CIV/APN/294/2001
IN THE HIGH COURT OF LESOTHO
In the matter between:
FOTO MALEKE Applicant
AND
LESOTHO NATIONAL GENERAL
INSURANCE COMPANY LIMITED First Respondent
KAHLOLO MARITI second Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice T Monapathi On the 31st day of August 2004
This application which was filed before the Court on the 6th August 2001, is for an order condoning the Applicant's failure to comply with section 10(1) of the Motor Vehicle Insurance Order 26 of 1989 (the Insurance Order), as amended. It is opposed.
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The question is whether there is a provision in the provision in Insurance Order which allows for extension of prescription period of two years. Applicant has acknowledge that summons was served belatedly. Section 10(2) of the Act further provides that "No
other law relating to prescription shall apply to this order."
Before coming to the events of this application it has to be stated that in the far background is the aspect that the matter was first instituted before the learned magistrate of Maseru on the 13th October 1999 under case number CC 949/99.
It is recorded that the above case resulted in a judgment by default which was later rescinded. In those proceedings there was talk of an exception or some kind of an objection that was filed but was ignored by the Plaintiff when he secured a judgment. What is important to me is that the judgment was indeed rescinded.
The Plaintiffs claim was later amended on the 28th May 2001. This was followed by intention to defend and a request by Defendant to Plaintiff to file further particulars. These were furnished. Apparently this was after
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an exception dated the 15th November 1999 to the effect that the summons and particulars of claim did not disclose a cause of action in that the Plaintiff had not disclosed any basis in law or statute upon which Defendant could be held to be liable to Plaintiff.
As sometimes happens after the filing of summons, an application was later filed in the magistrate's Court on the 26th July 2001 for condonation the late filing of summons. The application was withdrawn on the 6th August 2001. We are now faced with a situation whereby another application for condonation was made and is now to the High Court. Neither Counsel was not forthright in confirming to say whether or not the claim before the magistrate was still alive and pending. There was no doubt in my mind that an absurd and anomalous state of affairs had resulted or was developing. See paragraph 10 of the founding affidavit. I now come back to the application before this Court.
It is common cause that the cause of action arose on the 13th November 1996, being the date of the accident which caused Plaintiff to suffer severe injuries to his person and resultant damages and expenses. The prescribed forms in terms of the Insurance Order was received by the
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insurer on the 8th August 1997. Applicant failed to serve summons timeousely upon First Respondent. If done right, summons should have been served on or before the 11th January 1999 but was only served on 2nd November 1999.
For the case that the Plaintiffs claim had prescribed and that no extension could be granted at all I was referred to the said section 10(1) and 10 (2) of the Insurance Order and the former section 13(2) of the Motor Vehicle Insurance Order No 18 of 1972 together with the relevant section 14(1) and 14(2) of the said order I will come to my conclusion on the issue raised above later but beg now to digress to another aspect of the history of this application.
Her Ladyship Gun J was on the 14th August 2004 called to make a ruling in favour of the Applicant on an application for re-instatement of an application which had lapsed. This based on alleged failure by Applicants to appear on the appointed date of hearing. That decision had nothing to do with delay in prosecuting the claim except that Guni J does comment about such delay. I disagreed with Mr Khauoe that Guni J's remark that: "To throw out his claim on technicality seems unfair" meant or referred the
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application for condonation of application for late filing of summons. If that was so Mr Khauoe would have wisely pleaded res judicata with utmost haste and without any amount of urging. I would therefore disregard Guni J's ruling to the extent that it did not decide the real issue of late filing of summons. I close my remarks on this note on this aspect of the history.
Another issue was raised by Mr Khauoe. I would briefly reply to that submission by Mr Khauoe that section 10(2) was unconstitutional
having been declared to be so by Court of Appeal in Lesotho National Insurance Company Ltd v Maseithati Nkuebe C of A (CIV) 18/2003 I would say that the section was in fact declared to be unconstitutional only to the extent that unlike the common law it did not extent its protection to other categories of disabled persons such as minors. There were certainly no disabled persons in the
category of the party who cried for relief in that matter as I concluded. With respect I agreed with Mr. Grundligh To the extent
that the argument was not persisted in, I need not develop it further than I have done.
I gathered that Mr Khauoe could only, as a last resort rely on the submission that the delay which was caused by previous Counsel of the
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Applicant did not amount to gross negligence and since the default to do the necessary compliance could not be attributed to the Applicant himself this Court ought to condone as prayed. The following are the facts on the circumstances of the aspect of the said delay. They do not present a nice story.
Applicant originally engaged the Legal Aid Counsel to assist in Applicant's claim for damages. The Legal Aid Counsel in turn engaged the service of another attorney to lodge the claim with the First Respondent. The last mentioned attorney, who happened to have been one Mr Mahlakeng, similarly did not file the claim as he should have done. Applicant attended on several occasions on the said attorney to no avail.
Applicant then decided to approach the Lesotho Law Society to intervene between him and his attorneys of record at that time. This resulted in the file being released to Applicant's present attorney of record K T Khauoe and Co. They then became the prosecutors of the claim whose history has been recited until the matter of the application was set down before Guni J. Then it lapsed for lack of prosecution.
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Then followed this application for re-instatement which Gun J allowed. So that Guni J merely endorsed that there was delay as by the way or in obiter because she had been called to decide solely on whether there were good reasons for re-instatement of the application. She found there were such good reasons. But the fact of delay was proved beyond a reasonable doubt. It could even be that the fault lay at the door of the Applicant's previous attorneys who were extremely negligent.
Mr Khauoe submitted that since the Plaintiffs attorneys were negligent by reason of their delay "this should not debar the Applicant where there is good explanation". This is so, being another submission, where no fault could be attributed to the Applicant himself. In that case the Court should condone. For the latter submission Counsel cited Grant v Plumbers (Pty) Ltd 1949(2) SA 470 at 474 which was concerned with the question of presence of or effect of "just cause" in applications to set aside a default judgment where failure had been " entirely due to the negligence of appellant's attorney".
For the first submission (good explanation), Counsel cited Regal v African Superstate (Pty) Ltd 1962(3) SA 18 at 23 which was concerned
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with application for late noting of appeal. Together with the above submission was its extension that absence of gross negligence (which was alleged herein) has been found to be an essential criterion or absolute prerequisite to granting of condonation or such
discretionary relief. Indeed all these essentials are a basis for discretionary relief and in proper cases where such remedy is
available. It is in those cases where the statute......" "differentiates between excusable and inexcusable delays."
See Lesotho National General Insurance v Nkuebe (supra) at page 19 para 28. Mr Grundlgh submitted that the present was not such a case. I agree without reluctance and for the following further reasons.
I observed that, and it seemed to be common cause that the Court was not called to interpret any provision as to when prescription begins nor whether there was interruption of prescription by service of s summons. See Union Government v Williness 1927 OD 14 at 17 and Putsoa v Attorney General C of A (CIV) No 1/87. Nor was this Court called to decide whether or not commencement of legal proceedings is by issuing or serving of summons. Of course there is a plethora of cases which answer the question by saying that section 12(2) of the Insurance Order 1989 as
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amended provides that commencement of legal proceedings commences on service of summons.
The short answer to the question whether the Court can exercise a discretion where there is an explanation and where negligence is not caused
by Applicant but by negligence of the Applicant's attorneys is to be further found in the decisions of Lesotho National Insurance Co (Pty) Ltd v Sekhesa C of A (CIV) 36/94. and in Mamokhethi Mokhethi v Lesotho National Insurance Co. CIV/APN/57/86 in which Kheola CJ was faced with matters which were similar to the present one. After referring to a provision in the Motor Vehicle Insurance Order No. 18 of 1972 where a provision similar to the section 10 of the Insurance Order 1989 was being considered, his Lordship said at page 5:
"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 Motor Vehicle Insurance Act 1972 giving the Court the power to do so. The function of the Court is to interpret the law and not to legislate. Where the intention of the legislature is clear from the ordinary and literal meaning of the words used in the statute the Court is bound to apply it as such."
And the Court concluded on page:
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"As the Lesotho Motor Vehicle Insurance Order 1972 has no such provision this Court cannot give any of a prescribed claim because that would amount to overruling an Act of Parliament which clearly sets out the period within which a claim must be brought."
The question has again arisen before the Court in Pius Teboho Ntja Masupha v Lesotho National Insurance Co Ltd CIV/APN/136/97
before Peete J. After considering the circumstances Peete J said as follows, on page 5, 6 and 9 of the judgment:
"5 In my view this Court has no power either under the High Court Act, No.5, of 1978, or under common law to condone non-compliance with an Act of Parliament; it however has power to condone noncompliance with its own Rules - see High Court Rule 59. It reads -Notwithstanding anything contained in these Rules, the Court shall always have discretion, if it considers it to be in the interest of justice to condone any proceedings in which the provisions of these Rules are not followed." "The Court, in other words, cannot resuscitate a right which ex lege has prescribed and being extinguished."
And further:
"9 In the circumstances of this case, I hold that this Court has no power or discretion under the Motor Vehicle Insurance Act of 1972 to condone non-compliance with the provisions of Section 10 of the said Act".
The short answer to Mr Khauoe's submission is that the delay caused by the negligence of the attorneys is not excusable against the background of the provisions of section 10 of the Motor Vehicle Insurance Order 1989.
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The application therefore fails, in the circumstances, with costs to the First Respondent.
T Monapathi
Judge
31st August 2004