The Prescription Bill, 2024 marks a transformative legislative shift in Lesotho’s approach to civil litigation time limits. Repealing the centuries-old Prescription Act of 1861, this new statute modernises the rules governing time-barred claims by introducing a more flexible, equity-oriented, and vulnerable-sensitive prescription regime. The Bill’s emphasis on a “public policy approach” represents a deliberate pivot towards legal parity and access to justice, particularly for minors, persons with disabilities, and other vulnerable groups.
Scope and Application
The Bill applies to natural and juristic persons, as well as government departments seeking remedial relief in civil proceedings. It introduces a uniform framework for determining when a claim becomes prescribed and provides for both fixed limitation periods and grounds for suspending or delaying those periods.
However, the legislation expressly excludes:
- Adverse possession claims over public land,
- Oral claims subject to other statutory limitation periods,
- Remedies sought against protected classes (e.g., minors, the mentally incapacitated, or those absent due to war or public service).
Importantly, the Bill is prospective in its application and does not affect claims arising before its enactment.
Fixed Prescription Periods
The Bill classifies causes of action and assigns specific prescription periods:
- General Civil Claims (Contract, delict, liquid debt instruments): 8 years
- Negligence, Trespass, Nuisance, and Breach of Duty: 2 years
- Defamation: 1 year
- Recovery of Money (e.g., rent, loans, services): 8 years
This framework aims to strike a balance between legal certainty and fairness, ensuring that litigants have a reasonable opportunity to seek relief while also protecting defendants from stale claims.
Suspension and Delays: A Protective Regime
One of the most progressive features of the Bill is its extensive list of conditions under which prescription periods may be suspended. These include:
- Fraudulent concealment of harm by the defendant;
- The claimant’s minority or debilitating disability;
- The claimant’s absence due to war, exile, or government duty;
- Ongoing conciliation, mediation, or arbitration processes;
- Unappointed executors in deceased estates.
Where minors are concerned, the Bill establishes a procedural safeguard framework involving the Children’s Court, judicial officers, and legal representatives to ensure that claims are not unjustly barred due to a guardian’s misconduct or neglect.
In cases of disability, the prescription period recommences only upon recovery or may pass to a legal representative upon death. The court retains discretion to evaluate the best interests of the minor or incapacitated person before prescribing any final procedural direction.
Added Claims and Judicial Discretion
The Bill introduces nuanced rules for amending pleadings and adding claims post-limitation. Added claims that relate to the same transaction or conduct as the original pleading may be permitted, provided they do not unfairly prejudice the other party. This ensures that justice is not sacrificed on procedural grounds and gives courts tools to manage litigation equitably.
Furthermore, section 15 explicitly empowers courts to override prescription periods in the interest of justice, taking into account any prejudice that may result from enforcing or denying a time bar. This reinforces the Bill’s emphasis on a flexible, values-based approach.
Acknowledgement, Agreement, and Part Payment
Prescription may be reset by:
- A written and signed acknowledgment of the debt;
- A partial payment towards the claim;
- A written agreement to extend the prescriptive period.
Such acts revive the enforceability of claims, but only under stringent requirements to protect against abuse and ensure clarity of intention.
Public Land and Resources Excluded
The Act expressly prohibits the acquisition of title over government land, public infrastructure, minerals, water bodies, and other state-owned resources via prescription. It preserves the State’s sovereign interests and revenue entitlements under leases and public agreements.
Repeal and Reform
The Prescription Bill repeals the Prescription Act of 1861 and section 6 of the Government Contracts and Proceedings Act of 1965. These statutes, relics of colonial legal architecture, no longer reflect the constitutional and social realities of modern Lesotho.
Conclusion
The Prescription Bill, 2024 represents a decisive break from rigid, colonial-era time limitations and replaces them with a progressive, rights-conscious framework. Its hallmark features, such as the public policy approach, protection of vulnerable claimants, and court discretion, reflect an effort to harmonise legal certainty with equitable access to justice. If enacted and implemented effectively, the Bill could significantly improve procedural fairness in Lesotho’s civil justice system.
Author’s Note: Legal practitioners and litigants alike should prepare to recalibrate their litigation strategies, particularly in cases involving minors, persons with disabilities, and multi-party civil disputes. The emphasis on procedural fairness signals a judicial and legislative commitment to restorative justice principles within Lesotho’s evolving constitutional order.
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