C. of A.
(CIV) No.25 of 1988

IN THE
LESOTHO COURT OF APPEAL

In the
matter between:-

JOSEPH
MOKETE KOLANE Appellant

and

ATTORNEY
GENERAL Respondent

HELD AT
MASERU

Coram:

AARON,
J.A.

PLEWMAN,
J.A.

ACKERMANN,
J.A.

JUDGMENT

Plewman,
J.A.

This
issue in this appeal is whether the Appellant's action brought in
terms of a summons served on the 23 March, 1988 has prescribed
by
reason of the provisions of Section 6 of the Gover-ment Proceedings
and Contract Act No.4 of 1965. The Appellant's causes of
action are
formulated in the declaration filed in the

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following
terms:

"On or about February 1981 some officer (whose full particulars
are to the Plaintiff unknown) within the Ministry of Transport
and
Telecommunications acting within the scope and during the course of
his employment with Lesotho Government as such wrongfully
maliciously
set the law in motion without any reasonable and probable cause, by
swearing before some member of the Maseru C.I.D.
(whose full
particulars are to the Plaintiff unknown) at Maseru a false charge of
theft of the sum of M15,777,000 against the Plaintiff
and instigating
and procuring his arrest and imprisonment."

The
causes of action thus framed are thus the wrongs both commonly
characterised as malicious criminal proceedings. One requirement
for
a successful action under this head is the fact that the proceedings
must have terminated in the plaintiff's favour and no
action will lie
until the criminal proceedings have terminated or a decision has been
made by the Attorney General not to prosecute.
The question is
carefully examined in the judgment of Eksteen J. in the case of
Thompson and another v. Minister of Police and
another 1971 (1) S.A.
371 at 375 where the earlier authorities are reviewed. In the
Thompson case it was held that no cause of
action arises until the
prosecution has been determined.

In the
present case the special plea filed was framed on the basis that the
cause of action arose "in or about February 1931"
-that is,
the date upon which the allegedly false charge was laid. At

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the
hearing the matter was argued on the terms of the Special Plea. No
evidence was led and counsel for the Respondent argued the
matter in
effect as if it were an exception, relying on the declaration for the
contention that the cause of action arose on that
date. The learned
Judge upheld the Special Plea - his judgment is based on an
acceptance of the fact that this was the date upon
which the cause of
action arose.

It
follows from what has been said that this conclusion is incorrect. On
the pleat-ings (perhaps not a model of their kind) it would
have been
open to Appellant to tender evidence to prove that the Attorney
General had decided to withdraw the charge, on some date
which would
have left the Appellant free to proceed with his claim. I pause only
to observe that it is not beyond the bounds of
possibility that in
fact no finality has yet been reached - in which event it may be that
the summons is premature. It is also
possible that it may have
prescribed on the bass of different facts.

However
these matters were not canvassed in evidence, and can be left to
future possible hearing.

The
result is the decision of the Court a quo on the only issue before
this Court, namely the validity of the Special Plea, cannot
stand.
The appeal is therefore allowed and the Appellant is entitled to the
costs of appeal. The order of the Court a quo is altered
to read
"Special Plea dismissed with costs."

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Signed:
.................

C.
PLEWMAN

Judge of
Appeal

I agree

Signed:
.......................

S. AARON

Judge of
Appeal

I agree

Signed:
.......................

L.W.H.
ACKERMANN

Judge of
Appeal

Delivered
at Maseru this 26th day of January, 1990.

For the
Appellant - Mr. Pheko

For the
Respondent - Mr. Lenono.