HIGH COURT OF LESOTHO
NATIONAL GENERAL INSURANCE CO. LTD Defendant
by the Honourable Mrs Justice A. M. Hlajoane on the 1st April, 2003.
an action for compensation arising out of an Insurance Policy by the
Defendant for the Plaintiffs vehicle which was stolen.
pleadings were closed, the Defendant raised a special plea of
parties have, in terms of Rule 32 (1) of the High Court Rules,
submitted a written statement for adjudication. The statement
signed by both parties. Rule 32 (1) reads:
"The parties to any civil action may, after institution of
Proceedings agree upon a written statement of facts in the terms
special case for the adjudication of the Court. "
made it clear that the undermentioned facts are admitted only for
purposes of adjudication of the special plea. It was specifically
reiterated that the facts are merely admitted for purposes of the
adjudication of the special plea only as Defendant is adamant
these aspects remain in dispute in respect of the merits of the
admitted facts stand as follows:
Insurance Policy was issued by Defendant to Plaintiff, a copy of
which is annexed to Plaintiffs further particulars.
12 March, 2000, Plaintiffs insured vehicle was stolen.
alleged theft of the vehicle is "the happening of an event"
as set out in Clause 14 of the General Conditions of
14 is part and parcel of the Insurance Policy.
in respect of the claim was repudiated on the 23rd January, 2001.
was instituted by Plaintiff on 30th May, 2001, more than 14 months
after the happening of the event (theft of the vehicle).
Plaintiffs claim was neither the subject of pending action (or
arbitration) on the 1lth March, 2001, nor is it a claim under
Section (11) of the Policy.
denying liability to Plaintiff's claim, the defendant relies on
Clause 14 of the General Conditions in the Policy Contract which
"In no case whatever shall the Company be liable under this
Policy after the expiration of twelve months from the happening
the event unless the claim is the subject of pending action or
arbitration or is a claim under Section 11. "
contents that Clause 14 of the general conditions on which defendant
special plea of prescription is irrelevant and inapplicable to the
present case, as it covers situations where a claimant
does not lodge
with the Insurance Company a claim for indemnity within 12 months
from the date of the happening of the event (theft
to the Plaintiff, the relevant and applicable Clause in the Policy
Contract is Clause 12 which reads:
"In the event of the company disclaiming liability in respect of
any claim and an action or suit be not commenced within six
after such disclaimer all benefits under this policy in respect of
such claim shall be forfeited. "
Defendant submitted that if Clause 14 could be found to be ambiguous,
then it had to be interpreted in a manner that would be
favourable to the Plaintiff. However, he conceded that the Clause,
Clause 14, was without doubt unambiguous and clear, and
of more than one interpretation.
being the case, on looking at the two clauses of the Insurance
Contract, Clause 12 and Clause 14, it becomes obvious that they
two distinct situations. Clause 14 would have been applicable if, and
only if the Defendant did not break the silence by
his letter of
repudiation, Mahindi v Commercial Union Insurance Co SA LTD 1997 (1)
S. A. 326 made a clear distinction between similar
provisions to our
two clauses, and the adoption of the ordinary and grammatical meaning
of the words led to no absurdity, inconsistency
history of this case show that the Defendant insured Plaintiffs
vehicle in the given amount and the commencement date of the
was the 18th May, 1999.
11th March, 2000 Plaintiff's vehicle was stolen in Bloemfontein. The
Plaintiff lodged his claim for indemnity with the Defendant
14th March, 2000. The Defendant demanded settlement on the 10th
November, 2000. The Defendant repudiated liability on the
January 2001, and the summons were filed on the 30th May, 2001.
Defendant in this case brought himself under the provisions of Clause
12 by repudiating liability, and under that clause benefits
Policy would only be forfeited after six months of disclaiming
liability by the Company. Repudiation was a pre-condition
instituting Proceedings, under Clause 12. It is obvious that the six
months from 20th January, 2001 to 30th May, 2001 had not
Clause 14 of the Policy Contract makes no mention of repudiation or
disclaiming of liability, instead Clause 14 covers
a situation where
a claim is lodged after 12 months of the happening of the event. This
clause fixes a prescription period at 12
months after the happening
of the event, subject of cause to where there is pending action or
the points which are common cause in these proceedings have said it
all. The terminology used in the Policy contract is
very clear and
not capable of more than one meaning. They would give other meanings
if interpreted out of context. For instance,
the words action, claim
or suit in the policy contract must be given their meaning as
selectively and purposefully used to give
them their distinct
meaning. The period when, under Clause 12 the Plaintiff is to lodge
his claim is distinct from the period under
Clause 14 when
prescription is supposed to start running. See a similar provision in
Joka v Commercial Union Insurance Co of S.
A. Ltd 1994(3)
S. A. at
Policy contract was annexed to the proceedings in this case thus
forming part of the record. To get the message conveyed by
Policy, the clauses have to be read sequentially and not in piece
meal. The Defendant in this case cannot be allowed to hide
clause 14 when the clause applicable is Clause 12 by reason of the
Defendant having repudiated liability. The Court finds
the Plaintiff was still within time when he so lodged his claim.
Because the Defendant had raised a special plea
on a point of law
there was no need for any replication.
special plea therefore fails and is dismissed with costs.
Plaintiff: Mr Ntlhoki
Defendant: Mr J. P. Daffue
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