Masokela v Commander RDLF and Another (CIV/APN/301/92)

Case No: 
Media Neutral Citation: 
[2004] LSHC 28
Judgment Date: 
16 February, 2004




In the matter between:






Delivered by the Honourable Mr. Justice T. Nomngcongo on the 16th day of February 2004

This matter started off in the magistrate's court in the early nineties following applicant's dismissal by 1st respondent. The applicant sought inter alia to have the dismissal declared null and void. Realizing that it was not competent for that court to issue declaratory orders, the applicant withdrew the case on the 3rd July 1992. At this stage the application was timeous in terms of section 6 of the Government Proceedings and Contracts Act N0.4 of 1965. It was opposed by the respondents.

Bent on pursuing relief applicant re-launched the case in the High Court under CIV/APN/301/92 on 21st August 1992 by which time the claim had prescribed by nearly eight months reckoning from the 31st of January 1990. The matter was opposed and a notice to that effect was filed on the 7th September 1992 and opposing affidavits filed on the 29th September. Applicant filed his replying affidavit on the 8th October and pleadings were thus closed. The matter was argued on the 21st April 1993 and judgment was reserved by his Lordship Molai J. to a date to be announced by the Registrar. It is to be noted here that up to that stage although the claim had already prescribed as aforesaid the defence had not been raised by the respondents.

Be that as it may, it is not known whether the judgment was written or not or whether the Registrar simply failed to announce the date of judgment. What we do know however is that five years on judgment had not been delivered when the High Court was torched by arsonists in September 1998 and the whole file apparently went up in flames in the ensuing fire. The parties then approached my brother Molai J. for directions. He directed that the matter be heard de novo before any Judge. Before then the matter had been placed before me and I had had doubts as to whether it was proper for me, rather than Molai J. to deal with it. It would appear then that Molai J. entertained no such doubts and gave the order that he did. I will proceed, without


deciding anything in that regard, on the undisputed basis that I am properly seized with the matter.

Now, Molai J. having ordered as he had done the applicant had the original papers (copies thereof I presume) as had been placed before His Lordship filed and the case was reinstated as such. It was at this stage that the respondent raised a point of law in terms of Rule 8 (10) (c) presumably. The points raised were as follows :

  1. "Plaintiff was allegedly dismissed on the 31st January 1990.

  1. The present application challenging the dismissal was instituted on or about 21st August 1992.

  1. c. In terms of the Government Proceedings and Contracts Act 1965, proceedings against the Government have to be instituted within a period of two years from the date of the cause of action or other proceedings, accrued.

  1. The present proceedings were instituted after a period of two years from the date the cause of action accrued and are therefore time barred".

Faced with this problem the applicant then approached court for an order in the following terms:

  1. Condoning applicant's late filing of his main application.

  1. Granting applicant the extension of time beyond the statutory two years


period. 3. Costs of suit in the event of opposition.

Counsel for the applicant then filed in support thereof an affidavit in substantially the same term as the brief outline of the history of this case, as I have given above. He says on those grounds the respondents are either estopped or alternatively have waived their rights to raise prescription in their defence.

The respondents indicated that they were opposing the application and filed an answering affidavit of Mokhothatso Ts'ele. It is to the effect that the claim is prescribed and that in law they are entitled to raise the point now even though they did not raise it then. He is in effect saying the fact that the proceedings are starting de novo make the matter to borrow his words "for all intends and purposes a fresh one." I was not referred to any authority for so wide a proposition. For my part I have grave doubts about its validity I am rather inclined to the view expressed by the applicant in his replying affidavit that, that would be a contradiction in terms for as he put it - "a matter is heard de novo precisely because it was once heard". (para. 11 of the replying affidavit).


The rules of court do not lay down any guidelines where matters are ordered to start de novo. I do not myself intend to propose any without the benefit of argument and the in absence of literary material at my ready disposal but I cannot accept that, all that has gone on in the previous proceedings should be discarded as if it never existed. In practice this is really never so as it is not unusual for instance to order that the matter start de novo on the same papers. I therefore reject the contention that I should not consider what happened before the matter was ordered to start de novo.

What happened is simply that when this application was argued to finality on the 21st April 1993, the cause of action had prescribed. The respondents had not raised any objection on that ground. But for the delay in delivering judgment, and the subsequent destruction of the file, the respondents were content with their pleadings minus the special plea that they are now seeking to raise. These are the facts alleged by the applicant and not disputed by the respondents. Their contention therefore that applicant has not placed any facts which assist the court in determining whether there was a waiver of the right to plead prescription, has no merit.

In determining whether a party has waived his right it was held as follows in Mutual Life Insurance Co. of New York v Ingle 1910 TRD 540 at 550 per Innes CJ.


" After all, the waiver is a renunciation of a right. When the intention to renounce is expressly communicated to the person affected he is entitled to act upon it, and the right is gone. When the renunciation, though not communicated, is evidenced by conduct inconsistent with the enforcement of the right, or clearly showing an intention to surrender it, then also the intention may be acted upon, and the right perishes".

The test to be applied in determining the waiver is an objective one. It was thus held in Multilateral Motor Vehicle Accident Fund v Meyerowitz 1995 (1) 23 at 28 I per Van Deventer J:

"Lastly, an objective test is to be applied when the Court is called upon to decide whether waiver has been established in evidence".

On the basis of the conduct of the respondents outlined above I would conclude that a reasonable man would take it that they had waived their right to plead prescription for with full knowledge of their right they proceeded to finality without invoking it. They cannot rely on the fortuitous circumstance that while judgment was awaited the case file was destroyed.

The respondents further argue that the Government Proceedings and Contracts Act of 1965 makes no provision for the extension of time. While that is true, it is equally true that, if a party either expressly or by conduct waives the right to invoke


prescription, that right perishes notwithstanding that such right is derived from a statute couched in peremptory terms.

Thus it was held in the Multilateral Motor Vehicle Accidents Fund v Meyerowitz


" Statutory provisions such as those of the Act and regulations pertaining to prescription may be waived even if such provisions can be said to be peremptory".

I therefore dismiss the argument that prescription under the Government Proceedings and Contracts Act of 1965 cannot be waived.

Finally, the real issue between the parties at this stage is whether the special plea of prescription is available to the respondents. For the reasons set out above I hold that it is not. The respondents have waived it by conduct. In order therefore to satisfy the prayers sought by the applicant it is necessary to make an order in the following terms.

  1. The special plea of prescription is dismissed with costs.

  1. The application to proceed in all other respects as ordered by Molai J.


and within the time limits set out in the Rules, commencing from the date of this judgment.



For Applicant : Mr T. Fosa

For Respondents : Mr T.S. Putsoane