CIV/T/84/97
IN THE HIGH COURT OF LESOTHO
In the matter between:
LERATA TSIU Plaintiff/Applicant
VS
LESOTHO NATIONAL GENERAL INSURANCE
COMPANY LIMITED Defendant/Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice G. N. Mofolo On the 27th October, 2004
This case came before Ramodibedi J (as he then was) under CIV/84/97 in which Lerata Ts'iu sought an order that:
'Mapelaelo Ts'iu be joined in these proceedings as a co-plaintiff;
Lerata Ts'iu be appointed co-guardian putatively of the minor child Pelaelo Ts'iu for purposes of the proceedings in the main action herein;
All acts and procedural steps taken by Lerata Ts'iu on behalf of 'Mapelaelo Ts'iu and Pelaelo Ts'iu in the main action be ratified
and confirmed retroactively and be deemed to have been duly taken by him in his representative capacity as co-guardian.
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Defendant be ordered to pay costs hereof in the event of opposing this application, otherwise the costs thereof be costs in the cause (sic);
Granting Plaintiff/Applicant herein further and/or alternative relief.
The Court per Ramodibedi J. aforesaid had granted prayers 1 and 3 above and dismissed prayer 2. In course of its judgment, the Court had reserved decision on prescription so far as it affects 'Mapelaelo in her personal claim preferring the issue 'to be pleaded and canvassed in the normal way before an informed and proper determination can be made on it.'
Cognizance has to be taken of the fact that in course of his judgement the learned judge at p.5 decided:
'Mapelaelo is the deceased's wife as well as the minor child's natural mother and legal guardian.'
And
'I find therefore that she has a direct and substantial interest capable of legal enforcement in the matter.'
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In case of doubt, the Court per Ramodibedi J. has repeated on p.7 of the record 'that both 'Mapelaelo and minor child are factually
Applicant/Plaintiffs dependents —' and at p.8 thereof
'I have also considered the fact that 'Mapelaelo is indisputably the natural guardian of the minor child after the death of her deceased husband.'
In addition, Ramodibedi J. has decided 'that prescription does not run against a minor (p.9).
It is against this background that 'Mapelaelo Ts'iu has applied to this Court claiming:
Condonation of the late institution of the main action herein by Plaintiff/Applicant;
Extending and/or suspending the period of prescription in the main action to 16 April, 1997;
Granting Plaintiff/Apllicant further and/or alternative relief.
Account is to be taken of the fact that although plaintiff/applicant had filed an application suspending the period of prescription,
prescription was argued but not decided as I showed above.
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Before me and when the matter came for argument, Mr. Ntlhoki for the plaintiff/applicant abandoned the claim relating to condonation above saying:-
'Plaintiffs' counsel has given serious thought to the need or otherwise of pursuing the said application. He concludes that it is not necessary to pursue it and it is thus abandoned as Plaintiffs' case is still strong without such application, (paragraph 2 of Plaintiffs' Revised and Consolidated Heads of Argument).
I have understood Mr. Ntlhoki as saying even without a specific application for condonation the issue would take care of itself having regard to the strength of plaintiff s case. My impression is that Mr. Ntlhoki has not categorically abandoned the issue of condonation expecting now and then to emerge in the course of argument. No wonder Mr. Grundlingh for the defendant/respondent spend quite sometime addressing court on this aspect.
In any event since prescription started as a Special Plea seems to me convenient to first address this.
In terms of sec. 10(1) of the Motor Vehicle Insurance Order, 1989,
'The right to claim compensation under this Order from the insurer shall become prescribed upon the expiry of a period of two years as from the date upon which that claim arose;
Provided that prescription shall be suspended during the period of sixty days referred to in secionl2 hereon.
No other law relating to prescription shall apply to this Order.
Exceptions:
11. Prescription of a claim for compensation under this Order shall not run against;
a minor
From the above, there can be no doubt that since Pelaelo is a minor, prescription does not run against her. There can also be no doubt that it would seem application for condonation lodged on behalf of'Mapelaelo was so made because it was felt prescription had run against 'Mapelaelo? But perhaps not so for, according to Mr. Ntlhoki the statutory claim form envisaged by sec. 12(1) of Order No.26 of 1989 constitutes a demand for payment. According to Mr. Ntlhoki defendant is obliged to pronounce its attitude concerning the demand for, in the process, it must either accept liability and make an offer of or repudiate such liability in that defendant cannot merely acknowledge receipt of the demand and shut up in the belief that plaintiff will not issue summons until prescription has run. Mr. Ntlhoki sees reaction to demand as precedent to the running of prescription and that
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where a Defendant has neither repudiated liability nor made an offer of settlement he cannot subsequently raise the special plea of prescription.
I am, in this regard, mindful of Resisto Diary (Pty) Ltd v. Auto Protection Insurance Co. Ltd, 1963 (1) SA 632 (AD) where according to Hoexter JA on appeal from the Cape Provincial Division it was the duty of the appellant to give notice of the accident as soon as possible after its occurance. Resisto Diary above had submitted their claim as follows:-
"re: Policy No. 5019 - Resisto Diary (Pty) Ltd. We refer to the claim under the policy, and now attach hereto completed and signed claim from the above assured.'
According to Hoexter JA at p. 640, in his opinion there was duty on the respondent, if it had made up its mind, to repudiate liability on the policy, to inform appellant of its decision within a reasonable time; further, if the respondent wanted time to consider whether it would or would not repudiate, it was its duty to inform appellant of this. Seems to me this has to be because policies demand that the ensured give all such available information and assistance as may be required. I cannot imagine that the information is given so that the company may sit on it and not reciprocate by informing the ensured whether his claim is undergoing consideration, has
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been accepted or for some reason has been repudiated for, according to Hoexter JA ibid, '— it would appear from the evidence that insurance companies which repudiate liability generally do so within a matter of a few weeks. In this case there was also 3rd party claim in respect of those who died in the accident. The above Resisto Diary case had come to the Appellate Division on review and referring to the correspondent between the appellant and respondent Hoexter JA differing from the judgment of the Provincial Division was of the view that 'in my opinion it became necessary for the respondent to decide whether it would accept the appellant's claim or not as soon as it received the claim for.' Further at p. 642:
'The only representation made by the respondent to the applicant was one made by silence and inaction to circumstances in which it was the duty of the respondent, if it so wished to repudiate, to inform the appellant of its decision within a reasonable time.'
In so far as the defendant in the instant case is concerned, the only representation made was one of silence and inaction relying, it would seem, on the running of prescription against the plaintiff. I cannot agree with such a state of affairs for, ordinarily, where a plaintiff issues summons and the defendant enters appearance with a request for further particulars, further particulars must be supplied before the defendant it barred from pleading and if before they are supplied plaintiff bars defendant the bar would be removed. I take prescription to be a form of bar by lapse of time. If a party
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on whom it is incumbent to repudiate a claim is silent relying on prescriptive period to run its cause, is he not, by his silence,
acknowledging and acquiescing to the claim and by his silence is he not estopped from claiming prescription or rather, would prescription
not be interrupted by the period of his silence?
Hoexter JA in cause of judgment in Resisto Diary above at page 642 has quoted what Spencer-Bower Estoppel by Representation at p. 60 says about representation by silence or inaction to the effect:
"75. The main condition subject to which alone silence or inaction counts as a representation is that a legal (not a mere moral or social) duty shall have been owned by the representor to the representee to make a disclosure, or to take steps, the omission of which is relied upon as creating the estoppel. The theory is this. The parties to a transaction are entitled to assume, as against one another, omnia rite esse acta; each of them is entitled to suppose that the other has fully discharged all such obligations (if any) of disclosure or action towards himself as may have been created by circumstances. If, therefore, he received from the other no intimation, by language or conduct, of the existence of any fact which, if existing, it would have been the latter's duty, having regard to the relation between them, the nature of the transaction, or the circumstance of the case, to reveal, he has legitimate ground for believing that no such fact exists, or that there is nothing so abnormal or peculiar in the nature of the transaction, or in the circumstances of the case, as to give rise to any duty of disclosure, and to shape his course of action on that assumption; in other words, he is entitled to treat the representor's silence or inaction as an implied representation of the non-existence of anything which would impose, or give rise to, such a duty and, if he alters his position to his detriment on the faith of that representation, his representor is estopped from afterwards setting up the existence of such suppressed or undisclosed fact. The terms 'lying by1, 'standing by,' 'acquiescence; 'waiver,' 'laches' and 'encouragement' are often used, in preference to 'estoppel' for the purpose of enunciating and justifying the rule under discussion; but it is
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really one and the same doctrine which is the subject of these terminological variants.'
Following on the above quotation, Hoexter JA has said at p. 643 supra: 'The representation in the present case caused prejudice to the appellant by lulling him into a false sense of security.' Further, 'the appellant believed, justifiably, that the respondent was dealing with its claim in terms of clause 2 of the conditions of the policy and the appellant itself made no attempt to investigate or to prepare a possible defence or to attempt a reasonable settlement and after a lapse of seven months it was suddenly and unexpectedly faced with the problem of dealing with the summons itself.
The court had then come to the conclusion that the silence and inaction of the respondent constituted a representation to the appellant that the former was dealing with its claim in terms of clause 2 of the conditions of the policy and the representation induced the appellant to refrain from taking any steps to deal with the claimant's claim thus prejudicing the appellant.
Needless say this is on all fours with the instant case and that this court has found as a fact that defendant's silence for an inordinately long
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time amounts to acquiescence and defendant by silence and waiver prejudiced its own case and not having repudiated plaintiffs' case
defendant is estopped from claiming prescription.
Mr. Grungdligh for the defendant has also raised the question that plaintiffs have claimed for bodily injuries and none in respect of loss of support if I understood him well. The problem was answered in Evins v. Shield Insurance Co. Ltd, 1980(2) SA 814(A) where plaintiffs previous notice of form MVA had given adequate particulars of only the claim for bodily injuries and none in respect of the claim for loss of support. The plaintiff had, however, contended that she had a single cause of action for all her loss resulting from the accident whether by reason of her own injuries or by reason of her husband's death and that, since a debt cannot prescribe piecemeal, her summons had interrupted prescription.
The majority of the court per Corbett JA (with Joubert JA and Galgut AJA concurring) had however come to the conclusion that the claim for bodily injury and loss of support were separate and distinct claims since a claim for loss of support required proof of facts substantially different from those required by a claim for bodily injuries Joubert JA and Trollip
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JA had dissented taking a different view. Boberg though in his notes (p.515 The Law of Delict, vol. 1) brings Corbett' s judgment under severe criticism saying much as the monolithic 'once and for all' rule enunciated by Corbett JA is to be welcomed, one cannot really determine whether several claims constitute a single cause of action by comparing their facta probanda for this depends on how one defines the facta probanda. According to Corbett JA, the plaintiff had to prove bodily injury resulting in damnum, while for the other she had to prove the death of a person legally obliged to support her, causing damnum through deprivation of support. I cannot support this reasoning which appears to me to be unnecessary splitting of claims. Loss of support and bodily injury caused by vehicular accident are certainly part of the same transaction and in any event if a breadwinner suffers injury, with this goes the dependant's loss of support. Boberg in his notes above at p. 515 says a defendant's action for loss of support arises because the wrongful and negligent killing of the breadwinner constitutes an invasion of her rights, just as the infliction of personal injury upon him does for, according to Boberg, these are not separate wrongful acts, but are separate consequences of a single act (driving a motor vehicle) which the law dubs wrongful (and indeed negligent).
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Indeed in his Heads of Argument Mr. Grundlingh has pressed that (p.15) the plaintiff to succeed 'should have set out and proved the entire set as facts which give rise to an enforceable claim i.e. de facta probanda, or to put it differently, every fact which is material to be proved by the plaintiff to succeed.' And yet, because the court decided it could not decide matter on paper, it was decided to hear viva voce evidence which was adduced by plaintiffs and defendant adduced none.
Problem posed by Mr. Grundlingh by his facta probanda is that, according to him, there is no proof amongst others that the defendant via Crous was negligent for there is no evidence save hearsay by P.W.I and P.W.2 that Crous was negligent for plaintiffs' witnesses were not present when the accident occurred save what they were told and that it was obligatory or imperative to establish negligence on the part of the defendant by calling evidence for example of police who attended the scene of crime to clarity who between Crous or deceased was negligent for otherwise it is an assumption that because Crous was the driver and being a driver it follows that he was negligent.
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And yet I would have thought that Mr. Grundlingh is well aware that this is a civil case in which proof (if any) is on balance of probability and that where a plaintiff draws an inference this has to be negatived. Since the plaintiff has drawn an inference from the circumstances that the defendant was negligent, if the defence denies this, seems to me it was up to the defence to rebut the inference. I am fortified in this by Burchell in his Principles of Delict, first published in 1993 at page 105 to the effect that plaintiff bears the burden of establishing facts which prove elements of Aquilian liability though in practice it may be difficult to establish facts which establish defendant's negligence. It was said in many cases there may not be eye witnesses to the accident and the plaintiff may have to rely on drawing inference such as one of rev ipsa loquitor said to be no magical latin formula which literally interpreted is 'the facts speak for themselves' the effect of which being that an inference of negligence is drawn from the very occurrence of the accident no burden of proof shifting from the plaintiff to the defendant though the defendant, much as he is not obliged to rebut the inference by adducing evidence that he was not negligent, and yet if the defendant remains silent in the face of the inference of negligence on his part, he takes the risk of judgment being given against him. Indeed this is the stance adopted by the defendant in these proceedings by looking upon
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plaintiffs' inference of negligence as hearsay. It has been said once an inference of negligence has been drawn the defendant may offer explanation of how the accident occurred though the explanation has to be reasonable and not conjectural, see Naude NO vs Transvaal Boot and Shoe Manufacturing Co., 1938 At 379. One is also reminded of the judgment in Arthur vs Bezuidenhout and Mieny, 1962(2) SA 566(A) in which Ogilvie Thompson CJ summed up the effect of the maxim as:
'The maxim res ipsa loquitor where applicable gives rise to an inference rather than a presumption. Nor is the court ----- necessarily compelled to draw the inference-----(O)nce the plaintiff proves occurrence giving rise to the inference of negligence on the part of the defendant, the fatter must adduce evidence to the contrary. He must tell the remainder of the story or take the risk of judgment being given against him. How the defendant's evidence need to go to displace the inference of negligence arising from proof of the occurrence complained of by the plaintiff depends on facts of the particular case-----------. Mere theories or hypothetical suggestion will, of course, not avail a defendant. That is not, however, to say that the onus rests on the defendant to establish the correctness of his explanation on a balance of probabilities.'
As I have said above, the Court decided to hear oral evidence in this case and while the plaintiffs availed themselves of the opportunity by adducing evidence to prove occurrence of the accident giving rise to an inference of negligence, defendant has not availed himself of the opportunity thus risking judgment being given against him.
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There is another element in this case the Court must decide and it is whether 'Mapelaelo was deceased's wife. I do not understand Mr. Grundlingh's argument in this regard. In the first place Ramodibedi J. decided that 'Mapelaelo is deceased's wife; before Ramodibedi J. it was not contended that deceased was married to some other woman and before me there was no evidence of this other woman's form of marriage except Mr. Grundling's bare allegation.
It is not clear why Mr. Grundlingh raises the question of dualism since there is no proof of the other marriage. I am baffled because in the first place plaintiffs are claiming in terms of the statutory provisions of the Insurance Order, 1989. If Mr. Grundlingh refers to dualism in the sense of the received law or civil law and our customary law, 'Mapelaelo has not come to court under the aegis or cover of customary law, she is claiming under Insurance Statutory provisions having nothing whatsoever to do with customary law. If Mr. Grundlingh means a woman married by custom and therefore an African cannot claim at civil law, he is mistaken for the reason that 'Mapelaelo is invoking statutory provisions. Whenever and wherever it appears, the term African is misleading because it does not feature in our Constitution and Supreme law of the land where the people are not given
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racial or tribal labels being known simply as Basotho, persons and human beings. I may also add that in terms of the Marriage Act, 1974 sec. 42 thereof, although the Act applies to all marriage solemnized in Lesotho save and except marriages contracted in accordance with Sesotho law and custom, the Act nevertheless makes the aforementioned marriages and customary marriages equal in the eyes of the law and there can be no question of a woman married by custom not being eligible for a claim under the law of insurance.
Mr. Grundlingh has also taken a swipe at plaintiffs' allegation of the claim by plaintiffs' that liability flows from a reciprocal
undertaking between the Kingdom of Lesotho and the Republic of South Africa (p. 17 of Heads of Argument) saying plaintiffs have not proved such reciprocity adding, at p. 18 that 'the legal position is that a plaintiff must allege and prove that the vehicle involved was duly insured with the defendant at the time of the accident.' It is, though, common cause that the vehicle OG 16517 was not insured with the defendant. Paragraph 6 of Plaintiffs' declaration reads:
'In terms of the Reciprocal undertakings between Lesotho and South Africa, either country's insurer is liable in respect of accidents
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caused by its insured vehicles in the other country. The relevant claim is however lodged with the local insurance company of the
country in which the accident occurred.'
I have perused Mr. Ntlhoki's Heads of Argument to unearth authority for his proposition but before saying whether or not I found it would like to comment as follows: Once more, attention is drawn to the fact that, strictly speaking, the trial was before Ramodibedi J. as shown above where all pertinent issues should have been raised and in fact were raised and decided by the court reserving or postponing decision on 'prescription.' Mr. Ntlhok's application to this court was in this court's view, no more than harping on the same piazza. This being the case, this issue, like a host of other issues being raised before this court as if they are new or special pleas, these are issues that should have been raised at the trial and I look at this issue of insurance reciprocity between Lesotho and South Africa being raised before me with great skepticism and reservation for the reason that it is an issue that should have been raised at the trial and to have been decided there for the reason that it is not a fresh issue before this court. I am of the view that this is an issue that should have properly been raised at the trial. I could well be wrong and if wrong
a question arises: if the claim was sent to a wrong party the defendant herein, why did the defendant not return the claim as addressed to a wrong party instead of claiming prescriptive rights?
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Defendant appeared before Ramodibedi J and for all intends and purposes appeared to be comfortable with the procedure and jurisdiction of the court to pronounce on his rights and wrongs. In that court, the defendant appeared comfortable that plaintiff directed liability at him and all that defendant did was to challenge quantum as he did before this court. In this court's view, challenge of quantum is admission of liability save the amount challenged.
When the matter came before this court, the court felt the matter could not be decided on paper and parties were happy being directed to adduce viva voce evidence. P.W.I 'Mapelaelo confirmed what Ramodibedi J. found that she was deceased's wife and mother of the minor child Pelaelo. That in his lifetime the deceased supported her and the minor child. She also testified to the occurrence of the accident which was in any event common cause that it occurred and hence the burial and funeral expenses. Her evidence was corroborated in all material respects by the evidence of P.W.2 her father-in-law Lerata Ts'iu. She also testified she was claiming damages for herself and the minor child. It was in cross-examination the witness had been questioned whether she knew one 'Mamoretlo, and how she was married, whether divorced and the witness had expressed no knowledge of 'Mamoretlo. Mr. Ntlhoki had objected saying it is for the first time the issue
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of 'Mamoretlo is raised. To this Mr. Grundlingh had said he was merely challenging quantum as a woman other than 'Mapelaelo had been paid deceased's benefits. It was up to Mr. Grundlingh to produce evidence that a woman other than 'Mapelaelo was paid deceased's benefits. As the onus was on defendant to prove this, this court rejects out of hand that in deceased's life there was a woman or wife other than 'Mapelaelo apart from the fact that this is an issue that should have been raised before Ramodibedi J. where he found 'Mapelaelo to be deceased's wife. At this juncture the court was asked to decide whether 'Mapelaelo's status should have been raised in the first place before Ramodibedi J. and how 'Mamoretlo was married. The court reserved the questions. It was wrong for the court to have reserved the questions though in the heat of argument options sometimes are blurred. First, before Ramodibedi J the court decided 'Mapelaelo was deceased wife with no hint of'Mamoretlo. Before the court came to the conclusion that 'Mapelaelo was deceased's wife, it was up to the defendant to argue otherwise. In any event this is an issue that was decided at the trial and cannot be argued for the second time before this court. If it was the intention of the defendant to prove there was a woman or wife other than 'Mapelaelo in deceased's lifetime, it was up to the defendant to have argued the same before Ramodibedi J. and failing which defendant could
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have applied to have the issue raised before this court and not so applying since the court allowed viva voce evidence, evidence of 'Mamoretlo's status could have been led by the defendant.
It is also noteworthy that in his cross-examination of either P.W.I or P.W.2 Mr. Grundlingh confined himself to quantum and no single
question was put to them of the proprietary or otherwise of plaintiffs claiming from the defendant.
This court is worried by the fact that information which should have come to plaintiffs was withheld and suppressed leaving plaintiffs to flounder aimlessly. Issues which should have been canvassed before the trial court were not raised and issues decided by the trial court were recanvassed in a subsequent hearing thus severely prejudicing plaintiffs' case.
Having regard to the circumstances of this case, I am of the view that maxims interest rei publicae finis sit litium (it is in the interest of the public that there should be an end to litigation) and Nemo debet bis vexari pro eadem causa (no one should be sued twice on the same ground) apply. There is also under English domestic law a rule under the name of estoppel
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per run judicatam with two branches being "cause of action estoppel" which precludes a party from relitigating the existence of the same cause of action, and "issue estoppel" which precludes one from denying any matter of fact or law necessarily decided by the earlier judgment. The doctrines are not peculiar to English law for in our own law we have lis pendens and res judicata by which a pending action cannot be relitigated or a decided and final action relitigated. The House of Lords in Carl Zeiss Stiftung vs Rayner and Keeler Ltd (No.2) laid down three conditions before the doctrine can be applied namely: (1) there must be identity of the parties (in our case parties to be the same); (2) there must be identity of the subject-matter (subject-matter to be the same) and (3) the foreign judgment deciding the issue to be final and conclusive. I am of the view that in the event this court holds defendant is liable defendant armed with this judgment will encounter no problem claiming from his counterpart in the Republic of South Africa.
Mr. Grundlingh has quoted from several sources and authorities to support his case but I am not persuaded in view of the fact that some of these speak of statutory enactments to protect the ensured against unscrupulous insurers who do not respond to or repudiate claims.
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I am of the view that at common law and in ordinary mercantile transactions the ensured is sufficiently protected unless there be areas or feeling by the lawmakers that such insurable areas and interests need to be statutorily protected.
It follows that with regard to the special plea to plaintiffs' claim the special plea fails and in the result plaintiffs' claim is granted with costs.
G. N.MOFOLO
JUDGE
For the Plaintiff/Applicant: Mr. Ntlhoki
For the Defendant/Respondent: Mr. Grundlingh
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