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CIV/T/449/90

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

PUSO
MOSETSE Plaintiff

VS

DR.
MUSTAQ ANWARY Defendant

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi on the 6th day of
December, 1994

The
Plaintiff claims against Defendant, as a result of Plaintiff's minor
child Noozi Mosetse's injuries and incapacitation, the
following
amounts for damages:

1. Medical
   expenses (present and future) M29,981.45

   
   

2. Disability
   (permanent) M30,000.00

   
   

3. Mental
   shock M10,000.00

   
   

4. Pain
   and suffering M20,000.00

   
   

Total M89,981.00

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It is
alleged in the summons that the negligent driving of the Defendant
caused the collision as a result of which the said child
was injured.
No other vehicle was involved.

Having been served Defendant entered appearance to defend and
requested further particulars which were furnished by the Plaintiff.

The Defendant took up a special plea in abatement which is to be
shown in its entirely, if only to make for clarity and better

understanding of the proceedings and arguments. The said plea was as
follows:

" (1)

At all times relevant to the above action the motor vehicle B1200 was
properly insured pursuant to the provisions of the Motor
Vehicle
Insurance Order No.18 of 1972, certain Declaration and Token No.
16124 having been issued in respect thereof by Lesotho
National
Insurance Company (Pty) Limited on 16th December, 1985, in respect of
the period of insurance extending from 1st January,
1986 to 31st
December, 1986.

(2)

By virtue of the provisions of section 16 of the said Order,
Plaintiff is not entitled to claim damages from Defendant but can

only claim from the said Insurance Company, as provided for in the
said Order."

The
Annexure "A" to further particulars requested by the
Defendant shows very clearly that the Defendant's vehicle was
insured
in the respects shown in paragraph (1) of the special plea. This
Annexure A is the Lesotho Mounted Police Motor

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Vehicle
Accident Report form that was duly filled by police officer no. 3303
L/Sgt Moruti around the 21st April 1987 according to
the office
rubber stamp impression.

It is
necessary to observe that, while having alleged at paragraph three of
the Plaintiff's declaration that: "on or about
10 April 1986
Defendant was driving along Butha-Buthe Leribe public road motor
vehicle B1200 in respect of which there was no token
of insurance
pursuant to Motor Vehicle Insurance Order 1972," the Defendant
was able to furnish the Annexure "A"
when so requested by
the Plaintiff which amply shows the distinct probability that the
Defendant's vehicle must have had knowledge
of the existence of the
token of insurance, I discounted the probability that the police got
the information somewhere else or
other than at the scene of the
accident. It was not explained why, if ever, the plaintiff was not
able to get the information timeously
either. The point is that the
Plaintiff seems to have been possessed of this information. This is
significant.

The
section 16 of the order is framed as follows:

16. When
    a person is entitled under section 13 to claim from a registered
    company............... the first mentioned person shall
    not be
    entitled to claim compensation ............... unless the registered
    company is unable to pay the compensation" (my
    underlining).

    
    

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The
Plaintiff acknowledges that it is correct, that a claim has to be
made first to the registered Insurance Company (the Insurer).
But the
Plaintiff counters that this is so only if the amount claimed from
the company does not exceed a sum of M12,000,00. This
appears in the
Plaintiff's plea to Defendant's Special Plea in Abatement as follows:

"1

AD PARAGRAPH 1 and 2

The said damages claimed from Defendant are over and above the
M12,000.00 claimable from the insurance company in terms of the
said
order."

Plaintiff
submits that to that extent the requirement is not binding and his
claim ought not to be set aside.

I do not
accept that this Plaintiff's plea to Defendant's Special Plea is
valid. I am here referring to his contention that: Plaintiff
was
entitled to proceed against the Defendant without first claiming
against the company because his claim was over M12,000.00.
I am not
persuaded. I knew of instances where in the Courts of Republic of
South African various claims were made in which interpretation
was
sought over a similar section of the Compulsory Motor Insurance Acts
where multiple claims were made involving maximum claims.
These have
always been multiple claims. In other claims it was where the
Compulsory Motor

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Vehicle
Acts provided for a maximum amount for which insurance companies
would be liable but where no provision was made for the
manner in
which sum was to be divided amongst claimants from the maximum
amount. In all these cases it has never been a defence
nor has it
been an approach nor justification by the Plaintiff to proceed
against the Plaintiff outright without first having hed
recourse to
the still solvent insurer (See Mali vs Shield Insurance to Ltd
1984(2) 798 SECLD, Mazubane v SA Murual and General
Insurance Co.
1984(4) 485 DCLD Mambi v Mutual and Federal Insurance Co. Ltd 1992
(2) 476 (TK)).

I took
the view that no amount of stretch in interpretation of Section 13(b)
(i) (ii) (iii) and (iv) would justify the Plaintiff's
inability to
claim against the Insurer. I do not see that there is any good reason
why the Plaintiff could have been able to arrive
at a decision that
the insurer was unable to pay the compensation in terms of said
section 16 without having first claimed against
the Insurer. This is
the only common sense approach acceptable. This is more so because in
order to determine whether the Insurer
is unwilling to pay, there
must have been a claim filed with the Insurer. In Barlow (Eastern
Province) vs Bouwer 1950 (4) 385 EDL
the learned Judge Reynold J. in
dealing with a situation where an act of insolvency was alleged and
where applicant conceded respondent's
ability to pay. said at page
393 H "It is quite true that the refusal or

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unwillingness
to pay must occasion a delay in the creditor getting his money by
judgment and execution, but that occurs even when
a debtor just
refuses to pay his just debt without saying anything about inability
to pay, and the mere adding of words that he
is unable to pay when
all shows to the knowledge of the creditor that the debtor is merely
unwilling to pay cannot alter the facts."
(my underlining) The
point I am making is that the plaintiff by his failure to file a
claim against the insurer actually made it
difficult to determine if
the insurer was unable to pay as provided for in section 16.
Furthermore had the Plaintiff filed a claim
against the insurer then
it would have been revealed if the insurer company was able to pay
but unwilling to pay for whatever reason.
May be one of the reasons,
to be revealed, could have been that the claim is in excess of
M60,000.00 as Mr. Nathane has variously
submitted. I cannot decide
that for the purpose of this judgment. This question of the
distinction between inability to pay and
unwillingness to pay has
been considered in various South African Case mostly to do with
insolvency claims and judicial management
of companies, (see South
African Spice Works vs Spies 1957 (1) SA 681 TPD, Rabie vs Van der
Merwe and Bezeideahout Pty Ltd 1939
(2) PH3). This distinction is
useful in the instant matter to show that for the purpose of the
interpretation of section 16 of
on Motor Vehicle Insurance Act 1972
one can only be able to prove inability to pay as against
unwillingness to pay by actual filing

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of a
claim against the Insurer.

I need to
develop the above point further in adopting a passage at page 473 of
the judgment of Centlivers JA in Roses Car Hire (Pty)
Ltd v Grant
1948 (2) SA 466 AD, the learned Judge Janes J. in Palmer v Joe Borga
Transport and Another 1963(4) SA (188 (418) at
490 F-H had this
instructive statement to make: "As I have read this passage it
means that the Insurance Company is obliged
to pay all it can, and
the owner of the vehicle can only be sued for so much as the
Insurance Company cannot pay.I am fortified
in my belief that this is
the proper interpretation to be placed to section 13 of the Act
because if it were not so the owner of
a car who had insured it,
compulsorily, with an Insurance Company which found itself in
financial difficulties, would receive no
advantage from the
compulsory act of insurance. If he alone were sued and judgment were
given against him for the total amount
of the compensation he would
have no recourse against the Company under the Act, even if the
Company would have been able to pay
ninety five cents in the rand if
it had been sued. On the other hand Mr. Pape readily conceded, there
would be nothing to stop
a claimant who found himself in a position
of the Plaintiff from joining both the Insurance Company and the
owner and authorized
driver of the vehicle in one action and claiming
from the latter so much compensation of the Company was found to be
unable to
pay:" (my underlining). I do not propose

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to deal
with the wisdom of joining both the Plaintiff and the Insurance
Company although this was debated by Mr. Buys for Defendant
and Mr.
Nathane for Plaintiff. In my mind what stood to be determined was the
true entitlement of the Plaintiff to have claimed
against the
Defendant in the face of the provisions of the said section 16 of our
law. It means that the insurer must actually
indicate whether it can
or it cannot pay and what the reasons therefor are.

Furthermore
in Conradie vs Erasmus and Son 1951 (4) SA 29 the Court was seized
with an appeal against a magistrate's dismissing
an exception to the
Special Plea. The exception was that the car in question was insured
with a registered company under the provisions
of the Motor Vehicle
Insurance Act No. 29/1942 and therefore by virtue of Section 13 of
the Act read with Section 11, the Plaintiff
had no right to claim
against the defendant, unless the Insurance Company was unable to pay
the claim, which was not the case.
To this special plea the Plaintiff
excepted to the plea on the ground that it disclosed no defence. The
learned judge de Villiers
J allowed the appeal and held that the
magistrate was correct in dismissing the exception.

In the
instant case I make a finding that there was no proof on the facts
that the Insurance Company was unable to pay the

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compensation,
on the interpretation of the said Section 16 (which is similar to the
South African Section 13). The Plaintiff's claim
must fail and the
Defendant's Special Plea is allowed with costs.

T.
MONAPATHI

JUDGE

For the
Plaintiff : Mr. Nathane

For the
Defendant : Mr. Buys