Moeti v Lesotho National Insurance Group and Another (CIV/T 618 of 93) [2000] LSCA 125 (19 October 2000)

CIV/T/618/93 IN THE HIGH COURT OF LESOTHO In the matter between:- MATSABO MOETI (duly assisted by her husband) PLAINTIFF and LESOTHO NATIONAL INSURANCE GROUP LEBABO SHALE 1ST DEFENDANT 2ND DEFENDANT JUDGMENT Delivered by the Honourable Mr Justice S. N. Peete on the 19th October, 2000 On the 22nd December 1993 the plaintiff issued out summons against the defendants in which it was alleged that - "On or about the 9th January 1992 and at or near Mejametalana Dam along the Main North I Road the second defendant who was driving a motor vehicle Registration number C3444 collided with Plaintiffs son who was pedestrian and who sustained injuries and later died. 4. The said collision was due to the sole negligence of the second Defendant in the following respects - (a) He failed to take proper precautions to avoid the collision (b) He failed to apply the brakes when he could have done same to avoid the collision. 5. At the time of the said collision the said vehicles A6910 and A2203 were insured in terms of the Motor Vehicle Insurance Order 1972 (sic) with the first defendant. By reason thereof the first defendant is liable. Plaintiff has complied with the provisions of order 18 of the 1972." The declaration was most inelegant if not careless - it relies on a repealed Motor Vehicle Insurance Order No. 18 of 1972 instead of Motor Vehicle Insurance Order No.26 of 1989; the inadequate pleading in the Declaration indeed necessitated a full request for further particulars. These were supplied, but the first defendant in his plea thereto raised two special pleas - (a) (b) that the plaintiffs claim had prescribed, and that the Motor Vehicle Insurance Order No. 18 of 1972 did not apply. It was common cause that the fatal road accident in which the plaintiffs son was killed occurred on the 9th January 1992 and the claim ought to have been made under the 1989 Motor Vehicle Insurance Order and it was the provisions of this Order that had to be complied with. Though the summons were filed in the office of the Registrar of the High Court on the 22nd December 1993, these summons were only served upon the first defendant on the 6th April 1994. There was no formal application by plaintiffs attorney for condonation of late service of this process. Anyway as Kheola ACJ (as he then was) remarked in Mokhethi vs LNIC CIV/APN/57/86 in Lesotho, unlike in South Africa, there is no provision in the Motor Vehicle Insurance Act 1972 (1989) giving the court the power to condone the late service of process or claim (Chiliza vs Commercial Union Assurance 1976 (1) SA 917). It was also common cause that the MVI 13 claim had been timeously was served upon the first defendant on the 22nd April 1993. It is upon these dates that the issue of prescription must be determined and indeed, I should say, calculated. In my view an attorney who receives instructions from a client to lodge a claim under the Motor Vehicle Insurance Order 1989 must acquaint himself with the relevant provisions and indeed with the plethora of authorities thereunder. A reasonably prudent attorney should not, in my view, issue summons if he is aware that the claim has already prescribed. To issue summons upon a prescribed claim amounts to professional negligence and indeed the attorney should be upon the dismissal of the claim be mulcted with costs de bonis propriis. As I have already pointed out, the attorney in this case knew the date of accident upon which the claim arose as being the 9th January 1992. In fact he specifically alleged this date in his declaration. It is common cause that the claim was timeously served upon the first defendant being the insurer on the 22nd April 1993. The relevant provisions of the Order read thus- "10.(1) The right to claim compensation under this Order from the insurer shall become prescribed upon 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 Section 12 hereof." (My underlining) Section 12 reads in part- "(1) (2) No claim in terms of this Order shall be enforceable by legal proceedings commenced by a summons served on the insurer before the expiry of a period of 60 days as from the date on which the claim was send or delivered by hand as the case may be to the insurer as provided for in section 10." My calculation of the dates gives the date of expiry as 9th March 1994 assuming the prescription was suspended during the period 22nd April to 22nd June 1993. It was the duty of the attorney to have served his summons anytime during the period 22nd June 1993 to 9th March 1994 ( a period of about nine months). The face of the summons shows that they were timeously filed in the office of the Registrar on the 22nd December 1993 but were only served upon the first defendant on the 6th April 1994 - that is about a month after the claim had expired on the 9th March 1994. It is clear therefore that when the summons were served upon the first defendant the right to claim compensation under the Motor Vehicle Insurance Order had become prescribed; as my Brother Ramodibedi J. aptly put it- "The service of the summons, not its issue, is decisive in determining whether prescription begins to run." (Khuto v LNIC & Another - CIV/T/65/91). The exemption provision (Section 11) having been not been pleaded by the plaintiff, it is difficult to find favour with Mrs Kotelo's argument that the sections 10 and 12 of the Motor Vehicle Insurance Order unconscionably tie the hands of the plaintiff. The plaintiff's attorney was free, in my view, to issue and serve summons upon the first defendant after the 22nd June 1993. He negligently failed to do so until the right to claim prescribed on the 9th March 1994. The attorney might have interpreted these sections wrongly or read between their lines. In this case Section 12 (3) has no application because the first defendant neither repudiated liability nor made a settlement offer during the sixty day period of suspension. There is no duty cast upon the first defendant to either repudiate or offer settlement during the sixty day period, (cf Moatshe vs Commercial Union Assurance co. of SA Ltd - 1991 (4) SA 372). The cases cited by Mrs Kotelo only show that in South Africa, Parliament has introduced a radical change with regard to the running of prescription of a claim for compensation under their Act. The position now is that if the insurer does not object to the validity of the claim within the prescribed 60 days the claim cannot become prescribed until the insurer delivers a notice in which he repudiates liability or makes an offer of settlement. The case of Ngantweni vs National Employer's General Insurance Co Ltd - 1991 (2) SA 645 makes this very clear. In South Africa the claimant is now placed in a more secure position than he has ever enjoyed in that his claim is definitely protected against prescription and the onus is cast on the insurer to either repudiate the claim or offer settlement before he can become entitled to raise the defence of prescription against the claimant. We however do not have similar provisions in our Motor Vehicle Insurance Order. As it stands to day our Order does not give much protection to third parties and indeed harmonising it with its South African counterpart is not only highly desirable but long overdue and the Law Society of Lesotho is competent to initiate the desired process of reform of the law on this aspect. In the recent Court of Appeal case of Khalapa vs Commissioner of Police and Attorney General C of A (civ) No. 13/1999 delivered on 13th October 2000, Gauntlett JA remarking obiter about the constitutionality of prescription clauses says ".... 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" (cf sections 12 (8) and 19 of the Constitution of Lesotho - 1993). I can only state that our Court of Appeal has authoritatively stated that the claim in terms of the Motor Vehicle Insurance Order 1989 prescribes if summons is not served within two years plus 60 day suspension period after the date on which the accident occurred (Lesotho National Insurance Company (Pty) Ltd vs Sekhesa - C of A (civ) 36/94; Khuto v LNIC Ltd (supra) - CIV/T/65/91; Tauhali v LNIG - CIV/T/298/94, See also Hodes - The Law of Compulsory Motor Vehicle Insurance in South Africa - 3rd Ed 1982 p. 271. Attorneys who undertake insurance claims on behalf of lay clients must, I repeat, must exercise due professional diligence and vigilance and carefully diarize the important dates in order not to frustrate their clients' claims. These lay clients are not familiar with the intricate provisions of the insurance law and are entitled to place their trust upon the practitioners. In my view the requirements under sections 10 and 12 of the Order are clear and cannot be misinterpreted if proper diarizing is made by a conscientious attorney handling the claim. In this case the summons though inelegant were timeously made and filed in court in December 1993 but were only served in April 1994 - some four months later! It was the duty of the attorney to have seen to it that the service was effected upon the insurer before the 9th March 1994; this he failed to do; and unfortunately the court cannot come to his assistance. This is a very sad and unfortunate case in which the otherwise valid claim of the plaintiff has been foiled by the negligence of the attorney. The special plea is therefore upheld and the claim is dismissed with costs. JUDGE For Plaintiff: Mrs Kotelo For Respondents: Mr Grundlingh