CIV/APN/136/97

IN THE HIGH COURT OF LESOTHO
In the matter
between:-

PIUS TEBOHO NTJA MASUPHA APPLICANT

vs
LESOTHO NATIONAL GENERAL INSURANCE CO. LTD.
RESPONDENT

JUDGMENT

Delivered by the Honourable Mr Justice S.N. Peete on the
21^st August, 2000

In this application, the applicant prays for an order in
the following terms:-

" 1. Condoning failure of applicant to comply with
Motor Vehicle Insurance Order 1989 (sic 1972) especially section
10(1) thereof;

2. Granting applicant leave to sue the respondent for
compensation as a result of a motor accident which resulted in the
fatal death
of applican1sts wife.

3. Costs of suit only in the event of opposition.

4. Granting applicant further and/or alternative relief.

2

In his founding affidavit attached to the Notice of
Motion, the applicant alleges that his wife was killed in a road
accident that
occurred on the 22^nd April 1989 at Ha
'Masana between motor vehicles Y87761 and C1052. It is clear that the
Motor Vehicle Insurance Order No.26 of 1989
only came into operation
on the 1^st January 1990 (section 1 thereof); when
therefore the fatal accident occurred the Motor Vehicle Insurance
Order No.18 of 1972 was
still operative. The applicant therefore has
relied and sought to comply with the provisions of a law that did not
exist when the
claim arose. Even though this incorrectness was raised
by the respondent in his answering affidavit (paras 4 and 6), the
applicant
still persisted his replying affidavit to pursue
application under the 1989 Order.

On this aspect Mr Grundlingh submits that the
application be dismissed summarily as being bad in law. Section 19
(2) of the 1989 Order
reads:-

"(b) the provisions of the Motor Vehicle Insurance
Order of 1972 shall continue to apply with reference to claims for
compensation
and to liability for compensation in respect of loss or
damage which arose prior to the commencement of this Order."

The question is whether the founding affidavit and
Notice of Motion are bad in law such that they do not disclose a
cause of action.
Herbstein and van Winsen - The Civil Practice of the
Supreme Court of South Africa (4^th Ed) 1997 p. 364 has
this to

say:

3

"This supporting affidavits must set out a cause of
action. If they do not, the respondent is entitled to ask the court
to dismiss
the application on the grounds that it discloses no basis
on which the relief can be granted"

Mr Grundlingh submits that if the applicant is replying
upon the provisions of the 1972 Order, his Notice of Motion and
supporting
affidavits should have contained averments to make that
clear Van der Merwe vs Suid Afrikaanse Nationale Trust en Assuransi
Maatkappy
Bpk - 1947 (2) SA 440 at 446; Gumede vs African Guarantee
and Indemnity Company Ltd 1952 (3) SA 457. The present application as
it
therefore stands on these papers does not plead the insurance
obligation in terms of the 1972 Motor Vehicle Insurance Order which
was still operating when the accident occurred. This incorrectness
should have been rectified at least in the - replying affidavit
but
this was not done. I would indeed feel inclined to dismiss the
application on that ground alone; but I have chosen to deal with
the
main issue of whether this court has power under the 1972 Motor
Vehicle Insurance Act to condone the late filing and service
of
summons in the circumstances of this case.

Assuming that the Motor Vehicle Insurance Order 1972 had
been relied upon, it is pertinent to observe that this Order did not
give
the court power or discretion to condone the non-compliance with
its prescriptive provisions, namely sections 13 (2) and 14 (1) and
(2). These read -

"(a) The right to claim compensation under
sub-section (1) from the registered company, shall become prescribed
upon the expiration
of two years from the date upon which the claim
arose: provided that prescription shall be suspended

4

during the period of sixty days referred to in
sub-section (2) of section fourteen" (my underlining)

Section
14 (2) in turn reads:-

"No such claim shall be enforceable by legal
proceedings commenced by a summons served on the registered company
before the expiration
of 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)" (my underlining)

The proper reading of section 10 (1) of the 1972 Order
is that the right to claim compensation shall become prescribed upon
expiry
of a period of two years provided prescription is suspended
for a period of sixty days after a claim MVI 13 has been lodged. In
my
view the right which has prescribed becomes extinguished and hence
unenforceable. The prescription under the Motor Vehicle Insurance
Order 1972 is best described as extinctive - Neon and Cold Cathode
Illuminations (Pty) Ltd vs Ephron-1978 (1) SA 463; Mazibuko vs
Singer
1978 (1) SA 839.

Another question is: if a right has lapsed by operation
of law, does the court possess power to revive or rescusitate such
right under
common law?

In the case of Mokhethi vs Lesotho National Insurance
Insurance Co. -

CIV/APN/57/86 (unreported) our Chief Justice Kheola (ACJ
as he then was) had occasion to consider an application wherein the
applicant
sought an order condoning his late lodgment of an MVI 13
claim on the ground that the two years prescription period had
expired due
to no fault or negligence on her part. The application
was opposed on the ground that under the Motor Vehicle Insurance
Order No.
18 of 1972

5

this Court had no power to condone the late lodging of
the claim form with the registered insurers. In that case certain
occurrences
were alleged by the applicant as having induced her to
fail to file her claim timeously within the two years period, for
example
a certain moon-lighting Mr Kosie who had posed as a lawyer
had somehow disappeared along the way leaving incomplete forms in his
trail. Holding that the words of the statute must always be
interpreted in their ordinary and literal meaning, the learned Chief
Justice stated that Sections 13 (2) (a) and 14 (2) make it abundantly
clear that prescription begins to run from the date of the
accident
upon which the claim arises; and that if within two years from the
date of the accident the third party sends or delivers
the claim to
the insurer, the prescription is suspended for a period of sixty days
from the date the claim was sent or delivered.
Where upon proper
computation or calculation of the period, it is clearly shown that
the right to claim compensation has prescribed
either (a) because the
MVI13 was not served within two years after the accident and (b)
because the summons have been served after
the expiry of the
prescriptive period (which should include 60 days), it was held that
the court has no power to condone the late
filing of the claim for
compensation.

"There is no provision in the Motor Vehicle
Insurance Act 1972 giving the Court the power to do so," and ...
"the function
of the court is to interpret the law and not to
legislate," the learned Chief Justice noted.

In my view this Court has no power either under the High
Court Act of No.5 of 1978 or under common law to condone
non-compliance with
an Act of Parliament; it however has power to
condone non-compliance with its own rules - see High Court Rule 59.
It reads-

6

"Notwithstanding anything contained in these Rules,
the Court shall always have discretion, if it considers it to be in
the interests
of justice, to condone any proceedings in which the
provisions of these rules are not followed." (My underlining)

The court, in other words, cannot resuscitate a right
which ex lege has prescribed and been extinguished. In passing it may
be mentioned
that in South Africa until recently, section 24 (2) of
the Motor Vehicle Insurance Act No.56 of 1972 as amended provided for
a court
relief of a prescribed claim if the applicant could satisfy
the court that by reason of special circumstances he could not
reasonably
have been expected to comply with the prescriptive
provisions of the Act. (See Chiliza vs Commercial Union Assurance
1976 (1) SA
917 at 918). In Lesotho we did not have a similar
provision under our 1972 Order, and indeed we still do not have such
even under
the current 1989 Order.

Mr Maieane however strenuously argued that the court had
the inherent power in view of the special, if not pitiable,
circumstances
of this present case, to condone the late filing and
service of the summons to enforce the applican1sts claim for
compensation.

It is not in dispute that in the present case the claim
was served upon the insurer timeously on the 9^th June 1989
(the accident date being the 22^nd April 1989). My
calculation of sixty day suspension period gives 9^th
August 1989; and the summons therefore ought to have been served upon
the defendant on any day between 10^th August 1989 and 22^nd
June 1991 the latter date being the cut-off date and no

7

summons could not therefore be validly issued after the
date (see my recent judgment in Moeti vs LNIG - CIV/T/618/93
(unreported).
Of great interest is however the case of Attorney
General vs Mpalipali Lerotholi 1995 - 96 LLR and Legal Bulletin 155
where the late
Mahomed P (as he then was) held that it was clearly
relevant for the court to take into account the culture of human
rights when
exercising discretion in terms of section 60 of the
Police Order 1971 - e.g. ignorance on the part of the applicant
concerning the
prescriptive provisions in the law, and the effect of
denying him relief as precluding his human right to ventilate his
claim under
law. Under the Police Order the Court has a discretion to
extend the 6 months statutory period of prescription.

In the present case, Mr Maieane invoked what he called
"special circumstances" of the case, for example the fact
that immediately
after his wife had been killed in the road accident
of the 22^nd April 1989, the applicant timeously lodged his
MVI13 claim on the 9^th June 1989. This he did on his own
without assistances of an attorney. This choice is the one that begot
him his later woes or troubles.
On the 8^th July 1989 the
insurer wrote to him acknowledging receipt of his claim and informing
him that the claim would henceforth be handled
by Webber Newdigate as
their attorneys and "you will no doubt be hearing from them in
due course." Applicant apparently
wrote to Webber Newdigate on
6^th November 1991 and was replied by them on the 9^th
January 1992; there are also letters dated 28^th October
1991,26^th September 1991,19^th July, 1989, and
18^th January 1992.

8

Correspondence per se unless it repudiates liability
does not interrupt the running of the 60 day suspension period; if
the insurer
however immediately or at any time during this suspension
period repudiates liability, the claimant can issue and serve summons
upon
the insurer right away. In the present case the insurer only
required certain information in order to enable it to determine the
claim. It neither settled nor repudiated this claim during the sixty
day period. In my view, the applicant, personally or through
his
attorney had a full right during the period 10^th August
1989 to 22^th June 1991 to have issued summons without much
further ado. He did not exercise his right as he was entitled to do;
ignorance of the
law is pleaded; but I should say ignorance of the
law does not interrupt or suspend the running of the suspension nor
is it a factor
sufficient to entitle the court to condone his
non-compliance with the provisions of the law.

Under the Motor Vehicle Insurance law in Lesotho as it
presently stands the court has absolutely no discretion even to
afford an equitable
relief to a defaulting applicant; and I regret to
say that he cannot even claim against the owner of the vehicle which
might have
negligently caused the death of his wife. Speaking for
myself, I dare say, that our law on this aspect may be in need of
reform so
that the claimant be afforded a better protection against
prescription. As I stated in Moeti's case (supra) lay claimants are
not
acquainted with the intricate provisions of the Insurance law
whose provisions even mislead or are misinterpreted by some legal
practitioners.
I need not again indeed repeat my advice to
practitioners who receive instructions, to lodge the insurance claims
and issue summons
timeously on behalf of their lay clients.

9

In the circumstances of this case, I hold that this
court has no power or discretion under the Motor Vehicle Insurance
Act of 1972
to condone non-compliance with the provisions of section
10 of the said Act.

The application is therefore dismissed with costs.

JUDGE

For Applicant : Mr Maieane

For Respondent : Webber Newdigate