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CIV/T/106/92

IN THE
HIGH COURT OF LESOTHO

In the
Matter of:

MAAMA
SEEISO Plaintiff

and

COMMISSIONER
OF POLICE 1st Respondent

ATTORNEY
GENERAL 2nd Respondent

RULING ON
SPECIAL PLEA

Delivered
by the Hon. Mr. Justice W.C.M. Maqutu, Acting Judge on the 10th
December. 1993,

On the
5th March, 1992 Plaintiff filed of record an action against the
defendants in which he claimed:-

1. The
   return of his horses or

   
   

2. Payment
   of the sum of M18,000.00

   
   

3. Payment
   of the sum of M3,000.00

   
   

damages

4. Interest
   thereon at the rate of

   
   

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20% per annum a temporae morae to date of payment.

5. Costs
   of suit.

   
   

On the
17th March, 1992 the defendants filed a Special Plea praying for the
dismissal of Plaintiff claim on the grounds that it
had been brought
four years after the cause of action arose. Defendants relied on
Section 60 of the Police Order No. 26 of 1971
(as amended) in terms
of this, no actions may be brought against the police after six
months unless the said period is extended
on good cause shown.
Finally the defendants relied on Section 6 of the Government
Proceedings and Contracts Act of 1965 which provides
that no legal
proceedings may be brought against Government after two years from
the time the cause of action accrued or for whatever
reason. If the
horses had not been forfeited then at any time their owner could
claim them. The defendants contended that nevertheless
their owner
was not entitled to claim them from the police through court
proceedings because after two years from the date of seizure.
The
owner was time barred from bringing an action.

The court
had difficulty with the defendants' interpretation of this type of
prescription and its

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application
to cases such as this one. Does it mean suspected thieves whose
property was seized four years ago and against whom
criminal
proceedings have not yet been brought cannot sue Government for the
return of their property, merely because they have
not yet been
charged of theft? Was that the intention of the legislature? Should
the doors of the courts be closed to litigants
in circumstances such
as these?

Although
both Plaintiff and Defendant agreed that the police seized
Plaintiff's horses because they were involved in the investigation
of
suspected crime, Plaintiff's summons did not say so. Plaintiff and
Defendants agreed during argument that the seizure of the
animals was
lawful in 1967, the time the seizure occurred. Yet Plaintiff's
Declaration alleged the police had in June 1967 "wrongfully
and
unlawfully dispossessed Plaintiff of his two race horses".
Plaintiff urged the court to ignore what is in the declaration
while
defendants said the court should dismiss plaintiff's claim because of
it.

Boshoff
J. in Britz v. Coetzee 1967 (3) S.A. 570 at 571 AC said:-

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"In suitable cases legitimate inferences can be drawn as to the
meaning of the particulars and by implication, the necessary

averments can be supplied ... the court should .... not push that
benevolence to the length of upholding a summons, which as it
stands
discloses no cause of action, by altering its language, by reading
into it what is not there, ignoring what is, and thus
making for the
Plaintiff a cause of action which he has not himself put up."

When
police seize property in the course of their duties, whether they do
so legally or not, they do not normally do so to deprive
the owner of
his rights of property permanently. Such an inference cannot be drawn
precisely because they are the arm of the law.
They normally put the
matter before court eventually. Even if they were mistaken that does
not mean a right of action automatically
accrues against them if they
acted in good faith. It follows, therefore, that a right of action
did not automatically accrue against
the police in June, 1987 when
they wrongfully and unlawfully dispossessed plaintiff of his two
horses.

Unfortunately
plaintiff did not in his Declaration allege when it came to his
knowledge that the police decided and would not return
his horses to
him. In the court's view, if the police still have the horses in
their possession they are obliged to return them
to plaintiff. The
defendants do not

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allege
the police no more have the horses in their possession.

It is
trite law that where a statute limits the rights of a subject, it
must be strictly and restrictively interpreted. Vide S.
Malebanye vs
Goliath 1974 - 75 LLR 275 at pages 280 - 281. Cotran C.J. in that
case concluded:-

"There is a presumption against the legislature intending an
injustice .... if ... Parliament intended to foster what would
be a
manifest and glaring injustice ... it should not be beyond the genius
of their legal draftsmen to put it into the necessary
language to
achieve the object."

It is
precisely for this reason that Section 15 of the Interpretation Act
of 1977 provides that "every enactment must be deemed
remedial
and shall be given such fair large and liberal construction and
interpretation as best ensures the attainment of its objects."

It seems to me it would not best ensure the object of the Government
Proceedings and Contract Act of 1965 to use the Act as a means
to
despoil members of the public of property which the police are bound
to take as exhibits rightly or wrongly in the course of
their
investigations of crime.

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In
England there has been a series of Limitation Acts between 1939 and
1980. In Jacob & Ors. The Supreme Court Practice (1980
Edition)
at pages 1374 to 1383 it will be observed that (for prescription to
run against plaintiff) not only 1s the date of accrual
of the cause
of action necessary but the date that plaintiff came to know of such
accrual as well. The learned authors at paragraph
4522A commenting on
some of the provisions of the Limitation Act 1980 states:

"It has introduced some kind of order in the place of existing
confusion, some sort of simplicity in place of former complexity
and
a great increase of fairness and justice in place of the prevailing
technicality and arbitrariness."

In
Lesotho there is no case - law or precedent of the kind the English
had to bind the court to "technicality and arbitrariness,"

Counsel
for Plaintiff referred me to Marais v. Commercial Union Assurance Co
of S.A. Ltd 1977 (2) S.A. 269 this case reinforces
the courts strict
interpretation of prescription where the enactment does not expressly
abolish Common Law remedies.

In that
case the victim of a motor traffic accident had been in a coma for 10
days. The court held

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prescription
could not run against him while in compos mentis. Except for the
strictness with which laws that limit the rights of
an individual are
interpreted, the case is not in point.

Plaintiff
has framed paragraph 5 of his Declaration as follows:-

"In or about June 1987 in the Plaintiff's absence, one Nyapholi
a policeman of Roma Police Station acting on the instructions
of the
Mafeteng Police and within the scope and function of his duties as a
servant of the Lesotho Government under the Commissioner
of Police,
wrongly and unlawfully dispossessed the Plaintiff of his two race
horses namely a brown horse with white legs and the
second brown red
horse with white legs valued at M8.000.00 and M10,000.00
respectively".

The
defendants contention was that the police seized the horses in June,
1987 believing they were connected with some foul play
such as theft
and the Tike, Four years having elapsed, plaintiff's action had
hopelessly prescribed.

The
difficulty that the defendants faced was answering the question
whether or not the two horses had been forfeited to the Crown
merely
because the two were seized by the police during an investigation of

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an
alleged crime.

Although
this is not a case of acquisitive prescription, it remains true that
the mental element is important. In this case there
is no suggestion
that the police seized plaintiff's horses with the intention of
depriving the owner of them permanently. The cause
of action must
have, therefore, accrued when they failed to take further action or
return plaintiff's horses. The date of this,
is uncertain or has not
been disclosed by the plaintiff. This failure on the part of
plaintiff (though deplorable) cannot in the
court view bar his action
because prescription is interposed by way of Special Plea.

It is
trite law that the defence prescription should be raised by way of
special Plea. I. Isaacs in Becks Theory and Principles
of Pleadings
in Civil Actions 5th Edition paragraph 70 at page 154 gives the
reason and distinguishes between Exceptions and Special
Pleas as
follows:-

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"The
test of a valid exception is that the truth of the pleading excepted
to is assumed and no fresh matter of any sort is
introduced. Pleas in
bar, dilatory pleas and pleas in abatement differ from exceptions
precisely in this, that they do always introduce
fresh matter which
requires to be proved by evidence. ... A Special Plea whether in
abatement, in bar or merely dilatory, may differ
toto caelo from an
exception. ... an exception may never, (while these special pleas
always do) introduce fresh matter into pleadings.
It is for precisely
this reason that special pleas are susceptible of a reply while as
has been shown no reply is possible to an
exception."

Defendant
had a right and ought to have brought clear evidence which they
probably had to show that plaintiff had (through delay)
permanently
Tost the right to sue defendants for taking plaintiff's horse. As (on
the face of the papers defendants still have
the horses) returning
them would have been difficult. But assuming the horses had died or
been lost and plaintiff had known of
these facts three years ago,
defendants could legitimately bring the evidence in their possession
to show that plaintiff's had
through inaction lost his title to sue.
The limitations to actions imposed by Section 60 of the Police Order
of 1971 and Section
6 of the Government Proceedings and contracts Act
of 1965 could on proof of delay been able abate plaintiff's right to
bring an
action. It

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would
have helped things if plaintiff had availed himself of the right of
reply.

Prescription
is a peremptory defence in as much as it precludes present and future
litigation if it is upheld and thereby renders
the claim permanently
unenforceable. See Reuben v Meyer 1957 (4) S.A. 57 at page 58F, The
onus is on the defendants to show that
the claim has prescribed and
has according to modern practice to be raised by way of special plea
not exception. Vide Isaac Becks
Theory and Principles of Pleading in
Civil Actions (supra) at paragraph 77. Because of its far - reaching
consequences courts are
not often disposed to shut the door to
litigants because of prescription unless they are fully satisfied
that they have to.

Plaintiff's
Declaration leaves so much to be desired that the court could with
some justification quash the plaintiff's declaration
on the grounds
that it is improperly framed. The court has its discretion decided
that since upholding prescription would render
the claim permanently
unenforceable that would not be just in the special circumstances of
the case. In reaching this decision.
I am not unmindful of the

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words of
M.T. Steyn A.J. in Viljoen v. Federated Trust Ltd 1971 (1) S.A. 750
at 750 BC where the learned judge says the following:

"On the other hand the court will not ignore the interests of
the excipient and will not allow mere inexperience in matters
of
pleading to excuse serious non-compliance with the requirements of
the Rules of Court which, are after all, based on notions
of justice
and fair play to both sides in litigation."

These
words were used in respect of an exception where the court and the
litigants are confined to the pleading against which an
exception is
being made. If the Summons are vague and embarrassing or they
disclose no cause of action, the court can quash then,
in which event
plaintiff (after remedying the defects) is free to bring the action
afresh. In the case of the Special Plea of prescription,
the court
must have definite evidence of prescription and the other side is
entitled to bring evidence in rebuttal. Here lies the
difference
between exceptions and Special pleas. In the Special Pleas of res
judicata and prescription which bar plaintiff permanently
from ever
bringing that particular type of action for good, conclusive evidence
is required as a matter of law.

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In Reuben
v. Meyer (supra) the boot was on the other foot from this case. There
plaintiff was resisting defendant's right to amend
his plea on the
date of. trial by adding the defence of prescription. Plaintiff
vigorously argued that defendant had waived this
defence. Murray C.J
nevertheless allowed the amendment because:

"The modern tendency of courts administering Roman Dutch Law has
been to depart from the formalism of earlier days and to
afford
greater latitude in regard to all questions in the controversy
between them."

Pleadings
and rules of procedure are meant to aid the courts to have grievances
properly ventilated in the dispensation of justice
not to frustrate
them.

Plaintiff
from the bar applied for leave to amend his summons. Defendants
opposed this application. Pleadings can be amended at
any stage
unless there is prejudice to the other side. In this case no such
prejudice has been shown.

In my
view the ends of justice would be better served by the following
order.

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1. Defendants
   Special Plea is dismissed.

   
   

2. Plaintiff
   is granted leave to amend his Declaration.

   
   

3. Each
   party is directed to pay its own costs,

   
   

It is so
ordered.

W.C.M.
MAQUTU

ACTING
JUDGE.

10th
December, 1993,

For
Plaintiff : Mr. B. Tsotsi

For
Defendant : Mr. Mohapi.