Lephole v Lesotho National Iinsurance Company and Others (CIV/T 601 of 92) [1998] LSCA 29 (17 March 1998)

CIV/T/601/92 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: N T H A T I SI ' M A P H E N E NE L E P H O LE P L A I N T I FF and 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 N K O P A NE M O T S O A RI R A P A KA M A K O L O A NE 1ST D E F E N D A NT 2 ND D E F E N D A NT 3 RD D E F E N D A NT J U D G M E NT To be delivered by the H o n o u r a b le M r. G . N. M o f o l o, on the 17th d ay of M a r c h. 1 9 9 8. In this case the plaintiff issued s u m m o ns claiming Ml 6 , 6 9 9 - 0 0. (a) against S e c o nd D e f e n d a n ts jointly a nd severally the o ne p a y i ng the other to be absolved. A L T E R N A T I V E LY ( b) against First a nd T h i rd D e f e n d a n ts jointly a nd severally the o ne p a y i ng the other b e i ng a b s o l v e d. T he c a se r e v o l v ed a r o u nd 3 rd Party I n s u r a n ce c l a im in t e r ms of M o t or V e h i c le I n s u r a n ce O r d er N o. 18 of 1 9 7 2. In h er declaration plaintiff alleged that s he h ad c o m p l i ed w i th p r o v i s i o ns of O r d er N o. 18 of 1 9 7 2. W i th r e s p e ct this allegation is rather tersely a nd r o u n d ly c o u c h ed m a k i ng it difficult to s ay exactly in r e s p e ct of w h at provision of the A ct plaintiff h as c o m p l i ed w i t h. T he m a t t er h ad b e en d e f e n d e d, an e x c e p t i on to the s u m m o ns m a de a nd s u m m o ns a m e n d ed accordingly. In his p l ea 1 st D e f e n d a nt h ad m a de a special p l ea c o u c h ed as f o l l o w s: T he first D e f e n d a nt p l e a ds specially that Plaintiff h as failed to c o m p ly w i th the provisions of Section 9 of the M o t or V e h i c le I n s u r a n ce O r d er 26 of 1 9 89 in o ne or m o re of the f o l l o w i ng respects:- 1.1 S he r e f u s ed or failed to s u b m it to the First D e f e n d a n t, together w i th h er claim for or within a r e a s o n a b le p e r i od thereafter a nd w h i le s he w as in a position to do s o, an affidavit in w h i ch particulars of the a c c i d e nt that g a ve rise to the c l a im w e re fully set out. 1.2 S he refused or failed to furnish the First D e f e n d a nt w i th c o p i es of all statements a nd d o c u m e n t s, s u ch as statements of witnesses, within a r e a s o n a b le period, after h a v i ng c o me into p o s s e s s i on thereof. 1.3 S he refused or failed to furnish in writing within a reasonable period, an affidavit setting o ut the particulars of the occurrence or the statements of a ny e y e - w i t n e s s es w h i ch s he m i g ht h a ve h a d. 1.4 S he refused or failed to furnish within a r e a s o n a b le period, further particulars of the o c c u r r e n ce as required by the First D e f e n d a n t. 1st D e f e n d a nt h as said for failure to s u p p ly particulars required the said 1st D e f e n d a nt is e x c u s ed f r om liability in t e r ms of provisions of the A ct a d v e r t ed to a b o v e. T he court a s k ed counsel for the 1st d e f e n d a nt several questions to elucidate the intractability of the p r o b l e m. O ne of the questions w as w h e t h er it w as directory or p e r e m p t o ry that an affidavit should be supplied as requested a nd f o l l o w i ng on this a nd especially if the directions are p e r e m p t o ry w h e t h er failure to s u p p ly an affidavit closed the plaintiffs d o o rs by r e a s on of a foreclosure clause, prescription or other factors shutting the plaintiff out altogether. D e f e n ce counsel's reply w as that the provisions w e re p e r e m p t o ry a nd c l o s ed the plaintiffs d o or altogether a nd the court c o u ld not, b e c a u se of the alleged failure or inability to supply the affidavit o r d er that it be supplied for rectification c an only be d o ne w i t h in the p e r i od of prescription a nd n ow that the prescriptive p e r i od h ad l a p s ed there c o u ld be no rectification a nd if the special p l ea s u c c e e d ed that w o u ld be the e nd of the matter a nd there c o u ld be no resuscitation. A c c o r d i ng to c o u n s el for the 1st d e f e n d a n t, it w as n ot e v en n e c e s s a ry for the plaintiff to s u b m it the affidavit for it c o u ld be s u b m i t t ed by a n y b o dy a c q u a i n t ed w i th the accident. He s a ys it is b i n d i ng that the M . V . A. f o rm be a c c o m p a n i ed by an affidavit a nd if for s o me r e a s on c l a i m a n ts h a ve b e en p a id w i t h o ut s u ch an affidavit, w h a t 's n ot l aw c a n n ot p ut w h a t 's l aw o ut of office. M r. G r u n d l i n gh h as h a n d ed in a letter f r om plaintiff's attorneys declining to furnish the affidavit. He s a ys the latter d o es n ot a m o u nt to a failure b ut refusal to c o m p ly w i th the provisions of the O r d e r. S e v e r al c a s es w e re q u o t ed in s u p p o rt including M o s c o v i tz v. C o m m e r c i al U n i on A s s u r a n ce C o m p a n y. 1 9 92 ( 4) SA 1 92 at 1 98 a nd 1 99 - a c a se also q u o t ed by c o u n s el for the plaintiff c l a i m i ng to s u p p o rt the plaintiff in all material respects. C o u n s el for the Plaintiff h as also q u o t ed f r om U n i on a nd S o u t h - W e st A f r i ca Ins. C o. V. Fantiso, 1 9 81 ( 3) SA 2 93 ( A D .) a nd d i s a g r e es s a y i ng the p r o v i s i on of the O r d er are directory if the court finds there w as no u n r e a s o n a b le failure. C o u n s el says it is w r o ng to say plaintiff failed for in fact a c c o r d i ng to h er letter s he w as 'not able' to furnish the affidavit. S he s a ys barring m a la fides n o n - c o m p l i a n ce w i th the rules is a l l o w e d. S he further s u b m i ts that plaintiffs c a se is distinguishable f r om M o s c o v i t z 's c a se for it is n ot refusal but inability to c o m p ly w i th the r e q u i r e m e n t s; - s he says this r e d u c ed to its l o w e st t e r ms m e a ns it w as i m p o s s i b le for the plaintiff to s u p p ly the affidavit. S he h a n ds in a letter of 6 J a n u a r y, 1 9 93 f r om 1st d e f e n d a n t 's claims department s h o w i ng that the matter h ad not e n d ed as negotiations w e re still in p r o g r e ss a nd as the letter w as not c o u n t e r m a n d ed plaintiff w as left in an air of e x p e c t a n c y. Ms K o t e lo further says it is totally w r o ng to s ay there c an be no rectification for the claim h as prescribed as this is not in a c c o r d a n ce w i th the content a nd spirit of the C o m m e r c i al U n i o n 's c a se a b o ve - she s a ys there is no t i me limit for the statute is restrictively interpreted a nd w h a t e v er is c l a i m ed as c o v e r ed by the statute m u st be reflected in the statute. S he says the l aw a nd p r e c e d e nt affords 3 rd party claims the widest possible protection a nd a claim m ay not be d i s m i s s ed on w h at is perceived to be a technicality for l a ws affecting the claims are also to be restrictively interpreted. S he concludes by saying n o w h e re d o es the statute penalise or foreclose for the n o n - s u p p ly of an affidavit. In reply Mr Gruntlingh for the d e f e n d a nt s a ys in a ny e v e nt ordinarily the plaintiff w o u ld be expected to explain, as a matter of courtesy, w hy s he w as not able to supply the affidavit as is in l aw required for o n e 's b e h a v i o ur h as to be explained. He s a ys the claim as it stands is i n c o m p l e te a nd therefore invalid a nd there c an be no p a y m e nt on an inchoate contract. He s a ys plaintiffs inability to furnish the affidavit is to be interpreted as a failure, refusal, in the a b s e n ce of a r e a s on to h a ve said w h at the failure w as d ue to. T he plaintiff s h o u ld h a ve t a k en the court into her confidence a nd the special plea c a n n ot be r e g a r d ed as a technicality. He s a ys the section w as brought in to protect insurance c o m p a n i es in similar situations arising - for the proposition he h as q u o t ed S e k h o n de v. L e s o t ho National Insurance C o m p a ny (Pty) L i m i t ed - C. of A. ( C I V) 3 / 1 9 8 1. T he court h a v i ng heard the application on 26 February, 1 9 98 reserved j u d g m e nt to 12 M a r c h, 1 9 98 a nd the following is the court's j u d g m e nt m a de on 17 M a r c h, 1 9 98 though, o w i ng to a continuing criminal trial on the 12 M a r c h, 1 9 98 the j u d g m e nt w as p o s t p o n ed to 17 M a r c h, 1 9 9 8. In this application it appears crucial questions to be a n s w e r ed by the court are: (1) w h e t h er our o wn statute prescribes the furnishing of an affidavit in 3rd Party claims; (2) w h e t h er the requirement u n d er the statute is p e r e m p t o ry or directory; (3) w h e t h er plaintiff or her legal representative in saying: ' we are unable to supply the affidavit y ou require' this a m o u n t ed to a refusal or failure to furnish the affidavit (4) w h e t h er b e c a u se of the failure or refusal to supply the affidavit the court h as no choice but to close all d o o rs a nd a v e n u es on the plaintiff. W i th regard to (1) a b o v e, Section 9 of the of the Motor Vehicle Insurance Order, T he insurer shall not be obliged to c o m p e n s a te a ny p e r s on in terms of this O r d er for a ny loss or d a m a g e. (d) suffered as a result of bodily injury to a ny p e r s on w h o: (iv) the s u b m it u n r e a s o n a b ly refuses or fails to insurer to t o g e t h er w i th his c l a im f o rm as prescribed by regulation, or w i t h in a r e a s o n a b le p e r i od thereafter a nd he is in a position to do s o, an affidavit in w h i ch particulars of the a c c i d e nt that g a ve rise to the c l a im c o n c e r n ed are fully set out; M r. G r u n t l i n gh h as said the c o n t e xt in w h i ch the w o rd 'shall' h as b e en u s ed in the statute m e a ns strict c o m p l i a n ce w i th the statute. M s. K o t e lo h as also said provisions of the statute are to be restrictively interpreted. A c c o r d i ng to the O x f o rd Illustrated Dictionary - 2 nd E d ., the w o rd 'shall f o r ms m o o ds e x p r e s s i ng in first p e r s o n: s i m p le future action so that if I s ay I 'shall' do this a nd that, I am m e r e ly expressing simple future action like 'I shall be s e e i ng y ou _' w h i c h, to m e, s o u n ds like a future w i s h; it is said in other p e r s o ns it e x p r e s s ed a c o m m a nd a nd in all o t h er p e r s o ns an obligation, intention, necessity a nd so on a nd so forth. T he q u e s t i on is w h e t h er in the c o n t e xt in w h i ch it is u s ed in the o r d er it i m p l i es a c o m m a nd or an obligation. As the statute s a ys 'the insurer shall n ot be o b l i g ed ' the v i ew of this court is that 'an e m p l o y e r' is ' o t h er p e r s o n s' a nd a c c o r d i n g ly that the c o n t e xt in w h i ch 'shall' is u s ed by the legislation d e n o t es a ' c o m m a n d '. To A u s t in ( T he P r o v i n ce of Jurisprudence D e t e r m i n ed (ed. H a r t) a nd his I d ea of L a w ), the l aw is a c o m m a nd a nd c o m m a n ds w e re s e en by h im as e x p r e s s i o ns of desire given by a superior to an inferior (in this c a se P a r l i a m e nt to t h o se affected by its l a w s ). T he English Pocket Thesaurus by Collins or w h at is colloquially referred to as the ' w o rd finder' equates c o m m a n ds to, a m o n g st others, as: compulsion, injunction, d e m a n d, edict, charge, ultimatum, while the English Dictionary referred to a b o ve refers to a c o m m a nd inter alia, as: order, mastery, to be s u p r e m e. It is to be recalled as Ms Kotelo has correctly submitted that statute l aw differs f r om the c o m m on l aw in that statutory implications are to be restrictively construed. M o r e o v e r, considerations of equity a nd reasonableness do not f o rm part of the statute l aw unless they h a ve b e en incorporated or enshrined into the statute b o o k; therefore, unless these c o m m a n ds are o b e y e d, there is sanction for their disobedience m ay be visited by punishment. Consequent to the reasoning above, it follows that the requirement to furnish an affidavit is, under the statute, peremptory. Considerations of (3) a nd (4) a b o ve w e re dealt with in several leading cases to be reviewed by the court infra. In M o s k o v i tz v. C o m m e r c i al U n i on A s s u r a n ce C o. of SA Ltd, 1 9 92 SA 192 ( W . L . D) section 7 (2)(b)(i) similar in all respects to our section 9 (d)(iv) a b o ve w as at stake. T he plaintiff h ad b e en unable to furnish an affidavit f r om his personal k n o w l e d g e, that is personal recollection of the collision. A l t h o u gh the court h ad found the requirement under 7 (2)(b)(i) to furnish an affidavit w as directory, it w as held as it w as not required of the plaintiff to furnish information f r om his personal k n o w l e d ge in that parties acquainted with the accident could also provide such an affidavit, that plaintiffs claim of inability to furnish the affidavit for non-recollection of the collision w as without foundation and accordingly the action w as dismissed for non-compliance with regulation 7(2)(b)(i) Just to impress u p on the necessity for furnishing an affidavit, in the s a me Moscovitz case above, it w as said the affidavit w a s, like a medical report, directory though an affidavit w as to be distinguished f r om a medical report in that it is a statement on oath promulgated in terms of the Justice a nd P e a ce and C o m m i s s i on of O a th Act. It w as also said the l aw as to providing an affidavit w h i ch is a statement in writing on oath w as enacted mainly for the benefit of the M . V . A. fund and appointed agents a nd as B u r m a n, A. J. said at p p . 1 98 - 9: ' T he purpose of the section is to ensure that before being sued an appointed agent will be informed of sufficient particulars about the claim and will be able to settle or c o m p r o m i se it before costs of litigation are incurred (see Nkisimane and other v. Santam Insurance C o. Ltd, 1978 (2) SA 430 (A) at 434 F - G - 435 H a nd the Guardian National Insurance Co. Ltd v. Van der Westhuizen 1990 (2) SA 20 © 1990 (2) SA 204 (C)It was said the purpose was also to enable the appointed agent to inquire into the claim a nd to invite, guide and facilitate such investigation.' (see also Constantia Insurance C o. Ltd v. Nohamba, 1986 (3) SA 27 (A) At 3 9 G .' In the course of the j u d g m e nt it w as also said an affidavit is a s o l e mn document and ensures that its contents h a ve a decree of accuracy and can be relied upon. According to the learned judge the Legislature intended that these objects a nd purposes be given a dimension of certainty. From the Moscovitz judgment is appears the affidavit is treated as the direct and certain evidence of the plaintiff without which, I may venture to add, the insurance company would not be enabled to meet its commitment to pay. It is also worth emphasising that in Moscovitz case above it was also emphasised 'total failure' to comply can never amount or be considered to be substantial compliance. In Union and South-West Africa Insurance Co. Ltd v. Fantiso, 1981 (3) SA 293 (A) at 301F it was said there must be a consideration of elasticity and reasonableness in the application of S. 23 © (ii) and (iii) where at 301B it was said: 'The word 'refuses' implies a specific verbal or written refusal. Having regard to the context of the Act and of S.23 itself, the word 'fails' in © (ii) implies more than the mere omission to furnish copies of reports. To hold otherwise would create an injustice which the Legislative could not have intended. In view of the severity of the penalty, a final loss of claim, one has to consider the failure to furnish copies of report in a restrictive manner, restrictive in the sense that a court will not deprive plaintiff of his right to claim compensation unless he can be said to have obstructed the insurer from getting the information which he is entitled to. As the object of the section is to allow the insurer to get information, forfeiture of plaintiffs claim will only be allowed, in my view, if the information is wilfully withheld after a request is m a de or if the request is deliberately ignored.' As I h a ve already s h o wn a b o v e, it w as said the plaintiff h ad wilfully w i t h h e ld an affidavit, or h as at least deliberately i g n o r ed the r e q u i r e m e nt to furnish o ne a nd he h as obstructed the insurer f r om getting the information he w as entitled to. Or at least his attorney w ho acted as his authorised a g e nt ( ) h ad d o ne so for, as the affidavit did not h a ve to be m a de by the plaintiff in that the particulars m ay n ot be to the k n o w l e d ge of the plaintiff or claimant, the contention that plaintiffs inability to furnish an affidavit f r om his personal k n o w l e d ge of h ow the collision arose e x c u s ed h im f r om furnishing t h em w as w i t h o ut foundation. I m ay a dd that the protection of the insurer refers, a c c o r d i ng to the a b o ve j u d g m e n t s, to a case w h e re a plaintiff or claimant h as m i s r e p r e s e n t ed facts as to the cause of accident m a k i ng it look like he w as the innocent party w h e n, in fact, he w as the guilty party. It is cases like these w h e re the insurer is protected a nd M s. K o t e lo h as submitted that in the present inquiry the plaintiff h ad not c h e a t ed but w as m e r e ly a casualty of an accident of not her m a k i ng a nd it w as a c c o r d i n g ly u n h e a rd of to punish her simply b e c a u se she h ad not submitted or furnished the required affidavit. I m ay a dd that f r om a reading of the c a s es it a p p e a rs it is failure to furnish the affidavit that is punishable for in the event the insurer is obstructed f r om d e c i d i ng on his option to p ay or not to p ay a nd as M r. Gruntlingh s u b m i t t e d, the transaction b e i ng i n c o m p l e t e, there is no w ay the insurer c an p a y. A related question is w h e t h er the plaintiff or claimant c an eat his c a ke a nd h a ve it or, in other w o r d s, h a ve another bite at the cherry. B e f o re this p o s er is answered, perhaps it is time to deal with implication of Sekhonde v. Lesotho National Insurance Corporation, LAC 1980-84 p. 184. The case concerned damages arising from an accident in which a passenger was injured when motor vehicles collided. The question was whether the submission of a medical certificate instead of properly completed medical report as prescribed was in compliance with sec.4 of the Motor Vehicle Insurance Order, 1972. The trial judge Mofokeng, J (as he then was) had held there was no compliance and on appeal per Maisels, P. it had been held there was compliance. According to Maisels, J. P. the reason to consider whether there has been substantial compliance is based on a number of principles as was said in Nkisimane's case, supra at 434F - G and the authorities therein cited, namely; 'to ensure that, before being sued for compensation, an authorised insurer will be informed of sufficient time so as to be able to consider and decide whether to resist the claim or to settle or compromise it before any costs of litigation are incurred.' And as pointed out in Mutual Insurance Association Ltd. v. Gcanqa, 1980 (1) SA 858 (A) at 865: 'obviously in order to consider the claim properly the insurer may also have to investigate it. MV 1 13 is also designed to invite, guide and facilitate such investigation.' On p. 187 of Sekhonde's case Maisels, J. P. has also pointed out that in G c a n q a 's case at 8 6 5 E, the general object of the A ct is to afford to third parties the widest possible protection by w ay of c o m p e n s a t i on for a ny loss sustained by t h em for bodily injuries or death of others resulting f r om the negligent or u n l a w f ul driving of m o t or vehicles. T he logic in either N k i s i m a n e 's or G c a n q a 's c a se c an equally be applied to the furnishing of an affidavit t h o u gh in this court's v i ew by r e a s on of an affidavit having to be on oath its furnishing appears to be on a higher scale than the furnishing of a m e d i c al report or for that matter the M . V . I 13 itself T a k i ng into consideration the courts r e m a r ks a b o v e, n o te h as to be t a k en of S c h u t z, J. A.'s r e m a r ks at p. 1 91 A - J a b o ve in S e k h o n d e 's c a se that:- A nd I think that the correct a p p r o a ch for a C o u rt is to s e ek to place itself in the position of a bona-flde insurer w ho s e e ks to m a ke intelligent a nd constructive u se of the information supplied, bearing in m i nd also the difficulties w h i ch the claimant m ay h a ve in giving full information in a particular case. If this is to be the a p p r o a c h, it f o l l o w s, in my v i e w, that there are limits to saying that the insurer should m a ke his o wn investigations, b a s ed u p on s u ch information as the claimant m ay h a ve provided. Investigations often h a ve to be m a de by the b o na fide insurer, w h e t h er there is an exact c o m p l i a n ce w i th the prescribed f o r ms or not (I h a ve underlined a nd u n d e r s c o r ed the w o rd ' f o r m s ' ). A g a in at p.191J: O ne of the p u r p o s es of sec. 14 is to place the insurers in a position to do just that. B ut it w o u ld be quite w r o n g, in my v i e w, to c o n d o ne the omission by the complainant of such information as in a particular c a se is reasonably n e e d ed by the insurer to m a ke an intelligent start to his assessment and investigation. If the approach w e re otherwise it might in s o me cases a m o u nt to treating sec. 14 a nd the supporting subordinate legislation as pro n on scripto. Noticeably, sec. 14 of the O r d er w as treated as directory like in Moscovitz's case a b o ve w h e re an affidavit like a medical report w e re treated as directory. As I have said above, speaking for m y s e lf I w o u ld h a ve thought by using the term 'shall' in the context in w h i ch it w as used it w as intended that the provision should be imperative m an directory? A nd yet in Nkisimane's case supra at 4 3 3H - 4 3 4B it w as stated as follows:- 'Preliminary I should say that statutory requirements are often categorised as 'peremptory' or 'directory' T h ey are w e l l - k n o wn concise, and convenient labels to use for the purpose of differentiating b e t w e en the t wo categories. B ut the clear cut distinction b e t w e en t h em (the former requiring exact compliance a nd the latter merely substantial compliance) n ow s e em to h a ve b e c o me s o m e w h at blurred. Care m u st therefore be exercised not to infer merely from the case of s u ch labels w h at degrees of compliance is necessary a nd w h at the c o n s e q u e n c es are on n on or defective compliance. T h e se m u st ultimately d e p e nd u p on the proper construction of the statutory provision a question, or, in other w o r d s, u p on the intention of the lawgiver as ascertained from the language, scope, and purpose of the enactment as a whole and the requirement in particular (see the remarks of van der Heever, J. in Lion Match Co. Ltd v. Wessels, 1946 0. P. D. 376 at 380). This court has contrasted and compared the rights of the insurer and those of the claimant bearing in mind difficulties the claimant may have in giving full information and that investigations have to be made by a bona fide insurer whether or not there is compliance with the prescribed forms; and more particularly the protection the section gives to claimants for bodily injury or death, bearing in mind that omission by the claimant to provide necessary information may not be condoned plus what was said in Moscovitz's case supra that total failure to comply can never amount or be considered to be substantial compliance'; the court having found that the furnishing of an affidavit is 'peremptory', the only question this court has to ask itself is whether there is substantial compliance with the rules or no compliance. This apart, it appears that the attorney who dealt with the plaintiffs matter was probably influenced by ignorance of what was at stake and required of the plaintiff. This court hates punishing clients for the faults of their attorneys. Be this as it may, the question remaining to be answered is whether the plaintiff can be allowed to file an affidavit in default of the affidavit she should in the first place have filed. Rule 8 sub-rule (11) of the Rules of court says: Within seven days of the service upon him of the answering affidavit aforesaid the applicant may deliver a replying affidavit. Sub-rule 12 No further affidavit may be filed by any party unless the court in its discretion permits further affidavits to be filed. T h is court is of the v i ew that if the plaintiff s u f f e r ed a h a n d i c ap by n o n- c o m p l i a n ce w i th the rules pertaining to t he furnishing of an affidavit, a nd t he plaintiff w as d e s i r o us of filing s u ch an affidavit in retrospect, t he plaintiff s h o u ld h a ve a s k ed this court for leave to file s u ch an affidavit. T h e re b e i ng no l e a ve to file s u ch an affidavit, o ne m i g ht s ay it d o es n ot b e h o ve this c o u rt to m a ke s u ch an o r d er on its o wn m o t i o n. B ut this c a se h as to be distinguished f r om c a s es w h e re a plaintiff in a m o t or collision w as a driver a nd he defaulted on furnishing an affidavit for fear of g r a ve repercussions; or h a v i ng filed s u ch an affidavit lied or m i s r e p r e s e n t ed facts. It d o es n ot s e em that the plaintiff w ho w as an o r d i n a ry c o m m u t or h ad a ny a xe to grind in the accident e x c e pt that there w as an o m i s s i on w h i ch the court c an h a r d ly label m a la fides. Mr G r u n t l i n gh h as a r g u ed that there is no w ay this c o u rt c an a l l ow plaintiff to file an affidavit b e c a u se the action h as p r e s c r i b e d. 1 do n ot think so for in this court's v i ew prescription applies to w h at w as n ot d o ne b e f o re it c o m es into operation. W h e re prescription c o m es into effect w h en a fact h as b e en realised a nd f o r ms part of the p r o c e e d i n gs it c a n n ot be said that t he fact h as p r e s c r i b e d. An affidavit w as s o u g ht b e f o re the prescriptive p e r i od r an a nd t h o u gh n ot f u r n i s h ed f o r m ed part a nd parcel of p l e a d i n gs that h ad n ot p r e s c r i b e d. N o t w i t h s t a n d i ng the fact that the c l a im is b a s ed on a nd f l o ws f r om statutory p r o v i s i o n s, I do n ot think that rules of natural justice a nd fair p l ay a d m it of a situation f a c ed by t he plaintiff w h o, a l t h o u gh s he h as c o m p l i ed in o t h er r e s p e c t s, there h as b e en no c o m p l i a n ce in others. As I h a ve said, n e c e s s a ry as the furnishing of an affidavit is, b e c a u se its non-furnishing is n ot m o t i v a t ed by m a l i ce a nd it c a n n ot be said that the 1st d e f e n d a nt is p r e j u d i c ed by its n o n - f u r n i s h i ng h a v i ng r e g a rd to other information s u p p l i ed the 1 st d e f e n d a n t, a nd t he fact that it c a n n ot be said t he i n f o r m a t i on w as wilfully w i t h e ld or deliberately i g n o r e d, v i e w i ng the c a se as a w h o l e, this court finds there w as substantial c o m p l i a n ce w i th t he rules. A c c o r d i n g ly the 'special p l e a' is n ot g r a n t ed a nd it is d i s m i s s e d. It is, h o w e v e r, o r d e r ed that costs be c o s ts in the action. G . N . M O F O LO J U D GE 16th M a r c h, 1998. F or the Plaintiff: F or the D e f e n d a n t s: Mr G r u n t l i n gh M s. K o t e lo