Masupha v Lesotho National General Insurance Co. Ltd. (CIV/APN 136 of 97) [2000] LSCA 50 (21 August 2000)

CIV/APN/136/97 IN T HE H I GH C O U RT OF L E S O T HO In the matter between:- P I US T E B O HO N T JA M A S U P HA A P P L I C A NT vs L E S O T HO N A T I O N AL G E N E R AL I N S U R A N CE C O. L T D. R E S P O N D E NT J U D G M E NT Delivered by the H o n o u r a b le Mr Justice S. N. Peete on the 21st A u g u s t, 2 0 00 In this application, the applicant prays for an order in the following terms:- " 1. C o n d o n i ng failure of applicant to c o m p ly w i th M o t or V e h i c le Insurance O r d er 1 9 89 (sic 1 9 7 2) especially section 1 0 ( 1) thereof; 2. G r a n t i ng applicant leave to sue the r e s p o n d e nt for c o m p e n s a t i on as a result of a m o t or accident w h i ch resulted in the fatal death of applican1sts wife. 3. C o s ts of suit only in the event of opposition. 4. G r a n t i ng applicant further and/or alternative relief. In his founding affidavit attached to the Notice of M o t i o n, the applicant alleges that his wife w as killed in a road accident that occurred on the 22nd April 1 9 89 at Ha ' M a s a na between m o t or vehicles Y 8 7 7 61 a nd C 1 0 5 2. It is clear that the M o t or Vehicle Insurance Order N o . 26 of 1 9 89 only c a me into operation on the 1st J a n u a ry 1 9 90 (section 1 thereof); w h en therefore the fatal accident occurred the M o t or Vehicle Insurance Order N o . 18 of 1 9 72 w as still operative. T he applicant therefore has relied and sought to c o m p ly with the provisions of a l aw that did not exist w h en the claim arose. E v en though this incorrectness w as raised by the respondent in his answering affidavit (paras 4 and 6 ), the applicant still persisted his replying affidavit to pursue application under the 1989 Order. On this aspect Mr G r u n d l i n gh submits that the application be dismissed summarily as being bad in law. Section 19 (2) of the 1 9 89 Order reads:- "(b) the provisions of the M o t or Vehicle Insurance Order of 1 9 72 shall continue to apply with reference to claims for compensation and to liability for compensation in respect of loss or d a m a ge w h i ch arose prior to the c o m m e n c e m e nt of this Order." T he question is whether the founding affidavit and Notice of M o t i on are b ad in law such that they do not disclose a cause of action. Herbstein a nd v an W i n s en - T he Civil Practice of the S u p r e me Court of South Africa (4th E d) 1 9 97 p. 3 64 has this to say: "This supporting affidavits m u st set out a cause of action. If they do not, the respondent is entitled to ask the court to dismiss the application on the g r o u n ds that it discloses no basis on w h i ch the relief c an be granted" Mr G r u n d l i n gh submits that if the applicant is replying u p on the provisions of the 1 9 72 Order, his N o t i ce of M o t i on a nd supporting affidavits should h a ve contained averments to m a ke that clear V an d er M e r we vs S u id A f r i k a a n se N a t i o n a le T r u st en A s s u r a n si M a a t k a p py B pk - 1 9 47 (2) SA 4 40 at 4 4 6; G u m e de vs A f r i c an G u a r a n t ee a nd I n d e m n i ty C o m p a ny L td 1 9 52 (3) SA 4 5 7. T he present application as it therefore stands on these papers d o es not plead the insurance obligation in terms of the 1 9 72 M o t or Vehicle Insurance O r d er w h i ch w as still operating w h en the accident occurred. This incorrectness should h a ve b e en rectified at least in the - replying affidavit but this w as not d o n e. I w o u ld indeed feel inclined to dismiss the application on that g r o u nd alone; but I h a ve c h o s en to deal w i th the m a in issue of w h e t h er this court has p o w er u n d er the 1 9 72 M o t or V e h i c le Insurance A ct to c o n d o ne the late filing a nd service of s u m m o ns in the circumstances of this case. A s s u m i ng that the M o t or Vehicle Insurance O r d er 1 9 72 h ad b e en relied u p o n, it is pertinent to observe that this O r d er did not give the court p o w er or discretion to c o n d o ne the n o n - c o m p l i a n ce w i th its prescriptive provisions, n a m e ly sections 13 (2) a nd 14 (1) a nd (2). T h e se read - "(a) T he right to claim c o m p e n s a t i on u n d er sub-section (1) f r om the registered c o m p a n y, shall b e c o me prescribed u p on the expiration of t wo years f r om the date u p on w h i ch the claim arose: provided that prescription shall be s u s p e n d ed during the period of sixty days referred to in sub-section (2) of section fourteen" ( my underlining) Section 14 (2) in turn reads:- " No such claim shall be enforceable by legal proceedings c o m m e n c ed by a s u m m o ns served on the registered c o m p a ny before the expiration of sixty days from the date on w h i ch the claim w as sent or delivered as the case m ay be, to the registered c o m p a ny as provided in sub-section (1)" ( my underlining) T he proper reading of section 10 (1) of the 1972 Order is that the right to claim compensation shall b e c o me prescribed u p on expiry of a period of t wo years provided prescription is suspended for a period of sixty days after a claim M VI 13 has been lodged. In my v i ew the right w h i ch has prescribed b e c o m es extinguished and hence unenforceable. T he prescription under the M o t or Vehicle Insurance Order 1 9 72 is best described as extinctive - N e on a nd C o ld C a t h o de Illuminations (Pty) L td vs E p h r o n - 1 9 78 (1) SA 4 6 3; M a z i b u ko vs Singer 1 9 78 (1) SA 839. Another question is: if a right has lapsed by operation of law, does the court possess p o w er to revive or rescusitate such right under c o m m on law? In the case of M o k h e t hi vs L e s o t ho National Insurance Insurance C o. - C I V / A P N / 5 7 / 86 (unreported) our Chief Justice K h e o la ( A CJ as he then w a s) h ad occasion to consider an application wherein the applicant sought an order condoning his late lodgment of an M VI 13 claim on the ground that the t wo years prescription period had expired d ue to no fault or negligence on her part. T he application w as opposed on the ground that under the M o t or Vehicle Insurance Order N o. 18 of 1 9 72 this C o u rt h ad no p o w er to c o n d o ne the late l o d g i ng of the claim f o rm with the registered insurers. In that case certain occurrences w e re alleged by the applicant as h a v i ng induced her to fail to file her claim timeously within the t wo years period, for e x a m p le a certain moon-lighting Mr K o s ie w ho h ad p o s ed as a l a w y er h ad s o m e h ow disappeared along the w ay leaving incomplete f o r ms in his trail. H o l d i ng that the w o r ds of the statute m u st a l w a ys be interpreted in their ordinary a nd literal m e a n i n g, the learned C h i ef Justice stated that Sections 13 (2) (a) a nd 14 (2) m a ke it abundantly clear that prescription begins to run f r om the date of the accident u p on w h i ch the claim arises; a nd that if within t wo years f r om the date of the accident the third party sends or delivers the claim to the insurer, the prescription is s u s p e n d ed for a period of sixty d a ys f r om the date the claim w as sent or delivered. W h e re u p on p r o p er c o m p u t a t i on or calculation of the period, it is clearly s h o wn that the right to claim c o m p e n s a t i on has prescribed either (a) b e c a u se the M V I 13 w as n ot served within t wo years after the accident a nd (b) b e c a u se the s u m m o ns h a ve b e en served after the expiry of the prescriptive period ( w h i ch should include 60 d a y s ), it w as held that the court h as no p o w er to c o n d o ne the late filing of the claim for c o m p e n s a t i o n. " T h e re is no provision in the M o t or Vehicle Insurance A ct 1 9 72 giving the C o u rt the p o w er to do so," a nd ... "the function of the court is to interpret the l aw a nd not to legislate," the learned C h i ef Justice noted. In my v i ew this C o u rt h as no p o w er either u n d er the H i gh C o u rt A ct of N o .5 of 1 9 78 or u n d er c o m m on l aw to c o n d o ne n o n - c o m p l i a n ce w i th an A ct of Parliament; it h o w e v er has p o w er to c o n d o ne n o n - c o m p l i a n ce with its o wn rules - see H i gh C o u rt R u le 59. It reads- "Notwithstanding anything contained in these Rules, the Court shall always h a ve discretion, if it considers it to be in the interests of justice, to c o n d o ne any proceedings in w h i ch the provisions of these rules are not followed." ( My underlining) T he court, in other w o r d s, cannot resuscitate a right w h i ch ex lege has prescribed and been extinguished. In passing it m ay be mentioned that in South Africa until recently, section 24 (2) of the M o t or Vehicle Insurance A ct N o . 56 of 1 9 72 as a m e n d ed provided for a court relief of a prescribed claim if the applicant could satisfy the court that by reason of special circumstances he could not reasonably h a ve been expected to c o m p ly with the prescriptive provisions of the Act. (See Chiliza vs C o m m e r c i al U n i on A s s u r a n ce 1 9 76 (1) SA 9 17 at 918). In L e s o t ho we did not h a ve a similar provision under our 1 9 72 Order, and indeed we still do not h a ve such even under the current 1989 Order. Mr M a i e a ne h o w e v er strenuously argued that the court h ad the inherent p o w er in v i ew of the special, if not pitiable, circumstances of this present case, to c o n d o ne the late filing and service of the s u m m o ns to enforce the applican1sts claim for compensation. It is not in dispute that in the present case the claim w as served u p on the insurer timeously on the 9th J u ne 1 9 89 (the accident date being the 22nd April 1989). My calculation of sixty day suspension period gives 9th A u g u st 1 9 8 9; and the s u m m o ns therefore ought to h a ve been served u p on the defendant on any day b e t w e en 10th A u g u st 1 9 89 and 22nd J u ne 1 9 91 the latter date being the cut-off date a nd no s u m m o ns could not therefore be validly issued after the date (see my recent j u d g m e nt in M o e ti vs L N IG - CIV/T/618/93 (unreported). Of great interest is h o w e v er the case of A t t o r n ey G e n e r al vs Mpalipali Lerotholi 1995 - 96 L LR and Legal Bulletin 155 w h e re the late M a h o m ed P (as he then w a s) held that it w as clearly relevant for the court to take into account the culture of h u m an rights w h en exercising discretion in terms of section 60 of the Police Order 1971 - e.g. ignorance on the part of the applicant concerning the prescriptive provisions in the law, and the effect of denying h im relief as precluding his h u m an right to ventilate his claim under law. U n d er the Police Order the Court has a discretion to extend the 6 m o n t hs statutory period of prescription. In the present case, Mr M a i e a ne invoked w h at he called "special circumstances" of the case, for e x a m p le the fact that immediately after his wife h ad b e en killed in the road accident of the 22nd April 1989, the applicant timeously lodged his M V I 13 claim on the 9th J u ne 1989. This he did on his o wn without assistances of an attorney. This choice is the one that begot h im his later w o es or troubles. On the 8th July 1 9 89 the insurer wrote to h im acknowledging receipt of his claim and informing h im that the claim w o u ld henceforth be handled by W e b b er N e w d i g a te as their attorneys and " y ou will no doubt be hearing from t h em in d ue course." Applicant apparently wrote to W e b b er N e w d i g a te on 6th N o v e m b er 1991 a nd w as replied by t h em on the 9th January 1992; there are also letters dated 28th October 1 9 9 1 , 2 6th September 1 9 9 1 , 1 9th July, 1989, a nd 18th January 1992. C o r r e s p o n d e n ce p er se unless it repudiates liability d o es not interrupt the running of the 60 d ay suspension period; if the insurer h o w e v er immediately or at a ny time during this suspension period repudiates liability, the claimant c an issue a nd serve s u m m o ns u p on the insurer right a w a y. In the present case the insurer only required certain information in order to enable it to determine the claim. It neither settled nor repudiated this claim during the sixty d ay period. In my v i e w, the applicant, personally or through his attorney h ad a full right during the period 10th A u g u st 1 9 89 to 22th J u ne 1 9 91 to h a ve issued s u m m o ns without m u ch further ado. He did not exercise his right as he w as entitled to d o; ignorance of the l aw is pleaded; but I should say ignorance of the l aw does not interrupt or suspend the running of the suspension nor is it a factor sufficient to entitle the court to c o n d o ne his n o n- compliance with the provisions of the law. U n d er the M o t or Vehicle Insurance l aw in Lesotho as it presently stands the court has absolutely no discretion e v en to afford an equitable relief to a defaulting applicant; a nd I regret to say that he cannot e v en claim against the o w n er of the vehicle w h i ch m i g ht h a ve negligently caused the death of his wife. Speaking for myself, I dare say, that our l aw on this aspect m ay be in n e ed of reform so that the claimant be afforded a better protection against prescription. As I stated in M o e t i 's case (supra) lay claimants are not acquainted with the intricate provisions of the Insurance l aw w h o se provisions e v en mislead or are misinterpreted by s o me legal practitioners. I n e ed not again indeed repeat my advice to practitioners w ho receive instructions, to lodge the insurance claims a nd issue s u m m o ns timeously on behalf of their lay clients. In the circumstances of this case, I hold that this court h as no p o w er or discretion under the M o t or Vehicle Insurance A ct of 1 9 72 to c o n d o ne non-compliance with the provisions of section 10 of the said Act. T he application is therefore dismissed with costs. J U D GE For Applicant : Mr Maieane For Respondent : W e b b er Newdigate