The doctrine of prescription, which renders civil claims unenforceable if not instituted within a specified time period, forms an integral part of both the statutory and common law of Lesotho. While the practical implications of prescription are well understood in civil litigation, its compatibility with constitutional rights, particularly the right to a fair hearing, has only recently come under judicial scrutiny.
For years, the courts in Lesotho accepted prescriptive provisions as constitutionally valid without detailed engagement. However, recent appellate judgments have brought the constitutional dimensions of prescription into sharper focus, raising important questions about access to justice, legislative drafting, and the balance between legal certainty and fairness.
2. Prescription and Constitutional Rights: An Emerging Jurisprudence
2.1 The Judicial Response in Khalapa
In Khalapa v Commissioner of Police and Others LLR 1999–2000, 350, the Court of Appeal was invited to consider the constitutionality of section 6 of the Government Proceedings and Contracts Act 1965. While the Court ultimately declined to rule on the issue, it issued a stern warning on the matter:
“The drastic provisions of s.6 of Act 4 of 1965 (unrelieved as they are by provision for prescription to run only after the creditor has acquired knowledge… or by provision for extension) call into serious question its constitutionality… Certainly, however, urgent attention needs to be given by the Attorney-General to the constitutionality of that and other time-barring or prescriptive statutory measures on the Lesotho Statute Book.” (at 356)
This obiter dictum signalled, for the first time, judicial discomfort with statutory prescription clauses that fail to accommodate exceptions based on knowledge or incapacity.
2.2 Procedural Fairness in Lesotho National General Insurance v Nkuebe
The constitutional challenge to prescription was more directly addressed in the later case of Lesotho National General Insurance Co. Ltd v Nkuebe (C of A (CIV) No. 18/2003, unreported). Counsel argued that all prescriptive provisions are unconstitutional insofar as they bar access to court, especially where the delay in instituting proceedings was not the plaintiff’s fault.
The argument was grounded in section 4(1)(h) of the Constitution, which guarantees the right to a fair hearing in the determination of civil rights and obligations. However, the Court found that this right must be interpreted contextually with section 12 of the Constitution. While section 12 primarily addresses the rights of accused persons in criminal proceedings, subsections (8) and (9) extend procedural guarantees to civil litigation, including the right to be heard by an independent and impartial tribunal and within a reasonable time.
The Court held that the phrase “a fair hearing” in section 4(1)(h), when read with section 12(8)–(9), refers solely to procedural fairness and not to the fairness of substantive rules such as those relating to prescription. The Court cautioned that constitutional interpretation must avoid relying on subjective notions of fairness.
As a result, the Court concluded that prescriptive provisions are not per se unconstitutional. There is no constitutional guarantee to unlimited access to courts for civil claims. Prescription laws, as long as they are procedurally clear and impartially applied, do not offend the Constitution.
3. The Fragmented Legal Framework on Prescription in Lesotho
Despite the constitutional validity of prescription being upheld, the broader legal framework governing prescription in Lesotho remains unsatisfactory and fragmented.
3.1 Absence of Codified Prescription Law
There is no comprehensive statute consolidating prescriptive periods across civil claims. The Prescription Act of 1861, still in force, provides only limited coverage for certain debts and suspends prescription in favour of legally disabled persons, such as minors. It makes no provision for delictual claims or many modern contractual obligations.
3.2 Specific Statutory Provisions
Certain statutes contain their own prescriptive rules. Most notably, section 6 of the Government Proceedings and Contracts Act 1965 imposes a two-year prescription period for claims against the Government and its servants, coupled with a mandatory one-month notice period.
These provisions continue to govern significant areas of litigation and pose hurdles for litigants, particularly those unaware of their technical requirements.
3.3 Reliance on Roman-Dutch Common Law
In the absence of statutory guidance, recourse is had to the Roman-Dutch common law received through the General Law Proclamation No. 2B of 1884. Under this body of law, the applicable prescriptive period varies depending on the nature of the claim, be it contractual, delictual, or otherwise. However, the relevant principles are not codified or easily accessible to practitioners, let alone lay litigants.
4. Judicial Recommendation for Reform
In Nkuebe, the Court of Appeal urged the legislature to enact a new Prescription Act that codifies prescriptive periods for all categories of civil claims. The judgment recommended that the new legislation:
- Prescribe fixed periods applicable to various classes of civil claims;
- Specify clear rules for the suspension or interruption of prescription in cases of incapacity or legal disability;
- Avoid multiple conflicting prescription periods across statutes; and
- Align with constitutional guarantees, particularly those relating to equality (section 18), non-discrimination, and legal certainty (section 19).
Such reform would not only enhance legal clarity but also promote fairness, accessibility, and predictability in civil litigation.
5. Conclusion: Prescription in Search of Coherence
The current legal position in Lesotho accepts the validity of prescription periods as a necessary procedural mechanism to ensure finality in litigation. However, the fragmented nature of the legislative framework creates confusion and undermines access to justice. The call by the Court of Appeal for a unified, constitutionally compliant prescription regime remains unheeded.
Practitioners must remain vigilant in advising clients of time limitations applicable to their claims. For the State and Legislature, the imperative is clear: to enact modern, accessible legislation that reconciles the objectives of legal certainty with the demands of fairness and constitutional legitimacy.