case (supra).
simply means, on the example provided by the Defendant, that if a
collision occurred on 20th July 1982, the claim will become
prescribed at midnight on 19th July 1982, the claim will become
prescribed at midnight on 19th July 1994, unless of course the
statutory claim form is lodged within the period.
Counsel went on to elaborate that the calculation of sixty (60) days
period is done by the civil method and not in terms
Interpretation Act No. 19 of 1977 as contended by Plaintiff's
Counsel. According to the former the first day is included
last day is excluded as against excluding the first day and including
the last day. For his support Defendant cited SA Mutual
General Insurance Co. Ltd case (supra) per Rabie JA at page 311 H. On
the same reasoning therefore the counting of day
(delivery by hand, as the case may be) as the first day the remaining
59 days or simply being counted off the calender.
then recommence or to run on the 61st day and will continue to run
for so much of the m . two year prescriptive
period as remains
unexpired on the day when the claim form was dispatched or delivered.
I was referred to Mamokhethi's case (supra)
in this regard.
agreed that on the facts of this case if the method described in the
Interpretation Act was adopted it means that on that
summons must be regarded as having been served on the sixtieth (60th)
day. If the civil method is used on the other
hand summons must have
been served on the sixty-first (61st)day contrary to Miss Ramafole's
Ramafole adopted into the calculation the fact that the accident
happened on or about 7.30p.m. on the day of the accident.
as she contended that on the day the summons was served it must have
been on the sixtieth (60th) day which ought to
or could have expired
at 7.30 on the date that the summons was served. If the summons was
served before 4.30 then that must have
been within the sixty days
period or specifically that it was before the last three hours to
expiry which was on that day. That
argument was novel.
with the novel approach by Ms Ramafole only as far as it went. Indeed
Mr Grundlingh did not agree with the interpretation
considered that the factual calculation would have been correct, that
is the arithmetic part. But this calculation
misses the point that
every day ends at 12.00midnight and it is not a matter of 24hours
strecth but it is a matter of every day
ending at 12.00midnight this
means that after 12.00midnight it a different
comes into being. This means again that the day following the
accident was a different day. The calculation is not for
hour by hour
but for days See Wulfes vs Commercial Union Assurance Co. SA Ltd
1969(2)SA 31 (N.P.D) where the two year period would
have expired at
the latest on 14th April 1965, the purported service on the 16th was
according ineffectual to prevent the Plaintiff's
compensation being prescribed. In any event it was agreed that the
difference between the two modes of calculation was
that of a day and
not more. On any account one cannot speak of any inordinate delay or
prejudice but that is not the consideration
as decided cases show.
present state of affairs is such that there has not been any
explanation offered for that delay which could only have amounted
that of one day. It is not also one where condonation has been
applied which would have been on a different footing. One has
to bear in mind the words of Gauntlett AJA in 'M'ats'ehla Khanyapa vs
Compol 1999 - 2000 LLR 350 at 355 - 356 where the
commented about certain statutes about which:
"Urgent attention needs to be given by the Attorney General to
the constitunality of that and other time barring or a prescriptive
measures on the Lesotho Statute Book".
concluded that the Plaintiff's claim had prescribed. The claim is
dismissed with costs.
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