CIV\T\123\92
IN THE HIGH COURT OP LESOTHO
In the matter of :
ALAIN ANDREW Plaintiff
v
LESOTHO TELECOMMUNICATIONS CORPORATION Defendant
JUDGMENT
Delivered by the Hon. Mr. Justice M.L. Lehohla on the 16th day of February, 1993
The plaintiff's declaration supporting the summons wherein he sues the defendant for M355,800-00 discloses in paragraph 3 that :
3.1 Defendant has allocated plaintiff telephone number 325465 for his business
3.2 Plaintiff's business depends on the use of the telephone service (sic) which defendant is the sole provider in Lesotho.
3.3 Defendant is under a legal obligation to have all telephone lines in Lesotho operational.
In paragraph 4 the plaintiff seta out that :
4.1 During the period between 12th December 1991 and 10th February 1992 plaintiff's telephone
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line number 325465 was out of order.
4.2 Plaintiff duly informed defendant that his telephone line was not operational but despite several reminders defendant negligently
failed or neglected to repair plaintiff's telephone line.
It is for the above wrong and in respect of which the plaintiff's appeals to the defendant to have it put right that the defendant's refusal to comply has given rise to a damages claim in the amount of M355,800-00,
The defendant has excepted to the plaintiff's declaration on the ground that the claim is bad in law and does not disclose a cause of action.
The excipient defendant rests his exception on the grounds stated as follows :-
"In terms of section 50 of the Lesotho Telecommunications Corporation Act No.12 of 1979 the
Corporation shall not be liable to (sic) loss or damage which may occur in consequence -
..........................
of failure to provide or delay in providing a telecommunication service, the communication installations and plant associated
therewith or a service ancillary thereto;
of failure, interruption, suspension or restriction of a telecommunication service or
service ancillary thereto or delay of, or fault in, communication by means of a telecommunication service;
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of failure of telecommunication installations and plant, or
.........................."
The excipient accordingly prays Chat the plaintiff's claim be dismissed with costs.
It was argued for the excipient chat the plaintiff's case set out in paragraph 4 of his declaration falls four-square within provisions of section 50(1)(c) above. It was urged on the court to give ordinary meaning to the above section. It was pointed out that given its ordinary meaning this section shows that in regard to the plaintiff's particular case, the corporation shall not be liable to loss or damage which may arise in consequence of failure, interruption or suspension of a telecommunication service. Thus it was submitted that paragraph 4,1 of the plaintiff's declaration is answered by section 50(1)(b) in so far as this section grants the excipient an immunity from liability for failure to provide or delay in providing a telecommunication service, the telecommunication installations and plant associated therewith or a service ancillary thereto. In this regard the plaintiff's complaint is that his telephone line was out. of commission for a period spanning 12th December 1991 and 10th February,1992,
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It was submitted for the excipient that the plaintiff's claim set out in paragraph 4.2 of his declaration likewise falls within the immunity granted by section 50(1)(c) and not 50(1)(b) because the latter envisages failure or delay in providing a service which is in the process of being provided by means of furnishing telecommunication installations and plants associated therewith or a service ancillary thereto; while section 50(1)(c) relates to interruptions or delays occurring in respect of service already enjoyed by a subscriber.
Learned Counsel for the excipient referred the court to Lensing vs Kimberley Municipality 1976(3) SA 644 at 646 (a translation) where Zeitsman A.J., in a judgment concurred in by Van Rhyn A.J.P. said in relation to interpreting section 59 of the Provincial Notice 76 of 1963 of the Municipal area of Kimberley which is very similar to our section 50 above, said :
"The plaintiff avers in his particulars of claim that he suffered the damage, which is being claimed, as a result of the fact
that the defendant's employees had negligently cut off the supply of electricity to plaintiff's house, or had negligently omitted to restore the supply of electricity to his house. Section 59 of the regulations indemnifies the supplying authority (in this case the defendant) against liability for any loss or damage suffered due to the cessation of the supply
'from whatever cause arising and whether or not such cause he attributed to the act or omission of any servant or agent of the
supplying authority'.
At first glance it would appear as if there can be no doubt that the act or omission, on which the plaintiff relies, is covered by the said regulation. Mr.
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Steenkamp, who appeared for the plaintiff(excipient), argued that the regulation in question infringed upon a person's common law rights and chat it should therefore he restrictively construed. He refers in this regard to cases such as Dadoo Ltd and Others vs Krugersdorp Municipal Council 1920 Ad 530 at 552 and Brebner vs Seaton 1947(3) SA 629 (E.D.L) at p.640. He further argued that the purpose of section 59 was to indemnify the supplying authority against liability should the supply of electricity be cut off as a result of circumstances beyond its control, but not where its officials damage a cable negligently.
In my opinion Mr. Steenkamp'a argument in this respect cannot be accepted. The first part of section 59 indemnifies the supplying
authority against liability for damage suffered as a result of cessation or inadequacy of the supply due to circumstances beyond its control, but the latter part of the section indemnifies the supplying authority against liability for damage due to the cessation of the supply
'from whatever cause arising and whether or not such cause be attributable to the act or omission of any servant or agent of the
These words are wide and unqualified and must, in my opinion, be understood according to their ordinary meaning. The specific reference to an act or omission of an official of the supplying authority, in my opinion, makes it clear that the supplying authority
is not only protected against circumstances beyond its control but also against the negligence of its officials. My conclusion is that the act or omission on which the plaintiff relies is in fact covered by section 59 of the regulation".
Section 4(1) of the Act stipulates purposes and functions of the Corporation. Subsection (1)(a) sets out that these shall be
"to have the exclusive privilege of establishing, maintaining and working telecommunications"
while (1)(i) imposes an obligation on the Corporation
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"to perform any duty it is required to perform under this or any other law"
Further subsection (2)(c) says that
"In performing its functions under subsection (1) the Corporation shall have regard to efficiency and economy".
However in subsection (4) it is stipulated that :
"Nothing in this section shall be construed as imposing upon the Corporation, either directly or indirectly, any form of duty or liability enforceable by proceedings before any court".
It would appear that despite what seems to be absolute protection of monopolistic enterprise of the Corporation the Act has made provision for protection of the consumers in that under section 11(2) it is stated that -
"The Corporation shall be liable for compensation for injury or damage, only if such injury or damage was caused through the
negligence of its employees and the amount of compensation shall be determined by arbitration".
It seems that the above section does not envisage what is referred to by section 50. It does not relate to where there is a delay. But it seems that even if it did then determination of the compensation is by arbitration, in which regard it would be excludable to proceed otherwise.
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Clearly section 11(2) would apply in a case similar to that in Moll vs Department of Irrigation 1950(4) SA 158 where it was stated that
"where the plaintiff, an irrigator, had sued the respondent for damages suffered to his land through a servant of the respondent
having opened a communal furrow thereby causing it to overflow and flood the lands"
it was held
"that.................the Regulations..........did not confer absolute immunity on the respondents and it was liable for any
negligent act on the part of its servants".
According to Administrative Law by Wade 6th Ed. at p.167 it seems the situation obtaining in Great Britain between 1981 and 1984 relating to Telecommunications Act was similar to that obtaining in Lesotho to date for
".......,.......This was a typical state corporation to which the Secretary of State could give directions of a general character.
Three years later British Telecommunications was privatized, a new company being created under the Telecommunications Act 1984, which at the same time abolished the former corporation's monopoly and set up a licensing system, through which competitors could enter the field, under the control of the Secretary of State and Director General of Telecommunications,
The Act of 1981 gave legal immunity from the law of tort both to the corporation and to its employees in respect of faults, failures,
interruptions, delays, etc in their services or errors or' omissions in directories. This continued the immunity which the Post Office had enjoyed formerly without evident good reason. The Act of 1984 repealed the exemption, which might well be done also in the case of the postal service".
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Thus Mr. Matsau for the excipient brought to the court's attention that the immunity in Great Britain was not removed by interpretation of the relevant law by the courts but by subsequent legislation. He accordingly submitted chat the exception is good in law and ought to be upheld with costs.
Reacting to the onslaught Mr. Maqutu for the plaintiff dissociated the plaintiff's position from what is referred to in Wade's works
referred to above at pages 166 and 167.
He challenged Wade's statement that the immunity was had without good reason and submitted that it was created with good reason.
He invited the Court to read the law and find what the legislature's intention was; and submitted that what would emerge would show that this law was made with good reason. I agree with that because in making any law it would be absurd to presume that the intention was to promote evil.
He accordingly submitted that even for the good reason that the immunity was granted the exemption from the law cannot he absolute. He further submitted that because good was intended the drafting of section 50 does not give the Corporation the
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right to delay repairing telephone lines.
He relied on the Latin maxim "Nullum iniquum esc praeaumendum in jure - No iniquity is to be presumed in law". With this maxim I agree.
He passionately submitted that the Corporation is not entitled to ignore repeated reminders by the plaintiff that the telephone line was out of commission for 60 days.
He indicated that the defendant by proceeding by way of exception had denied itself the opportunity of airing its difficulties which might, in the event that it is shown they were not deliberate, result in the corporation being absolved from liability. But as it is the court is urged to regard the allegations set out in the plaintiff's declaration as accepted by the defendant; for in law the defendant is presumed to accept that it ignored the repeated requests. The purport of this submission is aptly summarized by Zietsman A.J. at p 620 that
"In my opinion it depends on the circumstances of each case........In this case in question the point has been taken by way
of exception at the stage where there is no evidence before court to indicate whether it is reasonable or unreasonable that the authority supplying the electricity should enjoy protection against liability for the negligence of its officials".
I would only add that a party taking an exception takes a risk which at times is to its advantage and at other times to its
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disadvantage depending on the circumstances of each case.
I agree Chat a section dealing with Statutory immunity has to be interpreted strictly; and that like any other section in any statute it should be interpreted remedially as envisaged by our Interpretation Act.
Mr. Maqutu's train however left the metals when he submitted that the intention in legislating the Telecommunications Act was to ensure that the Corporation in being privatised would be profit making. Clearly section 24(1) and (2) says
"As far as possible the total earnings of the Corporation shall be not more than is sufficient to meet the necessary outlays for capital expenditure out of revenue, the repayment of loans and payment of interest on loans operations maintenance replacement,
betterment, depreciation and training or other financial liability".
His further submission that privatisation adopted in Great Britain in 1984 fostered profit making indirectly supports the defendant's case that the Corporation in Lesotho is under the control of the Minister and operated by officers of the Crown and therefore as such enjoys immunity on a par with the pre-1984 Great Britain and further that it is not profit making.
Mr. Maqutu contended that the defendant omitted to specify that the plaintiff's averments were vague and embarrassing and
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thus cannot be accommodated in the remedy relied on by the defendant. But Deeley-Bernard and Another vs Thanbi and Another 1992(4) SA 404 is authority for the view that a proper way to challenge legal validity of defence raised in a plea is by way of an exception and that to do so by way of a Motion to strike out is a misconception of Rule 23(1) of the Uniform Rules of Court. I have had regard to the words of Zietaman referred to by the plaintiff that :
"If slightest negligence on the part of an official could cause serious damage and that nobody, would be prepared to supply electric power unless it were protected against all claims for damages that were caused by electric power. In such a case the court could hardly find that a regulation affording such protection is so unreasonable that it could not be adopted and enforced".
It seems to me that the words of Zietsman A.J. referred to earlier in this Judgment provide an answer to the problem at hand.
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The exception is upheld with costs-
JUDGE
For Plaintiff : Mr. Maqutu
For Defedent : Mr. Matsau
