CIV/APN/319/2004
IN THE HIGH COURT OF LESOTHO
In the matter between:
VINCENT MOEKETSE MALEBO APPLICANT
AND
LESOTHO NATIONAL GENERAL
INSURANCE COMPANY LIMITED RESPONDENT
JUDGMENT
Delivered by the Honourable Mr. Justice G.N. Mofolo On the 18th July, 2007
This is a case in which applicant has claimed condonation of the late institution and filing of proceedings in CIV/T/315/2004, alternative
relief and costs. The notice of motion is dated 16 July, 2004 and appears to have been received by the respondent on 16 July, 2004.
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According to paragraph 5 of the applicant's founding affidavit, his business known as Tolafia Stores was, on 22 and 23 September, 1998, destroyed by fire during the political disturbances and riots that engulfed Lesotho then. The store was insured with defendant against risks of fire and riots in the sum of M850,000.00 (paragraph 6). In support of the applicant page 24 of the Record of Proceedings shows first schedule of respondent's cover as "fire schedule" under which appear "additional perils" and in bracket is indicated yes/no as applicable and it appears "riot and strike" are applicable but not "subsidence and landslip" for example. And yet on page 25 of the insurance cover aforesaid appear "General exceptions" which read:-
The policy does not cover loss of or damages to property related to or covered by:-
Civil commotion, labour disturbances, riot, strike, lockout or public disorder or any act or
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activity which is calculated or directed to bring about any of the above;
War, invasion, act of foreign enemy, hostilities or warlike operations (whether war be declared or not) or civil war;
(a) mutiny, military rising, military or usurped power, martial law or state of siege, or any other event or cause which determines the proclamation or maintenance of martial law or state of siege;
insurrection, rebellion or revolution.
Any act (whether on behalf of any organization, body or person, or group of persons) calculated or directed to overthrow or influence any State or Government, or any provincial, local or
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tribal authority with force, or by means of fear, terrorism or violence;
Any act which is calculated or directed to bring about loss or damage in order to further any political aim, objective or cause, or to bring about any social or economic change, or in protest against any State or Government, or any provincial, local or tribal authority, or for the purpose of inspiring fear in the public, or any section thereof.
Undoubtedly, to those familiar with the political disturbances and riots of 1998 aforesaid, it is common cause that, in particular, clauses (i) - (v) above cover the state of affairs that engulfed Lesotho in September, 1998. An then there is a proviso to the effect that "if the company alleges that by reason of clauses (i), (ii), (iii), (iv), (v), (vi) or (vii) of this exception, loss or damage is not covered by this policy, the burden of proving the contrary shall rest on the insured". In
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other words, if the company (as respondent does in this application) alleges loss or damage is not covered by the policy, the burden of proving that the loss or damage is covered by the policy rests on the applicant. In this court's view, there is no need to rush because the court must first decide whether there is reason to condone the late filing of proceedings in CIV/351/2004.
In his Founding Affidavit applicant has alleged after the occurrence of the riots against which the property was insured he claimed indemnity from the respondent who repudiated liability as shown in "LNI". Now, "LNI" is dated 18 November, 1998 and is a letter from the respondent to the effect:-
"in the absence of Political Riot cover, the claim for loss or damage is excluded by virtue of the provisions of General Exception
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Both Mr. Ntlhoki for the applicant and Mr. Viljoen for the respondent agree that after repudiation of his claim by the
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respondent the applicant should have immediately issued summons against the respondent and hence the present application for condonation of the late institution and filing of proceedings in CIV/T/351/2004.
I have gone through my file to determine whether there is an application for condonation of the late institution and filing of proceedings in CIV/T/351/2004 and find there is no such application by the applicant except as appearing in the Notice of Motion. Mr. Viljoen does not appear to have bothered himself with this application coming from the bar. .
Mr. Ntlhoki has attempted to justify the delay on the ground that the reason for not lodging the claim timeously was because Lesotho
government made certain promises to certain sectors of the community that it would make good the loss to those affected by the
disturbances. He says the promise was in writing and verbal to certain business sectors which suffered loss the document being
called "Conflict Needs Assessment" being a document between Lesotho government
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and World Bank. Mr. Viljoen has objected saying he hasn't got the document and is as a result not able to respond to it. Mr. Ntlhoki has said it would appear the document was erroneously not annexed to the proceedings and he wishes to hand it in. The document was allowed to be handed in informally, with Mr. Viljoen allowed to peruse it. Mr. Ntlhoki has, however, asked for postponement as the document could not be handed in immediately and Mr. Viljoen has submitted in the event he would ask that postponement be with costs notwithstanding that, in his view, the handing in of the document would not make any difference. Mr. Ntlhoki has decided as the document needn't in any event be handed in, he was not asking for postponement.
Mr. Ntlhoki has continued as government promised compensation applicant decided not to go via his insurance policy. Asked by the court whether this was not a waiver he says no because applicant was misled by government. Asked by the court whether in pursuing government overtures the respondent was from time to time brought into the picture, he
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has replied respondent was at no time asked to keep his door open. He says applicant was ensured for political loss. He says the claim should have run its course within 24 months and yet they are now out by four (4) years. Mr. Ntlhoki says there is reasonable explanation of the delay. Further, Mr. Ntlhoki has conceded that applicant was pursuing compensation with government there was no evidence and the court has to take his word for it.
Mr. Viljoen has submitted this is an extra-ordinary application requiring reasonable explanation to show that applicant did not just sit back doing nothing. Applicant in the first place was not privy to what government was intending. In any event the law in this regard demanded that a claim be lodged within 24 months for otherwise the claim prescribed if extension of time was not lodged within prescribed time frames, something which applicant, a literate businessman and moreover, a political leader and by all means sophisticated, did not do. I have understood Mr. Viljoen to say all these factors taken together, and even if he did not
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specifically say so, this court is of the view all these factors taken together militate against the court exercising its discretion in favour of the applicant particularly because there was no direct promise to applicant by government to compensate him nor indeed was there such a general undertaking to compensate businessmen the whole exercise being, most probably, in government's discretion as to who to compensate. In this court's view, the so-called government promise to compensate was no more than a red herring not to have attracted and be pursued by applicant save a contract which he had with the respondent. Account is also to be taken of the fact that Mr. Ntlhoki has conceded that applicant was pursuing compensation with government there was no evidence save Mr. Ntlhoki's word of mouth.
L.F. Boshoff Investment v Cape Town Municipality (2) 1971 (4) SA 532 (CPD) for leave to appeal is in many ways similar to the present
application for there the appellant proceeded for leave to appeal in similar fashion as the instant applicant has done. In L.F. Boshoff Investment above
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counsel applying from the bar had shown the delay had extended over a period of fifteen (15) months with no explanation being tendered on appellant's behalf for the delay and from papers no excuse being apparent from papers before court. The court had found the lengthy period of delay on facts known was unreasonable and in the absence of condonation by the court of the delay the application would not be entertained. It was said Mr. Dixon had asked the court that despite the delay to entertain the application, a request can be treated as an application for condonation and counsel had stated from the bar that respondent has suffered no prejudice by reason of the delay. It was said the statement had not been substantiated and no affidavit to which respondent could have responded was filed on applicant's behalf dealing with the alleged absence of prejudice to respondent.
I may butt in to say this is applicant's case in the instant case. The court in Boshoffs case above had found, however, that in the absence of facts upon which any deduction could
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be made one way or the other that constituted mere speculation. It was said in any event applicant had not shown an absence of prejudice to respondent. The court had also found where an applicant claims indulgence of condonation, it is for him to show that respondent
would not be adversely affected thereby to any substantial degree and that, even if he were to be affected, other considerations apply which would persuade the court to grand the indulgence sought (p.536).
In cause of his judgment the learned Van Winsen J (as he then was), indicated the court's discretion to condone a delay was a wide and flexible one its exercise depending on many factors to which the appeal court had adverted to as factors germane to a consideration of an application of a delay in acting in terms of Court Rules and Saloojee and Another v Minister of Community Development, 1965 (2) SA 135 (A.D); S. v Yusuf 1968 (2) SA 52 (A.D) at pp.53-54; Estate Woolf v Johns, 1968 (4) SA 492 (A) at p.497; and Melane v Santam Insurance loc.cit. were referred to it being said the factors were:-
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"Such as the efforts made towards compliance with the Rules, the degree of non-compliance (in this case the length of the delay), the explanation thereon, the prospects of success, and the importance of the case. Such factors are not individually decisive, but must be weighed one against another, for example a short delay and good prospects of success might compensate for a weak explanation (p. 537)."
It was said in the present case the pursuance of the application is substantially out of time and no explanation is offered therefor. It was said if prospects of success were good this factor, in the light of the dictum in Yusufs case, might nevertheless outweigh these shortcomings.
In the instant case applicant is out of time by no less than six years, prospects of success do not exist and even had condonation been zealously and formerly approached, by reason of inordinate expiry of time, it is doubtful such an application would have succeeded.
Whatever explanation may have existed, this was offered from the bar with Mr. Ntlhoki saying there was no evidence applicant was pursuing compensation with government and hence no reason appeared
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for the delay in instituting action. How, then, can it be said there was reasonable explanation for the delay?
As for prospects of success again, one of the factors material in the assessment of the discretion whether or not to grand condonation, the law appears to be that onus rests on an applicant to negate the existence of exceptions referred to above, it is this ability to negate the existence of exceptions that adds value to the existence of a good case at the trial termed by some as prospects of success had the court been fully addressed on the subject. Indeed even where the court is fully addressed on the subject, one does not see how prospects of success would be in place in the face of such an unreasonably long passage of time without convincing explanation.
I have already said there are no prospects of success at the trial. Moreover, I have not been persuaded that anything contained in judgments to which I was referred in any way improves this application. No good grounds exist for
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condoning applicant's failure to comply with the rule. Applicant's prospects of success are non-existent and if they exist are not such as to entitle him to be accorded condonation for the late institution and filing of proceedings in CIV/T/351/2004.
In the result condonation is refused and the application is dismissed with costs.
G.N.MOFOLO
JUDGE
For the Applicant : Mr. Ntlhoki
For the Respondent : Mr. Viljoen, SC
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