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C. OF A.
(CIV) NO. 13/1999

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between :

'MATSEHLA
KHALAPA APPELLANT

and

THE
COMMISSIONER OF POLICE FIRST RESPONDENT

THE
ATTORNEY-GENERAL SECOND RESPONDENT

JUDGMENT

10,13
October 2000

Coram :
Van den Heever JA

Gauntlett JA

Ramodibedi JA

Gauntlett JA:

1. [1]
   This appeal raises three questions. The first is whether
   time-barring imposed on claims against the police by s.60 of the

   Police Order, 26 of 1971, as amended, is capable of extension by a
   court after expiry of the relevant period. The second is whether,
   if
   the time-bar can be extended in such circumstances, that should be
   allowed in this case. The third is whether, if s.60 of
   the Police
   Order does not permit extension after expiry of the prescribed
   period, it offends

   
   

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against s. 4(1 )(h) of Lesotho's Constitution.

2. The
   appellant claims damages for what she alleges was the unlawful
   killing of her husband on 13 November 1993 by a policeman.
   To her
   declaration a special plea was filed, asserting that summons was
   served on 17 October 1995, "well after the period
   prescribed
   under the Police Order 1971 as amended". The appellant
   responded with an application seeking condonation for
   the late issue
   of summons. This was opposed.

   
   

3. The
   High Court (Monapathi J) refused the application and upheld the
   special plea with costs. As I understand its judgment, the
   court did
   so for three reasons. The first was that "allowing the
   condonation would leave the defendants without a plea or
   deprive
   them of their special plea". The second was the court had no
   power to grant the condonation sought, after expiry
   of the
   prescribed period. The third was that in any event "I did not
   find anything for the Plaintiff on reasonableness of
   the delay or
   reasons given".

   
   

4. S.60
   of the Police Order, as amended by Order 8 of 1991, reads :

   
   

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"60. Any civil action against the Crown or persons acting in
pursuance of this Order or regulations made thereunder in respect
of
anything done or omitted to be done in pursuance thereof shall be
commenced within six months next after the cause of action
arises and
notice in writing of any civil action and of the substance thereof
shall be given to the defendant at least two months
before the
commencement of the said action:

Provided that the court may, for good cause shown, proof of which
shall, lie upon the applicant, extend the said period of six
months."

5. A
   time-barring provision such as this has serious consequences. It
   assumes the existence of a valid claim but seeks to make it

   unenforceable. It does so moreover after a short period of time, and
   this in a social setting in which many litigants are disadvantaged

   by poverty, illiteracy and lack of access to adequate legal
   assistance. At the same time, however, it has to be borne in mind

   that such provisions are intended to serve a legitimate social
   purpose. This is to ensure that stale claims are not made : that

   courts (and defendants) are not handicapped by litigation in which
   witnesses are no longer available, or are afflicted by failing

   memories, and relevant documentation is not accessible.

   
   

5. How
   then is a court to commence its interpretation of such a measure?
   The

   
   

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answer is clear : by being conscious that what it is asked to do is
to enforce a provision which deprives a litigant of his or
her vested
right. The general principle is that in relation to such provisions
an extensive interpretation will not be adopted.
Innes JA laid down
the correct approach in Benning v Union Government (Minister of
Finance) 1914 AD 180 at 185 :

"Conditions which clog the ordinary right of an aggrieved person
to seek the assistance of a court of law should be strictly
construed
and not be extended beyond the cases to which they expressly apply".

7. This
   dictum does not stand alone. It has been accepted in a long line of
   subsequent decisions. These include: Union Government

   vRosenberg(Pty)Ltd 1946 AD 120 at 129; Administrateur, Transvaal v
   Carletonville Estate, Bpk 1959(3) SA 150 (A); Phillips v Direkteur

   vir Sensus 1959(3) SA 370 (A). Other authorities reflect the same
   principle. Thus Watermeyer J (later CJ) in Gibbons v Cape Divisional

   Council 1928 CPD 198 at 200 referred to such a provision as "very
   drastic" and "a very serious infringement of
   the rights of
   individuals". In Avex Air(Pty)Ltd v Borough of Vryheid 1973(1)
   SA 617 (A) at 621 F-G, Botha JA likewise described
   such a measure as
   "(h)ampering as it does the ordinary rights of an aggrieved
   person to seek the assistance of the

   
   

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courts".

7. I
   list these authorities at some length because they do not appear to
   have been given any consideration by the court a quo. Nor
   are they
   reflected in the heads of argument presented to us. Our attention
   was however drawn to the decision of this court in
   Attorney-General
   v Lerotholi 1995-6 LLR 155, where Mahomed P pertinently observed (at
   157) in relation to the very provision
   in issue here :

   
   

"The effect of denying to him the relief he sought would
undoubtedly be to preclude him from ventilating that complaint in

court and from recovering some measure of compensation for him, if
his allegation were true".

7. Against
   this background, the first main inquiry arises : does s.60 of the
   Police Order permit extension in the way sought by the
   appellant in
   the court below, that is by an application for condonation filed
   after the lodging of the special plea?

   
   

8. The
   first basis on which the court gave its negative answer (see [3]
   above) is in my respectful view quite insupportable. The
   filing of
   the special plea gave the

   
   

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defendants no vested procedural right (see in particular Baeck and Co
v Van Summeren 1982(2) SA 112(W) at 114 E-F and 119 H-120F;
Moosa and
Cassim NNO v Community Development Board 1990(3) SA 175 (A) at 180 J
- 180 B). To hold that would mean that a litigant
can never meet an
exception or special plea by an appropriate amendment, because - on
the approach of the court below - a vested
right to defeat the claim
would thereby be extinguished. Logic and the authorities I have cited
indicate the contrary.

8. The
   second ground for the refusal of the application and the upholding
   of the special plea is however more substantial. It raises
   squarely
   the proper construction of s.60 of the Police Order, regard being
   had both to its wording and the general approach in
   such matters,
   outlined above.

   
   

8. Nothing
   in the express wording of s.60 requires an application for extension
   of the prescribed period to be made before its expiry.
   The wording
   may be contrasted with other statutory provisions where there is
   such an express requirement. Thus s.68(8) of the
   South African
   Administration of Estates Act, 24 of 1913, expressly required a step
   to be taken "at any time before the expiration
   of the period
   allowed" (see Barnard v Cilliers NO 1965(3) SA 806

   
   

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Both the South African Motor Vehicle Assurance Acts 56 of 1972 and 84
of 1986 provided in similarly express terms (in s.24(2),
and s.14(3)
and (4) respectively) for a litigant to

"obtain leave from the court to comply with the prescribed
requirements beyond the two-year period, but before a date determined

by the court, provided the application is made within 90 days after
the claim became prescribed".

A similar
express requirement could have been inserted in s.60 of the Police
Order (when it was framed in 1971 or when it was amended
in 1991),
had it been intended similarly to restrict the period in which
application for an extension can be made.

As a
matter of first principle a court will not imply words into a statute
except where this is necessary, in the sense that without
the implied
words the provision makes no sense as it stands. The court moreover
in such a case must be satisfied that the words
to be implied are
exactly what the legislature must have intended. (See Rennie N.O. v
Gordon 1988 (1) SA 1 (A) at 22 E-G). Neither
requirement is met here.

11. But,
    counsel for the respondents argued, you cannot extend a period which
    has

    
    

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already expired. The resort is thus to the ordinary meaning of the
words used.There are to my mind three answers to the proposition.

11. The
    first is that there nothing in the ordinary sense of "extend"
    (used in relation to a time provision) which makes
    it essential that
    the extension takes place prior to expiry of a prescribed period. In
    relation to an order similarly referring
    to a power to extend a
    period without express provision as to the period within which it
    had to be exercised, Stirling LJ (in
    In re Mcintosh and Thomas
    [1903] Ch 394 (CA))aptIy said (at 409):

    
    

"I do not see any reason why we ought to treat this order as
limiting the time within which the extension ought to be made".

The
second answer is that even if there is doubt in this regard, it has
to be resolved, in the setting of this case, in the way
described in
paragraph [6] above. If the legislature had intended to insist upon
an extension prior to expiry of the prescribed
period, it could have
said so very directly (as the other provisions cited in paragraph
[10] illustrate). Finally, there is the
consideration that to hold
that the extension must take place prior to expiry of the period, and
under no circumstances may

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take
place a day later, would raise problems of constitutionality with
which I later deal. It is a trite principle that where a
court is
confronted with two possible interpretations of a statutory provision
one of which engenders a conflict with the Constitution
but the other
does not, it will ordinarily follow the latter (cf. Executive
Council, W Cape Legislature v President of the RSA
1995(4) SA 877
(CC) at [10]; S v Bhulwana 1996(1) SA 388 (CC) at [28]).

11. The
    same approach was adopted by Lord Alverstone CJ in The King v Lewis
    [1906] 2 KB 307. South African courts have in a number
    of instances
    held that there is a common law power in the court to extend a time
    limit - even in the absence of express provision
    to do so - after
    the expiry of the prescribed period (thus see R v Whittle 1914 CPD
    774; Bredell v Pienaar 1922 CPD 424; Phillips
    v Direkteur vir
    Sensus, supra).

    
    

13. For
    these reasons I consider that the court a quo erred in holding that
    it was not competent for the appellant to seek (through
    what was
    presented as an application for condonation) an extension of the
    prescribed period.

    
    

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13. Counsel
    for the respondent however sought to support the finding of the
    court a quo on a further basis. This is that the appellant's
    claim
    has in any event prescribed in terms of s.6 of the Government
    Proceedings and Contracts Act, 4 of 1965. The contention
    is without
    merit for several reasons. The first is that the claim was
    instituted within the prescriptive period of two years
    laid down by
    that provision. The second is that s.6 of Act 4 of 1965 is not
    pleaded in the respondents' special plea; it is only
    raised in the
    opposing affidavit in the application. The third is that it in any
    event does not apply to claims against the police.
    S.60 of the
    Police Order makes separate, and different, provision for such
    claims. I would add that the drastic provisions of
    s.6 of Act 4 of
    1965 (unrelieved as they are by provision for prescription to run
    only after the creditor has acquired knowledge,
    or has had a
    reasonable opportunity to acquire knowledge, of the material facts
    on which the claim rests, or by provision for
    extension) call into
    serious question its constitutionality. (See especially in this
    regard Mohlomi v Minister of Defence 1997(1)
    SA 124 (CC)). We
    however leave that question open; certainly, however, urgent
    attention needs to be given by the attorney-General
    to the
    constitutionality of that and other time-barring or prescriptive
    statutory measures on the Lesotho statute-book.

    
    

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13. The
    question which then arises is, it being competent for the court to
    grant an extension in this matter, whether the appellant
    made out an
    adequate case in that regard. Not without hesitation it is my
    conclusion that she has done so. Factors which are
    plainly relevant
    include the length of the delay, the reasons given for it and
    consequential prejudice to the respondents.

    
    

13. Summons
    should have been issued by 13 May 1994. Instead, it was issued on 16
    October 1995 and application lodged (in effect) for
    extension on 26
    February 1996. The application followed very quickly after the
    special plea was lodged (on 7 December 1995).

    
    

13. [17]
    The explanation given for what is a considerable delay is that the
    appellant is "an ordinary Mosotho woman who is ignorant
    of the
    requirements of the Police Act 1971". From July 1993 to May
    1995 she was not working, and could not or afford to
    seek legal
    advice. From August 1993 to June 1995 she was living with her uncle
    in Johannesburg, where she unsuccessfully sought
    employment. None of
    these facts were traversed in the opposing affidavit filed on behalf
    of the respondents, nor do they suggest
    that they have been
    prejudiced in the slightest. In reaching his conclusion quoted in
    [3] above, the learned judge a

    
    

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quo appears to have overlooked this. As already indicated, he
moreover does not appear to have been aware of the proper approach
to
be adopted to the interpretation of such provisions. In the
circumstances he did not exercise his discretion judicially.

18. Regard
    being had to the particular facts of this matter, I consider that
    the court a quo should have granted an extension, pursuant
    to the
    proviso of s.60 of the Police Order, of the plaintiffs claim to the
    date of institution of the action (16 October 1995).

    
    

18. In
    these circumstances the challenge to the constitutionality of s.60
    of the Police Order advanced by the appellant becomes moot.
    It is
    again an important principle of constitutional litigation that a
    court will not determine a constitutional question where
    a matter
    may properly be adjudicated on another basis. Its African genesis is
    a single sentence by Kentridge AJ in S v Mhlungu
    1995(3) SA 867 (CC)
    at 895 E :

    
    

"I would lay it down as a general principle that where it is
possible to decide any case, civil or criminal, without reaching
a
constitutional issue, that is the course that should be followed".

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This was thereafter approved by a unanimous Constitutional Court in S
v Vermaas 1995(3) SA 292 (CC) at [13], and again in Motsepe
v CIR
1997(2) SA 898 (CC) at [21]. The roots of the rule lie in a judgment
of Matthews J in the United States Supreme Court in
1885, in
Liverpool, New York and Philadelphia Steamship Co. v Commissioners of
Emigration 113 US 33 (1885) at 39. It has been followed
in the United
States ever since (see the authorities cited in Zantsi v Council of
State, Ciskei 1995(4) SA 615 (CC) at [2] note
3). The same approach
has been adopted by the Supreme Court of India, which was followed in
turn by Dumbutshena AJA (writing for
the Supreme Court of Namibia) in
Kauesa v Minister of Police 1996 (4) SA 965 (Nm SC) at 974 D-E. This
court, in its judgment in
Sekoati v President of the Court Martial C.
of A. (CIV) 18/99,9 November 1999), adopted the same approach (at p.
10).

20. It
    follows that the appeal must succeed, with costs to be paid jointly
    and severally by the respondents, the one paying the other
    to be
    absolved. The order of the court a quo is set aside and substituted
    with the following order :

    
    

"(a) The period within which the plaintiff was required to
commence her civil action against the defendants is

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extended to 17 October 1995, and the defendants' special plea is
dismissed.

2. The
   defendants are directed to pay the plaintiffs costs, jointly and
   severally, the one paying the other to be absolved".

   
   

J J
GAUNTLETT

JUDGE OF
APPEAL

I agree

L VAN DEN
HEEVER

JUDGE OF
APPEAL

I agree

M.M.
RAMODIBEDI

JUDGE OF
APPEAL

Delivered
at Maseru on this 13th day of October 2000

For
Appellant: Mr K.K. Mohau

For
Respondents : Mr T.S. Putsoane