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was later rescinded.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is that the judgment was indeed rescinded.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 The application was withdrawn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