HIGH COURT OF LESOTHO
LEMPENYANE MASOKELA PLAINTIFF
R.L.D.F 1st RESPONDENT
GENERAL 2nd RESPONDENT
by the Honourable Mr. Justice T. Nomngcongo on the 16th day of
matter started off in the magistrate's court in the early nineties
following applicant's dismissal by 1st respondent. The applicant
sought inter alia to have the dismissal declared null and void.
Realizing that it was not competent for that court to issue
orders, the applicant withdrew the case on the 3rd July
1992. At this stage the application was timeous in terms of section 6
the Government Proceedings and Contracts Act N0.4 of 1965. It was
opposed by the respondents.
pursuing relief applicant re-launched the case in the High Court
under CIV/APN/301/92 on 21st August 1992 by which time
the claim had
prescribed by nearly eight months reckoning from the 31st of January
1990. The matter was opposed and a notice to
that effect was filed on
the 7th September 1992 and opposing affidavits filed on the 29th
September. Applicant filed his replying
affidavit on the 8th October
and pleadings were thus closed. The matter was argued on the 21st
April 1993 and judgment was reserved
by his Lordship Molai J. to a
date to be announced by the Registrar. It is to be noted here that up
to that stage although the
claim had already prescribed as aforesaid
the defence had not been raised by the respondents.
as it may, it is not known whether the judgment was written or not or
whether the Registrar simply failed to announce the
date of judgment.
What we do know however is that five years on judgment had not been
delivered when the High Court was torched
by arsonists in September
1998 and the whole file apparently went up in flames in the ensuing
fire. The parties then approached
my brother Molai J. for directions.
He directed that the matter be heard de novo before any Judge. Before
then the matter had been
placed before me and I had had doubts as to
whether it was proper for me, rather than Molai J. to deal with it.
It would appear
then that Molai J. entertained no such doubts and
gave the order that he did. I will proceed, without
anything in that regard, on the undisputed basis that I am properly
seized with the matter.
Molai J. having ordered as he had done the applicant had the original
papers (copies thereof I presume) as had been placed
Lordship filed and the case was reinstated as such. It was at this
stage that the respondent raised a point of law in
terms of Rule 8
(10) (c) presumably. The points raised were as follows :
was allegedly dismissed on the 31st January 1990.
present application challenging the dismissal was instituted on or
about 21st August 1992.
In terms of the Government Proceedings and Contracts Act 1965,
proceedings against the Government have to be instituted within
period of two years from the date of the cause of action or other
present proceedings were instituted after a period of two years from
the date the cause of action accrued and are therefore
with this problem the applicant then approached court for an order in
the following terms:
applicant's late filing of his main application.
applicant the extension of time beyond the statutory two years
period. 3. Costs of suit in the event of opposition.
for the applicant then filed in support thereof an affidavit in
substantially the same term as the brief outline of the
this case, as I have given above. He says on those grounds the
respondents are either estopped or alternatively have
rights to raise prescription in their defence.
respondents indicated that they were opposing the application and
filed an answering affidavit of Mokhothatso Ts'ele. It is
effect that the claim is prescribed and that in law they are entitled
to raise the point now even though they did not raise
it then. He is
in effect saying the fact that the proceedings are starting de novo
make the matter to borrow his words "for
all intends and
purposes a fresh one." I was not referred to any authority for
so wide a proposition. For my part I have grave
doubts about its
validity I am rather inclined to the view expressed by the applicant
in his replying affidavit that, that would
be a contradiction in
terms for as he put it - "a matter is heard de novo precisely
because it was once heard". (para.
11 of the replying
of court do not lay down any guidelines where matters are ordered to
start de novo. I do not myself intend to propose
any without the
benefit of argument and the in absence of literary material at my
ready disposal but I cannot accept that, all
that has gone on in the
previous proceedings should be discarded as if it never existed. In
practice this is really never so as
it is not unusual for instance to
order that the matter start de novo on the same papers. I therefore
reject the contention that
I should not consider what happened before
the matter was ordered to start de novo.
happened is simply that when this application was argued to finality
on the 21st April 1993, the cause of action had prescribed.
respondents had not raised any objection on that ground. But for the
delay in delivering judgment, and the subsequent destruction
file, the respondents were content with their pleadings minus the
special plea that they are now seeking to raise. These
are the facts
alleged by the applicant and not disputed by the respondents. Their
contention therefore that applicant has not placed
any facts which
assist the court in determining whether there was a waiver of the
right to plead prescription, has no merit.
determining whether a party has waived his right it was held as
follows in Mutual Life Insurance Co. of New York v Ingle 1910
at 550 per Innes CJ.
" After all, the waiver is a renunciation of a right. When the
intention to renounce is expressly communicated to the person
affected he is entitled to act upon it, and the right is gone. When
the renunciation, though not communicated, is evidenced by
inconsistent with the enforcement of the right, or clearly showing an
intention to surrender it, then also the intention
may be acted upon,
and the right perishes".
to be applied in determining the waiver is an objective one. It was
thus held in Multilateral Motor Vehicle Accident Fund
1995 (1) 23 at 28 I per Van Deventer J:
"Lastly, an objective test is to be applied when the Court is
called upon to decide whether waiver has been established in
basis of the conduct of the respondents outlined above I would
conclude that a reasonable man would take it that they had
their right to plead prescription for with full knowledge of their
right they proceeded to finality without invoking it.
rely on the fortuitous circumstance that while judgment was awaited
the case file was destroyed.
respondents further argue that the Government Proceedings and
Contracts Act of 1965 makes no provision for the extension of
While that is true, it is equally true that, if a party either
expressly or by conduct waives the right to invoke
that right perishes notwithstanding that such right is derived from a
statute couched in peremptory terms.
was held in the Multilateral Motor Vehicle Accidents Fund v
" Statutory provisions such as those of the Act and regulations
pertaining to prescription may be waived even if such provisions
be said to be peremptory".
therefore dismiss the argument that prescription under the Government
Proceedings and Contracts Act of 1965 cannot be waived.
the real issue between the parties at this stage is whether the
special plea of prescription is available to the respondents.
reasons set out above I hold that it is not. The respondents have
waived it by conduct. In order therefore to satisfy the
sought by the applicant it is necessary to make an order in the
special plea of prescription is dismissed with costs.
application to proceed in all other respects as ordered by Molai J.
and within the time limits set out in the Rules, commencing from the
date of this judgment.
Applicant : Mr T. Fosa
Respondents : Mr T.S. Putsoane
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