HIGH COURT OP LESOTHO
matter of :
TELECOMMUNICATIONS CORPORATION Defendant
by the Hon. Mr. Justice M.L. Lehohla on the 16th day of February,
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
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.
paragraph 4 the plaintiff seta out that :
4.1 During the period between 12th December 1991 and 10th February
1992 plaintiff's telephone
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
comply has given rise to a damages claim in the amount of
defendant has excepted to the plaintiff's declaration on the ground
that the claim is bad in law and does not disclose a cause
excipient defendant rests his exception on the grounds stated as
"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 -
failure to provide or delay in providing a telecommunication
service, the communication installations and plant associated
therewith or a service ancillary thereto;
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;
failure of telecommunication installations and plant, or
excipient accordingly prays Chat the plaintiff's claim be dismissed
argued for the excipient chat the plaintiff's case set out in
paragraph 4 of his declaration falls four-square within provisions
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
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
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
submitted for the excipient that the plaintiff's claim set out in
paragraph 4.2 of his declaration likewise falls within
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)
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
restore the supply of electricity to his house. Section 59 of the
regulations indemnifies the supplying authority (in this case
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
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
said regulation. Mr.
Steenkamp, who appeared for the plaintiff(excipient), argued that the
regulation in question infringed upon a person's common law
and chat it should therefore he restrictively construed. He refers in
this regard to cases such as Dadoo Ltd and Others
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
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
control, but the latter part of the section indemnifies the supplying
authority against liability for damage due to the cessation
'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
the act or omission on which the plaintiff relies is in fact covered
by section 59 of the regulation".
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"
(1)(i) imposes an obligation on the Corporation
"to perform any duty it is required to perform under this or any
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
liability enforceable by proceedings before any court".
appear that despite what seems to be absolute protection of
monopolistic enterprise of the Corporation the Act has made
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".
that the above section does not envisage what is referred to by
section 50. It does not relate to where there is a delay.
seems that even if it did then determination of the compensation is
by arbitration, in which regard it would be excludable
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
"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"
"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".
to Administrative Law by Wade 6th Ed. at p.167 it seems the situation
obtaining in Great Britain between 1981 and 1984
Telecommunications Act was similar to that obtaining in Lesotho to
".......,.......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,
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
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
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".
Matsau for the excipient brought to the court's attention that the
immunity in Great Britain was not removed by interpretation
relevant law by the courts but by subsequent legislation. He
accordingly submitted chat the exception is good in law and
be upheld with costs.
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.
challenged Wade's statement that the immunity was had without good
reason and submitted that it was created with good reason.
invited the Court to read the law and find what the legislature's
intention was; and submitted that what would emerge would show
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
to promote evil.
accordingly submitted that even for the good reason that the immunity
was granted the exemption from the law cannot he absolute.
submitted that because good was intended the drafting of section 50
does not give the Corporation the
delay repairing telephone lines.
on the Latin maxim "Nullum iniquum esc praeaumendum in jure - No
iniquity is to be presumed in law". With this
maxim I agree.
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.
indicated that the defendant by proceeding by way of exception had
denied itself the opportunity of airing its difficulties which
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
supplying the electricity should enjoy protection against liability
for the negligence of its officials".
only add that a party taking an exception takes a risk which at times
is to its advantage and at other times to its
depending on the circumstances of each case.
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.
Maqutu's train however left the metals when he submitted that the
intention in legislating the Telecommunications Act was to
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
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".
further submission that privatisation adopted in Great Britain in
1984 fostered profit making indirectly supports the defendant's
that the Corporation in Lesotho is under the control of the Minister
and operated by officers of the Crown and therefore as
immunity on a par with the pre-1984 Great Britain and further that it
is not profit making.
Maqutu contended that the defendant omitted to specify that the
plaintiff's averments were vague and embarrassing and
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
power unless it were protected against all claims for damages that
were caused by electric power. In such a case the court
find that a regulation affording such protection is so unreasonable
that it could not be adopted and enforced".
to me that the words of Zietsman A.J. referred to earlier in this
Judgment provide an answer to the problem at hand.
exception is upheld with costs-
Plaintiff : Mr. Maqutu
Defedent : Mr. Matsau
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