C OF A (CIV) NO.27/2001
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:-
TAOLI LESETLA APPLICANT
MATLHORISO MATSOSO RESPONDENT
REASONS FOR JUDGMENT
8,12 April 2002
Application for leave to appeal - claim in Local Court against driver for damages for injuries suffered by non fare-paying passenger -Motor Vehicle Insurance Order, 1989 not applicable - reasonable prospect that may be claimed at customary law, and accordingly that Local and District Courts nuy have jurisdiction under Proclamation 62 of 1968 power of the courts to develop customary law.
CORAM: Plewman, J.A.
On 8 April this court made an order granting leave to the applicant to appeal to this court for reasons to follow against a judgment of Ramodibedi J. in the High Court. These are the reasons.
The litigation arises from a motor vehicle overturning, resulting in injuries to the applicant's wife who was a passenger in the vehicle. The applicant alleges the injuries were due to the negligence of the driver of the vehicle, the respondent's late husband.
The applicant successfully sued the respondent for damages in the Tale Local Court. An appeal by the respondent to the Tsifalimali Central Court was dismissed. She noted a further appeal to the Judicial Commissioner's Court but while the appeal was pending she brought review proceedings in the Leribe Magistrate's Court (in terms of s.26 of the Central and Local Courts Proclamation 62 of 1938) to set aside the judgment of the Local Court on the grounds the Local Court had no jurisdiction to determine the dispute. The review succeeded. An appeal by the applicant to the High Court was dismissed with costs by Ramodibedi J. The learned judge refused leave to appeal to this court. Hence the present application. It is not opposed; the respondent however has indicated that she does oppose any appeal which may arise should the application be allowed.
The court a quo held that
"[t]he ..... point of dispute in this case is a short one namely whether Central and Local Courts have jurisdiction to hear cases involving motor accidents or the common law."
Referring to the limits imposed on the jurisdiction of Central and Local Courts by sections 6,9 and 10 of Proclamation 62 of 1938, the learned judge noted that it was common cause that the warrants defining the jurisdiction of the Tale Local Courts and the Tsifalimali Central Court "do not include the common law and/or matters arising from motor accidents. Nor are such matters included in section 9 of the Proclamation."
The court rejected the applicant's argument that customary law had developed sufficiently to encompass matters which might otherwise fall under the (Roman Dutch) common law. The essential point, the court held, was that the Central and Local Courts had no inherent jurisdiction; they were creatures of statute, and their statutory powers confined them to customary law (s. 9 (a) and (c) of Proclamation 62 of 1938), rules or orders of the local chief (s. 9 (b)), and the provisions of any law specified by the Minister with the concurrence of the Chief Justice (s. 9 (d) read with s.10).
Before this court, the applicant argued that both the magistrate's court and court a quo were firstly wrong in concluding that his claim on behalf of his wife fell within the ambit of s. 13 (1) of the Motor Vehicle Insurance Order, 1989 (as amended by the Motor Vehicle Insurance (Amendment) Order, 26 of 1991). His counsel pointed out that the claim was one in respect of a non fare-paying passenger against the driver, and not against any insurer. Secondly, it was
argued, customary law is a living system and was capable, through development, of providing a remedy in a case such as the present.
It seems to me that the applicant is correct in contending that s. 13 (1) of the Motor Vehicle Insurance Order, as amended, ("the Order") has no application in the present matter. It does not entail a claim against a statutory insurer. S. 9 (b) indeed excludes the liability of an insurer where the passenger is not carried for reward. S. 14 prohibits compensation being claimed from the owner or driver of the vehicle in question only "[w]hen a person is entitled under this Order to claim from the insurer.....the first mentioned person shall not be entitled to claim compensation in respect of that loss or damage from the owner or from the driver....." (emphasis supplied).
The Order does not extinguish any claim a plaintiff may have against the owner or driver in relation to a loss for which the insurer is not liable under the Order, and for which the Order affords no compensation (cf Rose's Car Hire (Pty) Ltd vs Grant 1948 (2) SA 466 (A)).
In my respectful view, the learned judge a quo accordingly erred in considering that the applicant's claim was encompassed by the Order, being a statute in relation to which no jurisdiction vests in the Central and Local Courts, and that for this reason there was no reasonable prospect that his contemplated appeal could succeed.
The question remains however whether the applicant's claim is exigible either at common law or customary law in the Tale Local Court and Tsifalimali Central Court.
The applicant's counsel conceded before us that he could not point to any conferral of jurisdiction on these courts by a warrant of the Minister (in terms of s. 10 of Proclamation 62 of 1938) relating to a claim such as that in issue here, at common law. (Whether a common law claim in fact comprises "any law" within the meaning of s.10, is in any event a matter open to doubt (R. v. Detody 1926 AD 198 at 201; Devenish The Interpretation of Statutes (1996) 243 and further authorities cited at footnote 30). It is not appropriate to determine that issue in this matter, in view of the concession.
This leaves the applicant, then, only with a potential customary law claim capable of being prosecuted under Proclamation 62 of 1938 in the courts in question: the second basis for his application before us (see paragraph  above).
The learned judge dismissed this very shortly. He held:
"Any change based on the perceived development of customary law is of course a matter for the legislature and not for the courts."
In my view, the applicant enjoys a reasonable prospect of establishing that at customary law, his claim on behalf of his wife to compensation for physical injuries sustained from the wrongful act by the respondent (as found by the Local and Central Courts) is exigible. That the injuries have been sustained though a motor vehicle overturning does not seem to me to exclude that prospect. It is not apparent to me that customary law in Lesotho excludes compensation for assault, for instance, because the weapon is a modern one, unknown in early Basotho society. Nor in my view is it axiomatic that development of customary law is exclusively a matter for the legislature, as the learned judge holds, should development be necessary.
The conclusion by the learned judge I have quoted in paragraph  appears to me to be at odds with the acceptance in Lesotho case law that customary law is capable of development - where appropriate, I stress, and undoubtedly with great circumspection (cf. Mthembu vs Letsela 2000 (3) SA 867 (SCA)) - by the courts (see for instance Bereng Griffith vs Mantsebe Seeiso 1926-1933 HCTLR 50; NvK 1980-84 LAC 239 at 241H, 245B). Customary law, I repeat, is not static; it does change (like the common law) as society changes, and the courts do play a role in its development (Saunders How customary is African customary law (1987) 20 CILSA 405 at 409; Prinsloo Restatement of Indigenous law (1987) 20 CILSA 411 at 413; Joubert (ed) Law of South Africa (ed) vol. 32 para. 173; Duncan
Sotho Laws and Customs 4-6). This must include the law of delict (Palmer Roman Dutch and Sesotho law of delict 33).
Whether or not customary law in fact currently allows the applicant's claim, or through judicial development should be permitted in a case such as the present to do so, is not the issue now before us. The present inquiry is only whether there is a reasonable prospect that this court may find for the applicant. Certainly the questions raised by the matter are of undoubted importance not only to the parties but to the public.
I would not wish to be understood in any way now to be anticipating the important and complex issues the appeal will undoubtedly raise. There are number of considerations which must be carefully weighed. Negligence in relation to the operation and maintenance of motor vehicles can involve intricate questions. This is also true of questions of contributory negligence and causation. Whether customary law currently extends, or should be developed by the courts without legislative assistance (see especially Mthembu vs Letsela, supra) to extend, to claims of this kind is a difficult and important inquiry.
 In my view, there is a reasonable prospect that this court may come to a different conclusion to that of the court a quo in relation to the second basis of the application (see paragraph  above). Leave to
appeal was accordingly granted. As the respondent's counsel regrettably had not timeously prepared argument on the appeal itself, the latter will have to stand over until the next session. The costs of the application shall be costs in the appeal.
For the Applicant : Adv. M.E. Teele
For the Respondent: Adv. M. Tau