Peete v Lesotho National General Insurance Co Ltd (CIV/T/141/2000 )

Case No: 
CIV/T/141/2000
Media Neutral Citation: 
[2003] LSHC 16
Judgment Date: 
22 January, 2003

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CIV/T/141/2000

IN THE HIGH COURT OF LESOTHO


In the matter between:

MAHOOANE PEETE Plaintiff

and

LESOTHO NATIONAL GENERAL INSURANCE

CO. LTD Defendant


For the Plaintiff : Miss Ramafole

For the Defendant: Mr. Grundlingh


JUDGEMENT


Delivered by the Honourable Mr. Justice T. Monapathi on the 22nd day of January 2003


Plaintiff has, in his personal capacity, sued Defendant for payment of an amount of M234,789.69 plus costs of suit.


The claim arose out of a motor vehicle accident which occurred on the 6th


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March 1998 at or near Ha Potloane, in the Leribe district. The claim was made in terms of Motor Vehicle Insurance Order No.6 of 1989 as amended, (MVI Order).


It was also common cause that the accident happened on the day mentioned on the early evening, that the claim form was filed on the day of the 17th June 1999 before the end of business and that summons was issued on the 5th May 2000.


Defendant has raised a special plea which is grounded (primarily on facts which were common cause) as follows. That the claim upon which Plaintiff's action is based having over on or about the 6th March, 1998 (the date of the accident). The claim form which Plaintiff was required to deliver to defendant in terms of section 12 of the MVI Order having been delivered on the 17th June 1999; the summons having been served on the Defendant on the 5th May 2000.


The Defendant pleaded that the Plaintiff's claim had been prescribed as the summons was not served within the period of two (2) years as from the date upon which the claim arose and as required by the said section 12 read with section 10 of the MVI Order.


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Defendant submitted that, if regular, summons should have been served on or before the 4th May, 2000. And that Plaintiff has not complied with section 10(1) of MV1 Order and should accordingly be non suited. Wherefore as Defendant pleaded Plaintiff's claim should be dismissed with costs.


As it later became obvious the parties disagreed on a perilously restricted point for interpretation which was about computation of days. See what Defendant will submit (infra) referring to Kleynhans v Yorkshire Insurance Co. Ltd 1960(2) SA 852(D), SA Mutual Fire & General Insurance Co Ltd v Fouche 1970(1) SA 302 (A), Mamokhethi Mokhethi v Lesotho National Insurance Company (Pty) Ltd CIV/APN/57/86 Contrast section 50 of Interpretation Act No. 19 of 1977. A difference of only one(l) day it would become indeed. It provides a useful background, in any event, to capture even the broader area of Counsel's arguments.


Section 10(1) of MVI Order reads as follows:


"The right to claim compensation under this order from the insurance shall become prescribed upon the 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."


The relevant part of section 12 of the MVI Order reads as follows:


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12(1) "A claim to compensation and accompanying medical report in terms of this Order, shall -


  1. be set out in a form prescribed by regulations which shall be completed in all its particulars;


  1. be sent by registered post or delivered by hand, at the register's head office or local branch office of the insurer and the insurer shall at the time of delivery by hand acknowledge receipt thereof and the date of such receipt in writing.


  1. .........................................


    1. No claim in terms of this Order shall be inforceable by legal proceedings commenced by a summons served on the insurer before expiry of a period of sixty days as from the date on which the claim was sent or delivered by hand, as the case may be as provided for in section 10." (My emphasis)


I however did not see the significance of Miss Ramafole's argument over the point that the Defendant acknowledged receipt of the claim form much later than the day it was received. It was because there was no dispute that the form was received on the day contended for by Plaintiff. In any event it was not the crux of the real dispute.


It was agreed that section 12(2) specially provides for the commencement of legal proceedings by service of summons. I was referred to Kleynhans case (supra) "A summons which is served prematurely is not a nullity. While the


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action thereon is unforceable the summons may be reserved." See National Insurance Company (PTY) Ltd v Tsepo Sekhesa C of A (CIV) 36/94 as approved by Ramodibedi J in Khuto v Lesotho National Insurance Company Limited CIV/T/65/91.


The reason why an insurer will insist on the full period of sixty (60) days is that the period is prescribed to provide as to provide the insurer with a reasonable period within which to investigate the claim (after filing of claim form) on its part before being involved in litigation. See Santam Insurance Company Ltd v Vilakazi 1967(1) SA at page 252 A-B.


I accepted that if a claim is lodged within two years prescribed period, set out in sections 10 and 12 of the MVI Order, prescription is only suspended for a period of sixty days from the date of lodging of the claim form. As was graphically shown in Mokhethi's case Kheola ACJ (as he then was), said:


"If within two years from the date of the accident the party sends or delivers the claim form to the registered company (Insurer), the prescription is suspended for a period of sixty (60) days from the date the claim was sent or delivered. In other words the right to claim compensation from the registered company becomes prescribed upon expiration of two years. However if a claimant lodges the claim within the registered company within two years from the date of the accident prescription shall be suspended for sixty days (60) days."


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Mr. Grundligh referred to the following cases, which I approved, on the above point: Masilo v Lesotho National Insurance Company (Pty) Ltd and Another, CIV/T/47/86, Tauhali v Lesotho National Insurance Company (Pty) Ltd CIV/T/47/86 Lehohla J 27th August 1997. Khuto's case (supra), Masupha v Lesotho National Insurance Company (Pty) Ltd CIV/APN/136/97 Moeti v Lesotho National Insurance Company (Pty) Ltd CIV/T/618/93 and Lesotho National Insurance Company (Pty) Limited v Sekhesa C of A (CIV) 36/94.


It has to be shown for clarity's sake that section 10(1) and section 12 of the MVI Order are similar to sections 13(2) and 14(2) of the Motor Vehicle Order No. 18 of 1972.


I accepted that the overall legal background was still even more graphically illustrated by Ramodibedi J in Khuto's case (supra) where he held as follows:


"As I read them the authorities came to the following principle with which I am in full agreement:


  1. In section 13(2) 14(2) of the Motor Vehicle Insurance Order No.18 of 1977 prescription begins to run from the date of the accident upon which the claim arises.


  1. If within two years from the date of the accident the third party sends or delivers registered company (insurer) the prescription is suspended for a period of sixty (60) days from the date of the claim was sent or


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delivered. What this means therefore is that the right to claim compensation from the registered company is prescribed upon expiration of two years.


However if the claimant lodges the claim form the registered company (insurer) within two years from the date of the accident prescription shall be suspended for sixty (60) days.


  1. A summons which is served prematurely is not a nullity. While the action therein is unenforceable the summons may be reserved. See Lesotho National Insurance Company (Pty) Ltd v Tsepo Sekhesa (supra)


  1. The service of the summons and not the issue is decisive is determining when prescription begins to run."


As I said before the parties were at one that these were the ruling principles.


Lastly, this Court endorsed the proposition that the claim in terms of the MVI Order prescribes if summons is not served within two years prescriptive period (as suspended by the sixty days) after delivery of the claim form or within the time limits agreed upon by the parties has been confirmed by the Court of Appeal in the matter of Lesotho National Insurance Company (Pty) Ltd v Ts'epo Sekhesa (supra).


In my reckoning the following statement made the practical aspects of the principles even clearer in practice. It is that in non fatal injury cases the claim


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arises on the date of collision. Prescription will commence to run on the date of the collision.


In addition Defendant submitted that while the right to claim compensation prescribes after the expiration of a period of two years to claim prescribes after expiration of a period of two years from the date on which the claim arose, the two year period is suspended during the period of sixty (60) days mentioned in section 10 provides, in short, that no claim be enforceable by a summons served before the expiration of a period of sixty (60) days calculated from the date on which the claim documents were despatched or delivered to the company concerned. The two years period stops running that is, is suspended for sixty (60) days by the delivery (by hand) or dispatch by registered mail of the claim documents to the insurer, and on the sixty days period has expired, the unexpired portion of the two year prescriptive period commences to run.


We now came to the area in which the parties began to part ways. Defendant submitted that the two year period is calculated in accordance with the ordinary civil method which means in effect, most importantly, that the period commences at the beginning of the first day and terminates at the beginning of the last day or stated otherwise, the first day is included and the


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last day is excluded. See Kleynhans case (supra) and Somdaka's case (supra).


This simply means, on the example provided by the Defendant, that if a collision occurred on 20th July 1982, the claim will become prescribed at midnight on 19th July 1982, the claim will become prescribed at midnight on 19th July 1994, unless of course the statutory claim form is lodged within the period.


Defendant's Counsel went on to elaborate that the calculation of sixty (60) days period is done by the civil method and not in terms of the Interpretation Act No. 19 of 1977 as contended by Plaintiff's Counsel. According to the former the first day is included an the last day is excluded as against excluding the first day and including the last day. For his support Defendant cited SA Mutual Fire and General Insurance Co. Ltd case (supra) per Rabie JA at page 311 H. On the same reasoning therefore the counting of day of dispatch (delivery by hand, as the case may be) as the first day the remaining 59 days or simply being counted off the calender. Prescription will then recommence or to run on the 61st day and will continue to run for so much of the m . two year prescriptive period as remains unexpired on the day when the claim form was dispatched or delivered. I was referred to Mamokhethi's case (supra) in this regard.


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Counsel agreed that on the facts of this case if the method described in the Interpretation Act was adopted it means that on that calculation summons must be regarded as having been served on the sixtieth (60th) day. If the civil method is used on the other hand summons must have been served on the sixty-first (61st)day contrary to Miss Ramafole's submission.


Miss Ramafole adopted into the calculation the fact that the accident happened on or about 7.30p.m. on the day of the accident. That meant as she contended that on the day the summons was served it must have been on the sixtieth (60th) day which ought to or could have expired at 7.30 on the date that the summons was served. If the summons was served before 4.30 then that must have been within the sixty days period or specifically that it was before the last three hours to expiry which was on that day. That argument was novel.


I agreed with the novel approach by Ms Ramafole only as far as it went. Indeed Mr Grundlingh did not agree with the interpretation although he considered that the factual calculation would have been correct, that is the arithmetic part. But this calculation misses the point that every day ends at 12.00midnight and it is not a matter of 24hours strecth but it is a matter of every day ending at 12.00midnight this means that after 12.00midnight it a different


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day that comes into being. This means again that the day following the accident was a different day. The calculation is not for hour by hour but for days See Wulfes vs Commercial Union Assurance Co. SA Ltd 1969(2)SA 31 (N.P.D) where the two year period would have expired at the latest on 14th April 1965, the purported service on the 16th was according ineffectual to prevent the Plaintiff's claim for compensation being prescribed. In any event it was agreed that the difference between the two modes of calculation was that of a day and not more. On any account one cannot speak of any inordinate delay or prejudice but that is not the consideration as decided cases show.


The present state of affairs is such that there has not been any explanation offered for that delay which could only have amounted to that of one day. It is not also one where condonation has been applied which would have been on a different footing. One has however to bear in mind the words of Gauntlett AJA in 'M'ats'ehla Khanyapa vs Compol 1999 - 2000 LLR 350 at 355 - 356 where the learned Judge commented about certain statutes about which:


"Urgent attention needs to be given by the Attorney General to the constitunality of that and other time barring or a prescriptive measures on the Lesotho Statute Book".


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I concluded that the Plaintiff's claim had prescribed. The claim is dismissed with costs.


T. MONAPATHI

JUDGE