IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the matter between :-
ERNEST MOHAU PLAINTIFF
THE COMMISSIONER OF POLICE 1st DEFENDANT
THE ATTORNEY GENERAL 2nd DEFENDANT
Delivered by the Honourable Mr Justice T. Monapathi On the 27th day of January 2003
For Plaintiff : Mr Ramakhula
For Defendant : Mr Sekati
Summons commencing action in this matter was served upon the Defendants on or about the 11th of January 1995. This date was not contested.
In the action Plaintiff claims from the defendants payment of an amount of M50,000.00 at the result of an alleged unlawful search effected by the first Defendant's officers during or about the month of December 1993. The date is not disputed.
Defendant's, after the service of summons as aforesaid, issued a special plea of prescription of plaintiff's action in terms of section 60 of 1
Police Order 1971 (Legal Notice No 26 of 1971) as amended by Order No 8 of 1991 which provides that:
"any civil action against the crown or persons acting in pursuance of this order or any reasons there under in respect of anything done or omitted to be done in pursuance thereof shall be commenced within six months next after the cause of action arises and notice in writing of any civil action and of the substance thereof shall be given to the defendant at least two months before the commencement of the said action provided that the court may for good cause showing the proof of which shall upon the applicant extend the said period of six months".
The reason for a provision of this time bar can be seen in the judgment of Mohamed J.P. in Attorney-General vs Mpalipali Lerotholi 1991 -1996LLR 13 at 14, Defendants accordingly submitted that the claim had prescribed because it was brought about a year later after the cause of action had arisen contrary to the dictates of the said section.
Defendants submitted further that in terms of the said section 60 the court could extend the said period of upon application for condonation by the Plaintiff. Inasmuch as the Plaintiff did not apply for such condonation for extension of the period the plaintiff ought to be no-suited and the claim had to be dismissed.
Except that the Plaintiff sought reliance on the following submissions, I did not think he was able to resist the logical conclusion of the fact that in terms of the said section 60 the claim had to be dismissed. Indeed he
conceded that but for the following convoluted submissions which were not quite able to be supported by counsel. Having made the concession much of the academic discourse indulged in by the Plaintiff not been very useful for my decision.
One submission, was respect for human rights the other was dual interpretation of the statute. All were suggesting that the effect of dismissing the claim could be to deny the Plaintiff his ventilating a human rights violation against him or against his rights when an alternative statute existed which he could resort to. In this he referred to M'ats'ehla Khalapa vs Commissioner of Police 1999 - 2000 LLR at 350 and the case of Rennie N.O. vs Gordon 1988(I) SA,1 (AD) 22 E and the case of Attorney-General and Mpalipali Lerotholi which I have referred to earlier. The other cases were S V Bhulwana, 1996(1)SA 388 (CC) Mhlungu 1995 (3) SA 867(CC) at 895 E and Mohlomi vs Minister of Defence 1997(1)SA 124.(CC)
Secondly, in line with the submissions which the Plaintiff made was in addition that in terms of the common law a delictual debt prescribes and becomes distinguished after three years of its origination. He referred the court to The Law of Delict Neethling et al. at page 268.
Mr Ramakhula further contended in his main defence that the claim was properly made in terms of Government Proceedings and Contracts Act of No. 4 of 1965 which provides that it is only after two years from the time when the cause of action first acrued that no action or another proceedings can be brought against the crown.
Plaintiff's counsel went further to say that the letter of demand served on the 17th May 1994 which was acknowledged by the Defendant's was followed by Defendant's delaying tactics resulting in the claim being filed only on the 24th December 1994. It was then that the Plaintiff realized that there was a deliberate dragging of things by the Defendants so that the Plaintiff's claim would end up being barred by provisions of said mentioned section 60 of the Police Act This as I found was not a good explanation why the action was not instituted earlier. "That attitude is erroneous and not understandable see Mpalipali Lerotholi's case (Supra) at page 15(paragraph "3").
I saw no good reason why the Plaintiff said he could be possessed of an option to resort to the Government and Contract Proceedings Act when the Plaintiff had failed to apply in terms of section 60. This court was not told in what way police administration, much as it is a bureaucratic be look at system had caused delay in Plaintiff's pursuing his claim. I agreed with Defendant that the making of a demand would not be construed as an interruption of the prescriptive period. I was referred to Malee Emsley Putsoa v Attorney- General C ofA(Civ) No. 1, 1983,
I disagreed with respect and I was surprised that Plaintiff said he was faced with a problem as to how to effect a notice to extend the period to file his claim in as much as the statute itself, that is the said section 60 does not provide for such procedure. It does not stipulate as to when the notice of two months should be made. This was not unpersuasive that as he confided I went to the extent of questioning the bona fides of such an attitude.
To start with in 'NPats'ehla Khalapa's case the Court of Appeal accepted the appellant's case for condonation even when such an application was made after the Defendant's special plea was already filed. The court's reasoning was well placed in the circumstances where the High Court had failed to consider the good reasons put forward by the .. plaintiff merely because the application for condonation had been belated. I therefore found no reason why the Plaintiff was not advised to apply for condonation. Still he would have to show good cause for the court to exercise its discretion. Indeed that is what the section 60 says can be done.
I agreed with the Defendant's submissions in the circumstances and found that the claim ought to be dismissed with costs because it became time barred.
JUDGEMENT NOTED BY : Mr Putsoane