What Is Prescription in Lesotho?
In civil litigation in Lesotho, a claim must be instituted within a legally defined period, referred to as a prescription period. If legal proceedings are not initiated within this time frame, the right to claim lapses, rendering the case legally unenforceable. This concept stems from both Lesotho’s statutory law and the common law tradition, specifically Roman-Dutch law.
As experienced lawyers in Lesotho, we often advise clients on how critical it is to be aware of these time limits when preparing or defending a civil claim.
Are Prescription Laws in Lesotho Constitutional?
Historically, the constitutionality of prescription provisions had not been questioned in Lesotho’s courts. However, recent litigation has brought the issue into sharper focus.
In the landmark case of Khalapa v Compol & Others (LLR 1999–2000), the Court of Appeal expressed concern about section 6 of the Government Proceedings and Contracts Act of 1965, which prescribes a rigid time bar without exceptions based on the claimant’s awareness of the cause of action. Drawing from South African jurisprudence (e.g., Mohlomi v Minister of Defence), the Court noted that this approach could potentially be constitutionally suspect, though it ultimately left the question open for future consideration.
Later, in Lesotho National General Insurance Co. Ltd v Nkuebe (C of A (CIV) No. 18/2003), the constitutionality of prescription was directly challenged. The respondent argued that automatic time bars without judicial discretion to extend the period in the absence of fault violated section 4(1)(h) of the Lesotho Constitution, which guarantees a fair resolution of civil disputes.
However, the Court held that this provision must be read in context, particularly with section 12 of the Constitution, which deals primarily with criminal trial rights but also touches on civil matters in subsections (8) and (9). These subsections ensure that civil disputes are heard by independent and impartial courts within a reasonable time. The Court concluded that these sections protect procedural fairness, not the substance of time-limiting laws, and therefore did not render prescription provisions unconstitutional.
Prescription Laws in Practice: What Are the Current Rules?
Despite their legal significance, Lesotho does not yet have a comprehensive codified statute outlining all civil prescription periods. The current framework is a patchwork of outdated legislation, specific statutory provisions, and Roman-Dutch common law. Here’s an overview:
The Prescription Act of 1861
This Act applies only to a limited set of financial claims, such as:
- Debt under bills of exchange, promissory notes, and liquid documents – 8 years
- Claims for goods sold, money lent, rent, and work done – 8 years
- Professional fees (e.g., lawyers, doctors, surveyors) – 3 years
It also suspends prescription for individuals under legal disability, such as minors or persons with mental incapacity.
Government Proceedings and Contracts Act, 1965
This law imposes a two-year prescription period for claims against the government or its employees, covering both contractual and delictual claims. In addition, a one-month notice of intended legal action must be given within that period. This rule is especially relevant in public law litigation and requires careful compliance to avoid claim dismissal.
Roman-Dutch Common Law
Where no statutory provision applies, courts revert to common law, which does not prescribe a universal time limit but assesses it based on the nature of the claim. Unfortunately, these common law periods are not readily accessible and often pose challenges even for legal practitioners, let alone unrepresented litigants.
A Call for Reform: Toward a Unified Prescription Code
In the Nkuebe judgment, the Court of Appeal of Lesotho emphasised the need for a modernised and consolidated Prescription Act. Such legislation should:
- Clearly define time periods for all categories of civil claims;
- Provide a list of exceptions where prescription is suspended or extended;
- Ensure consistency with constitutional rights, particularly those in sections 12, 18, and 19;
- Reduce complexity by avoiding multiple, overlapping prescription regimes.
A well-drafted statute would bring much-needed certainty to litigation in Lesotho and protect both litigants and legal practitioners from the harsh consequences of procedural time bars.
Why Prescription Matters in Lesotho’s Legal System
Missing a prescription deadline can have serious consequences, including permanent loss of the right to claim. For both plaintiffs and their lawyers in Lesotho, it is vital to:
- Identify the correct prescription period early on;
- Verify whether any statutory notice is required (especially in claims involving the state);
- File proceedings in time to avoid costly legal challenges or case dismissal.