CIV/T/166/80
IN THE HIGH COURT OF LESOTHO
In the matter of :
NOEL THATHTWE SIKHONDE Plaintiff
v
LESOTHO NATIONAL INSURANCE CO. Defendant
JUDGMENT
Delivered by the Hon. Chief Justice, Mr. Justice
T.8. Cotran on the 11th day of March, 1981
The pleadings in this action have been closed but the
parties persuant to Rule 32(1) of the High Court Rules 1980
have submitted a special case for adjudication.
The following is a statement of agreed facts in terms
of Rule 32(6) :
"1. The motor accident giving rise to the claim
in this matter occurred on the 22nd April,
1978.
2.      As a result of the said accident the Plaintiff
claims from the Defendant compensation for
personal injuries in terms of Section 13 of the
Motor Vehicle Insurance Order No. 18 of 1972
("the Order").
3.      In terms of Section 14(2) the Plaintiff was
obliged to send or deliver to the Defendant a
"claim for compensation" as contemplated by
Section 14(1) of the Order within a period of
two years from the 22nd April, 1978, as provided
by Section 13(2) of the Order.
4.      The "form prescribed by Regulation" to which
Section 14(1) of the Order refers is the form
MVI13 prescribed by Regulation 6(1) of the
said Regulations.
5.      By letter dated the 15th January, 1980(Annexure "A"
hereto) the Plaintiff's Attorneys sent a form MVI13
to the Defendant, and such form was received by the
Defendant within the prescribed period of two years.
6.      By letter dated 28th January, 1980(Annexure "B"
hereto) the Defendant returned the said form to
the Plaintiff's Attorneys requiring

questions 3(a) and 5(b)(l) and 5(b)(ii)"
thereof, and
/(b)    

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(b) "that the medical report at the back of
the form be completed in detail by the
doctor attending (the Plaintiff) immediately
after the accident, as required by Order 18
of 1972".
7.      A copy of the Form MVI13 as submitted to the
Defendant by the Plaintiff is annexed hereto
marked "C".
8.      The form of medical report referred to in Section 14
of the Order and in the said Form MVI13, a copy of
which is annexed hereto marked "D" was not completed
in any respect nor signed by any doctor.
9.      Instead a certificate by doctor P.C.F.M. Gondrie,
of which a copy is annexed hereto marked "E",
accompanied Annexure "C", and no further medical
report or certificate was or has been submitted
by the Plaintiff or her Attorneys to the Defendant
or any representative of the Defendant.
10. The particulars contained in paragraph 3 and 5 of
the Form MVI13 (Annexure "C") are accepted by the
Defendant as constituting substantial compliance
with Section 14 of the Order in so far as it
relates to the said paragraphs."
The only issue submitted for adjudication is:
"Whether the plaintiff's failure to deliver a completed
medical report in the prescribed form (Annexure D) and
delivery, in its stead, of Annexure E hereto,
constitutes compliance, or substantial compliance,
with s.14 of the Order".
Section 14 of the Motor Vehicle Insurance Order 1972
(Vol. XVII Laws of Lesotho p. 70 at p.85) provides :
"14. (1) A claim for compensation under section 13
shall be set out on the form prescribed by
regulation in such manner as may be so
prescribed and shall, accompanied by such
medical report or reports as may be so
prescribed, be sent by registered post or
delivered by hand to the registered company
at its registered office or local branch
office, and the registered company shall,
in the case of delivery by hand, at the time
of the delivery acknowledge receipt thereof
and of the date of such receipt in writing.
14. (2) No such claim shall be enforceable by legal
proceedings commenced by a summons served
on the registered company before the
expiration of a period os sixty days from
the date on which the claim was sent or
delivered, as the case may be, to the
registered company as provided in sub-
section (1)."
Section 14 is almost identical with s.11 of the Motor Vehicle
Insurance Act No. 29 of 1942 of South Africa as amended from
time to time, as also are the prescribed forms which can be
found in Legal Notice No. 34 of 1972 (Vol. XVII Laws of Lesotho
p.384 at p.402). The Act 29 of 1942 was repealed and
/substituted

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substituted by Act 56 of 1972, but the new provision (s.25) is
more or less similar to s.11 of the 1942 and s.14 of our Order,
Cases decided in South Africa under both acts, but more especially
the 1942 Act, are of great persuasive authority here.
It hag been stated (e.g. in Nkisimane and Others v, Santam
Insurance Co. 1978 (2) S.A. 430 at 433 E-G that the procedural
requirements of s.25 of the 1972 Act; (s.ll of the 1942 Act and
our s.14 of the Order) may be broken into :
"(a) The submission of the claim: a claim for
compensation must be submitted to the
authorised Insurer.
(b)     The form of the claim: the "prescribed form"
is to be used i.e. the form prescribed by
Regulations, being form MVA13(South African)
and MVI13 (Lesotho).
(c)     The contents of the claim: these are to be
"set out in the prescribed manner", i.e. in
the manner prescribed by the Regulations.
(d)     The manner of submitting the claim: it must
be sent by registered post or delivered by
hand."
Form MVI13 is divided into what I shall call for convenience
a General part, (which Mr. Newdigate for the defendants concedes
was adequately completed) and a Medical part which it is common
cause was not completed at all. Mr. Newdigate's argument is that
even assuming that it was not imperative (that matter is still
open-see Nkisimane's case, supra, and Kruger v. Randelia
1976(2) S.A. 504) to complete the Medical part of MVI13 the
information required by the form must nevertheless be
substantially complied with. The medical report that was filed
in lieu of the Medical part of form MVI13 reads as follows :
"        Leribe
9.11.78.
To whom it concerns.
22.4.1978. Mrs. Nowel Sikhonde was admitted
in Leribe hospital. Diagnosis: dislocated hip.
Date of discharge: 29.5.1978.
Afterwards she was given a sick leave for another
six months.
Total period of absence from work: 12 weeks.
P.C.F.M. Gondrie
D.M.O. Leribe. "
I am proceeding on the assumption that this certificate was
sent timeously together with what I called the General part of
MVI13.
/The form

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The form MVI13 (end I am assuming also the certificate) were
returned by the defendants with a covering letter (Annexure B)
to plaintiff's attorneys in which they stated, inter alia:-
"In addition it is essential that the medical
report at the back of the form is completed
in detail by the doctor attending your client
immediately after the accident as required by
Order 18 of 1972".
This statement is misleading for the Order and Regulations
do not require the medical report to be completed by the doctor
who attended the patient immediately after the accident. It can
be completed by any doctor even if that doctor did not initially
or at all attend to the patient previously. Attorneys for
plaintiff must surely have known this and should have realised
that that was not an essential requirement of the law. They
still had approximately three months to send the plaintiff to
consult a doctor before the expiry of the statutory time limit
in order to get the form completed. They did not do so and though
the defendants do not admit this as a fact it would appear that
their excuse for not communicating further with the defendants
was because the doctor who attended the plaintiff immediately
after the accident and the author of the certificate above
referred to (Dr. Gondrie) had left the country. This may be so
but if the information given in the General part of MVI13
(Annexure D s.6 para 1-m) submitted to defendants is true,
Dr. Israel of Ficksburg and Dr. King of Delmas in the Transveal
apart from her usual medical attendant Dr. Motlana in Johannesburg
could have filled the form or given certificates sufficiently
complying with the requirements of the law. Through lack of
diligence attorneys for plaintiff allowed the statutory time to
lapse and it is their contention now that that certificate has
substantially complied with the prescribed requirements of the
Medical part of the form MVI13. Attorneys for defendants
submitted that whilst it is true that the general object of the
Act was to afford to third parties the widest possible protection
by way of compensation for any loss sustained by them through
the negligent and unlawful driving of motor vehicles, s.14 was
enacted mainly for the benefit of authorised insurers to ensure
that before being sued for compensation they have before them
sufficient particulars about the claim and sufficient time to
consider and decide whether to resist the claim or to settle or
compromise it before the costs of litigation is incurred
(Rondalia BPK v. Lemmer 1966(2) S.A. 245 at 256 A and Commercial
Union Assurance Co. Ltd v. Clerke 1972(3) S.A. 508 at 517 F) and
to assist them in the computation of the damages claimed
(Nkisimane's case, supra, 435 H and 436 A). It was argued that

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the absence of answers to questions 6, 7, 9, 10 and 11 of the
Medical part of MVI13 form-see Annexure D - it is impossible
on the information as supplied in the certificate to make a
realistic assessment, and if it accepts liability, to make a
realistic offer, which can if necessary be made in a formal
tender to place the plaintiff on risk as to costs.
The information disclosed in the certificate was that the
plaintiff suffered a dislocated hip, was hospitalised for
five weeks or so, was given six weeks sick leave, making a
total absence from work to some twelve weeks. Insurers do not
know if she had complications, whether permanent disability
was anticipated, whether she received specialist treatment,
whether she was in need of future treatment, whether she had
pre existing pathological injuries, or whether the accident
aggravated those injuries, etc.
I am of the view that there was no substantial compliance
and the question is answered in favour of the defendants.
CHIEF JUSTICE
11th March, 1981
For Plaintiff : Mr. Sooknanan
For Defendants' Mr. Newdigate