C of A (CIV) No 12/2001 IN THE HIGH COURT OF LESOTHO
In the matter between :
MOEKETSI MORU APPELLANT
THE ATTORNEY GENERAL FIRST RESPONDENT
WARRANT OFFICER RASELO SECOND RESPONDENT
KUMLEBEN JA GROSSKOPF JA PLEWMAN JA
The appellant instituted an action for damages ("the first action") on 29 December 1988 in the High Court against the respondents jointly and severally. The appellant's case was that on 8 November 1988 the second respondent and
-2-another policeman, while acting within the course and scope of their employment
with the Government (herein represented by the first respondent), wrongfully and unlawfully assaulted the appellant and stole M7,900.00 from his person and M4,000.00 from his home. In a judgment handed down on 1 July 1994 the trial Court awarded the appellant M5,000.00 as damages for the assault, but dismissed his claims in respect of the thefts. The appellant appealed to this Court and his claim for payment of the sum of M7,900.00 succeeded, while absolution from the instance was ordered in respect of the claim for M4,000.00. This judgment was handed down on 26 June 1996.
Nearly two years later and on 12 May 1998 the appellant instituted a fresh action for damages ("the second action") claiming M483,500.00 from the respondents as loss of profit allegedly caused by the theft of the M7,900.00 which the appellant had intended to use as capital in his business. The respondents filed a plea in August 1998. Nearly three years later, in May 2001, the respondents gave written notice that they were going to raise two law points. The first point was that the appellant's claim had prescribed in terms of section 6 of the Government Proceedings and Contracts Act, 4 of 1965 ("the Act"). The second point was that the appellant had failed to allege in his declaration that written notice of the intended action had been given in terms of section 4 of the Act.
-3-These points of law were raised in a document called "Notice to Raise
Points of Law" and not by way of a special plea as should have been done. The reason why prescription should be raised by way of a special plea, even when it appears ex facie a plaintiffs particulars of claim that the claim may have prescribed, is that the plaintiff may wish to reply to the special defence of prescription, for instance by pleading interruption (Union & SWA Insurance Co Ltd v Hoosein 1982(2) SA 481(W) at 482 G-H). By giving the appellant the said notice instead of filing a special plea the respondents effectively prevented the appellant from pleading facts which could provide a defence to the points of law, eg that proper written notice had in fact been given in terms of section 4 of the Act.
The Court a quo (Mofolo J) found that it was common cause that no letter of demand had been delivered to the authorities in terms of section 4 of the Act. It now appears that this was indeed not common cause. The Court o quo in my view also erred in regarding the respondents' notice as a plea in bar or a special plea. Following upon that finding the Court a quo held that the appellant had failed to plead any facts to show that his claim had not prescribed. The respondents' notice was indeed not a special plea which would have allowed the appellant a right to reply. The Court a quo nevertheless upheld these "points of
_4_ law" with costs, thereby dismissing the appellant's claim with costs.
The appellant appealed against the judgment of the Court a quo. The appellant's main ground of appeal is that the cause of action in respect of the second action first accrued in June 1996 when this Court allowed the M7,900.00 claim on appeal, and not in November 1988 when the M7,900.00 was stolen from the appellant. The appellant accordingly submitted that the learned trail judge erred in holding that the appellant's claim had prescribed.
I do not agree with the appellant's submission that the cause of action in respect of the second action first accrued in June 1996 when this Court allowed his appeal. The taking of his M7,900.00 was unlawful in 1988. It did not suddenly become unlawful in 1996 when this Court held it to have been unlawful. I have indicated above that prescription was not properly raised by the respondents and that it should therefore not have formed the basis for dismissing the second action. But that does not mean that the appellant should succeed with his appeal. There is another more crucial reason why he was not entitled to bring his second action and that is because all the damages resulting from a single cause of action should be claimed in one and the same action and not piecemeal.
-5-The general rule is that a plaintiff must claim all the relief he is entitled to
claim in respect of a single cause of action in one action. This has been the position in South Africa and England for may years as appears from the following remarks of Solomon JA in Cape Town Council v Jacobs 1917 AD 615 at 620:
"That in an action at common law for damages for injuries sustained by an accident the plaintiff is only entitled to sue once and for all
cannot I think be questioned As Lord Halsbury said, in
the case of Darley Main Colliery Co. V Mitchell (11 A.C. 132):
'No one will think of disputing the proposition that for one cause of action you must recover all damages incident to it, by law once and for ever.'"
See also Oslo Land Co. Ltd v The Union Government 1938 AD 584 where Watermeyer JA held as follows at 591 :
"In the Courts in South Africa it has certainly been the practice to claim all damages resulting from a negligent act in one action whether such damages have already accrued or are still prospective;
In explaining the ratio underlying this rule Van Winsen AJA remarked as follows in Custom Credit Corporation (Pty) Ltd v Shembe 1972(3) SA 462(A)
at 472 A - E :
"The law requires a party with a single cause of action to claim in one and the same action whatever remedies the law accords him upon such cause. This is the ratio underlying the rule that, if a cause of action has previously been finally litigated between parties, then a subsequent attempt by the one to proceed against the other on the same cause for the same relief can be met by an exceptio rei judicatae vel litis finitae. The reason for this rule is given by Voet, 44.2.1, (Gane's translation, vol 6, p.553) as being
'To prevent inextricable difficulties arising from discordant or perhaps mutually contradictory decisions due to the same suit being aired more than once in different judicial proceedings'.
This rule is part of the very foundation of our law and is of equal application to the criminal law - in support of a plea of
autrefois acquit - as it is to civil claims for damages resulting
from negligent acts and to claims arising out of a breach of
contract The rule has its origin in considerations of public
policy which require that there should be a term set to litigation and that an accused or a defendant should not be twice harassed upon the same cause."
It should be pointed out that the appellant's case is not one of those matters where there is a continuing wrongful act causing fresh damage from time to time. (Cf Symmonds v Rhodesia Railways Ltd 1917 AD 582 at 588; Oslo Land Co.,
supra, at 589.)
The cause of action on which the appellant relied in claiming the M7,900.00 in his first action against the respondents was the second respondent's unlawful taking of the money. In claiming consequential damages in the sum of
-7-M483,500.00 in the second action against the respondents the appellant relied on
the same wrongful act. The authorities quoted above clearly show that the appellant was not entitled to proceed against the respondents for a second time or the same cause of action. (See further Green v Coetzer 1958(2) SA 697 (W).)
The appeal is accordingly dismissed with costs.
FH Grosskopf Judge of Appeal
M E Kumleben Judge of Appeal
C Plewman Judge of Appeal
Delivered at Maseru on this day of October 2001