Lesotho National Insurance Company (Pty) Ltd v Mabitsoa (CIV/T 122 of 92) [1995] LSCA 83 (14 June 1995)

CIV/T/122/92 IN T HE H I GH C O U RT OF L E S O T HO In t he A p p l i c a t i on o f: " L E S O T HO N A T I O N AL I N S U R A N CE C O M P A NY ( P T Y) L td A p p l i c a nt a nd S O O T HO M A B I T S OA R e s p o n d e nt J U D G M E NT Delivered by the Hon. Mr, Justice B. K. Molai on the ...14th day of June, 199 5."" In an action wherein the Respondent sued the applicant company, a registered insurer in terms of the Motor Vehicle Insurance Order, 1989, for payment of M51,344 as damages; interest thereon at the rate of 18% a. tempore morae; costs of suit; further and/or alternative relief, the latter has filed, with the Registrar of the High Court, a notice of motion in which he moves the court for an order framed in the following terms: "(a) That the applicant be granted leave to amend its plea in accordance with its notice of intention to amend annexed hereto as annexure "A". (b) The costs of this application be awarded to the applicant. {c) Further and/or alternative relief". The Respondent intimated intention to oppose the application. Although the founding affidavit was duly filed with the Registrar of the High Court and served upon the Respondent, no answering affidavit was filed. The founding affidavit was deposed to by Mr. Lebohang Aaron Molete, an Attorney of this court, who, inter alia, averred that on 17th March, 1992 the Respondent served upon the applicant company summons commencing a civil action, in which he claimed damages as aforesaid. The applicant immediately forwarded the summons to the deponent's firm of attorneys with a request to attend to the matter. The deponent's firm did apparently comply with the request by filing, with the Registrar of this court, a notice of appearance to defend and a plea on 2nd April, 1992 and 8th July, 1992, respectively. The deponent further averred that unfortunately the applicant's file of papers relating to the action, only reached his firm during September 1992, whereupon it became clear that the plea would have to be amended. Due to an oversight, on the part of his firm, a notice to. amend the plea was, however, served upon the Respondent only on 8th April, 1994. The amendment which the applicant sought to make in the plea was the insertion therein of a special plea of prescription resulting in the Respondent's claim being unenforceable and the summons a nullity. According to the deponent, on 12th April, 1994, the Respondent opposed the notice to amend the plea and the applicant was forced to approach this court for leave to amend. The matter was set down for hearing on 3rd May, 1994. It was, however, not placed on the roll and could not, therefore, be heard on that day. In the meantime, the Court of Appeal held, in the decision of Lesotho National Insurance Company. (Pty) Ltd vs Ts'epo Sekhesa C. of A, 36/94. . that where it had been served within the 60 days suspension period the summons would not be a nullity, but the claim would be unenforceable. For the claim to be enforceable, the summons would have to be reserved within the 2 year prescription period. In the light of the decision in Lesotho National Insurance Company (Pty) Ltd vs Ts'epo Sekhesa, supra. the applicant prepared another notice of intention to amend (referred to a annexure "A" in the present notice of motion). Annexure "A" was, on 30th March, 1995, served upon the Respondent who intimated his intention to oppose. In the averment of the deponent, the applicant was, therefore, forced to institute the present application for the aforesaid order viz. leave to amend his plea. In the notice of intention to amend the plea (annexure "A"} the applicant, inter alia, seeks to insert therein the allegations that as the summons had not, in terms of the provisions of the Motor vehicle insurance order, 1989, been served within the 2 year prescriptive period, the Respondent's claim was prescribed and, therefore, unenforceable. As it has already been pointed out earlier, no . answering affidavit has been filed by the Respondent, It can, therefore, be safely assumed that the facts disclosed in the affidavit of Mr, Molete are common cause It is clear from the facts disclosed in the founding affidavit that, following the opposition by the Respondent, what the applicant now seeks in the present application is this court's order for leave to amend the plea. The question whether or not a party, in a litigation, can amend his pleading falls, in my view, to be governed by the High. Court Rules 1980 of which Rule 33(1) clearly provides: "33(1) filed Any party desiring to amend any pleading or document, other than an in affidavit connection with any proceeding, may give notice to all other p a r t i es the his proceeding intention so to amend." of in It is not really disputed that by the document captioned "Notice of intention of amend" served upon the Respondent on 30th March, 1995, the applicant company duly gave notice to the former of its intention so to amend. The applicant company did, therefore, comply with the provisions of the above cited rule 33(1) of the High Court Rules, 1980. It was, however, argued, on behalf of the Respondent, that the applicant company had filed its plea in July, 1992. The present application to amend the plea was filed only in April 1995 i.e. some three (3) years after the plea had been filed. In exercising its judicial discretion on whether or not to grant the applicant leave to amend the plea the court must not lose sight of the inordinate delay. It is to be observed, however, that subrule (9) of rule 33 of the High Court Rules. 1980 provides: "(9) Nothing in this Rule shall be deemed to prevent any party applying to the trial court during the trial for an amendment of any pleading or document at any time before judgment, and the court on such application may grant or refuse the amendment and if (sic) granting it may make 3uch order as to costs or adjournment or both, or otherwise as it thinks fit." {my underlining) I have underscored the word "shall" in the above cited subrule (9) of rule 33 of the High Court Rules, 1980 to indicate my view that the provisions thereof are mandatory. In terms of the mandatory provisions of subrule (9) of rule 33 of the High Court Rules, supra, the applicant company was clearly entitled to apply for the amendment of its plea at any time even during the trial as long as it was before judgment. In the present case the applicant company applied for amendment of its plea prior to the beginning of the trial and, therefore, long before judgment. On the authority of rule 33 of the High Court Rules, 1980 there was nothing to prevent the applicant company from applying, as it did, for the amendment of its plea. The Respondent's argument that there was inordinate delay, between the filing of the plea and the notice to amend it, does not, in my view, advance his case. I come to the conclusion that in opposing, as he did, the applicant's notice of intention to amend the plea, the Respondent acted, in the circumstances, unreasonably. Consequently, I would grant this application with costs. The applicant company is accordingly allowed leave to amend its plea and file, within fourteen (14) days of this judgment, the amended plea. B. K. MOLAI J U D GE 14th June, 1995. For Applicant : Mr. Molyneaux For Respondent: Mr. Nathane.