Thabelang Moeketsi & 2 Others V Lesotho General Insurance Co. Ltd (C of A (CIV) 48/2025) [2025] LSCA 72 (7 November 2025)

# Thabelang Moeketsi & 2 Others V Lesotho General Insurance Co. 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Ltd (C of A (CIV) 48/2025) [2025] LSCA 72 (7 November 2025) Copy citation * __Document detail * __Related documents * __Citations 2 / - Citation Thabelang Moeketsi & 2 Others V Lesotho General Insurance Co. Ltd (C of A (CIV) 48/2025) [2025] LSCA 72 (7 November 2025) Copy Media Neutral Citation [2025] LSCA 72 Copy Hearing date 8 October 2025 Court [Court of Appeal](/judgments/LSCA/) Case number C of A (CIV) 48/2025 Judges [Dr. Mosito P](/judgments/all/?judges=Dr.%20Mosito%20P), [Sakoane CJ](/judgments/all/?judges=Sakoane%20CJ), [Damaseb AJA](/judgments/all/?judges=Damaseb%20AJA), [Musonda AJA](/judgments/all/?judges=Musonda%20AJA), [Van der Westhuizen AJA](/judgments/all/?judges=Van%20der%20Westhuizen%20AJA) Judgment date 7 November 2025 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Civil Procedure](/taxonomy/case-indexes/case-indexes-commercial-civil-procedure) * [Human Rights](/taxonomy/case-indexes/case-indexes-human-rights) * [International law](/taxonomy/case-indexes/case-indexes-human-rights-international-law) * [Locus standi (standing)](/taxonomy/case-indexes/case-indexes-human-rights-international-law-locus-standi-standing) Summary ###### Flynote Constitutional Law — Locus Standi — Direct and Personal Interest — Section 22(1) of the Constitution of Lesotho. Read full summary * * * Skip to document content ###### Flynote Constitutional Law — Locus Standi — Direct and Personal Interest — Section 22(1) of the Constitution of Lesotho. LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C of A (CIV) 48/2025 CC/0014/2022 In the matter between THABELANG DAVID MOEKETSI 1ST APPELLANT LIMAKATSO TAASO 2ND APPELLANT MOLAHLOE SIMON MOSOLA 3RD APPELLANT AND LESOTHO GENERAL INSURANCE CO LTD 1ST RESPONDENT MINISTER OF PLANNING AND DEVELOPMENT 2ND RESPONDENT MINISTER OF FINANCE 3RD RESPONDENT MINISTER OF LAW AND CONSTITUTIONAL AFFAIRS 4TH RESPONDENT ATTORNEY GENERAL 5TH RESPONDENT CORAM: MOSITO P SAKOANE CJ DAMASEB AJA MUSONDA AJA VAN DER WESTHUIZEN AJA HEARD: 8 OCTOBER 2025 DELIVERED: 07 NOVEMBER 2025 2 FLYNOTE Constitutional Law — Locus Standi — Direct and Personal Interest — Section 22(1) of the Constitution of Lesotho. An applicant seeking to challenge the constitutionality of a statutory provision must demonstrate that the alleged contravention of the Bill of Rights occurs “in relation to him or her” within the meaning of section 22(1) of the Constitution. It is insufficient merely to assert that the provision is discriminatory or unfair; the applicant must plead facts showing that the impugned law directly affects his or her rights. Motor Vehicle Insurance — Section 8 of the Motor Vehicle Insurance Order 1989 — Limited Liability for Compensation — Eligibility. Only persons falling within the categories of passengers specified in section 8(1)(a) — those conveyed for reward, in the course of business, or in the course of employment — are entitled to claim compensation under the statutory scheme. Passengers who do not fall within these classes, or who fail to prove that they were lawfully conveyed for reward, have no claim under the Order and hence no standing to challenge its constitutionality. Practice and Procedure — Constitutional Challenge — Locus Standi a Threshold Requirement. The High Court correctly dismissed the application without considering the merits of the constitutional complaint because the appellants lacked locus standi. Standing must be established on the founding papers by showing a direct and substantial interest in the operation of the impugned provision. It cannot be inferred or cured in reply. Held: The appellants, as passengers who failed to prove conveyance for reward, in the course of business, or in employment, were not within the protective ambit of section 8(1)(a) of the Motor Vehicle Insurance Order 1989. The impugned 3 provision did not apply in relation to them; they therefore lacked standing under section 22(1) of the Constitution to mount a constitutional challenge. Appeal dismissed — No order as to costs. JUDGMENT P.T. DAMASEB AJA Introduction [1] This is an appeal against the judgment and order of a full bench of the High Court (Ralebese J, with Makara J and Kopo J concurring) following a constitutionality challenge to s 8 of the Motor Vehicle Insurance Order of 1989 (the Order). Before the High Court, the appellants’ primary grievance as applicants was that the provision is unconstitutional because it limits the amount of money a victim of an accident can claim in respect of injuries suffered in a motor vehicle accident. [2] The High Court did not investigate the merits of that complaint because it came to the conclusion that the appellants lacked the locus standi to mount a constitutional challenge against the impugned provision. The present appeal lies against that conclusion and resultant order of the High Court. Context: compensation scheme created by the 1989 Order [3] The long title to the Order reads: 4 To provide for the payment of compensation for certain loss or damage unlawfully caused by the driving of certain motor vehicles and to provide for matters incidental thereto. [4] As far as the present appeal is concerned, ss 6, 8, 9 and 141 of the Order constitute an integrated statutory framework 1 Section 6 reads: Liability of insurer 6\. (1) The insurer shall be obliged to compensate any person for any loss or damage which the third party has suffered as a result of – (a) Any bodily injury to himself; (b) The death of or any bodily injury to any person; In either case caused or arising out of the driving of a registered motor vehicle by any person in Lesotho, if the injury or death is due to the negligence or other unlawful act of the person who drove the registered motor vehicle or of the owner or his servant in the execution of his duty. (2) Notwithstanding subsection (1) the insurer shall also be obliged to make good under this section any loss or damage resulting from or arising out of the driving of a motor vehicle registered in Lesotho in such other place outside Lesotho as the Minister may prescribe. Section 8 reads: Limitation of Liability 8 (1) The liability of an insurer in connection with any one occurrence to compensate a third party for any loss or damage contemplated in section 6 which is the result of any bodily injury to or the death of any person who, at the time of the occurrence which caused the injuries or death, was being conveyed in or on the registered motor vehicle concerned, shall be limited in total- a) to the sum of M 12 000.00 in respect of any bodily injury to or death of any one such person who at the time of the occurrence which caused that injury or death was being conveyed in the registered motor vehicle in question, i) for reward ii) in the cause of the business of the owner of that registered motor vehicle; or iii) in the case of an employee of the driver or owner of that registered motor vehicle, in the course of such employment; and b) to the total sum of M60, 000 in connection with any one occurrence to pay compensation in terms of paragraph (a) to the third parties irrespective of the number of such person whose bodily injuries or deaths were caused or arose out of that occurrence. (2) Where the loss or damage contemplated in subsection (1) is suffered as a result of bodily injury to or death of an employee of the driver or owner of the motor vehicle concerned and the third party is entitled to compensation under the Workmen’s Compensation Act, 1977 in respect of such injury or death – (a) the liability of the insurer in respect of the bodily injury to or death of any one such employee shall be limited in total to the sum representing the difference between the amount which that third party could, but for the provisions of this paragraph, have claimed from the insurer or the amount of M12, 000 (whoever is the lesser) and any lesser amount to which that third party is entitled by way of compensation under the said Workmen’s Compensation Act, 1977; and (b) the total liability of the insurer in connection with any one occurrence to pay compensation in terms of paragraph (a) to third parties so entitled shall be limited to the sum of M60, 000 5 governing third-party motor vehicle insurance in Lesotho. Collectively, these provisions establish the insurer’s2 liability to irrespective to the number of such employees whose bodily injuries or deaths were caused by or arose out of that occurrence; (c) the insurer shall not be liable under the said Act for the amount of the compensation to which any third party is entitled thereunder; without however any liability of the insurer to pay costs awarded against it in any legal proceedings being affected by anything in this paragraph contained. Section 9 reads: Protection of insurer 9\. The insurer shall not be obliged to compensate any person in terms of this Order for any loss or damage – (a) for which neither the driver nor the owner of the motor vehicle concerned would have been liable if section 6 had not been included in this Order; or (b) suffered as a result of bodily injury to or the death of any person who at the time of the occurrence which caused the injury or death was being conveyed in circumstances other than those set out in section 8 of this Order. (c) if the claimant is unable to identify whether the motor vehicle or the driver thereof. (d) suffered as a result of bodily injury to any person who; i) unreasonably refuses or fails to subject himself, at the request of the insurer and at the cost of the insurer, to any medical examinations by a medical practitioner designated by the said insurer; ii) refuses or fails to furnish the insurer at its request and cost, with copies of all medical reports in his possession that relate to the relevant claim for compensation; iii) refuses or fails to allow the insurer at its request to inspect all records relating to himself that are in possession of any hospital or his medical practitioner; iv) unreasonably refuses or fails to submit to the insurer together with his claim form as prescribed by regulation, or within a reasonable period thereafter and if he is in a position to do so, an affidavit in which particulars of the accident that gave rise to the claim concerned are fully set out; v) refuses or fails to furnish the insurer with copies of all statements and documents relating to the accident that gave rise to the claim concerned, within a reasonable period after having come into possession thereof; or vi) refuses or fails to furnish in writing within a reasonable period such further particulars of the said accident as the insurer may require. Section 14 reads: Claim for compensation lies against the insurer 14\. When a person is entitled under this Order to claim from the insurer any compensation in respect of any loss or damage result from any bodily injury to or death of any person caused by or arising out of the driving of a registered motor vehicle under this Order by the owner thereof or by any other person with the consent of the owner, the first mentioned person shall not be entitled to claim compensation in respect of that loss or damage from the owner or from the driver who drove the vehicle as aforesaid or if that person drove the vehicle as a servant in the execution of his duty from his employer, unless the insurer is unable to pay the compensation or its liability has been terminated under section 7. 2 In this case the first respondent, appointed by the Minister under the 1989 Order in terms of s 2(b) which describes an ‘insurer’ as ‘a person who, or an association of persons which is entitled to carry on insurance business in Lesotho and has established domicilium citandi et executandi in Lesotho. . .’ 6 compensate motor vehicle accident victims, define the limits of that liability, prescribe circumstances under which it is excluded, and preserve the victim’s common law right to proceed directly against the actual wrongdoer. [5] Section 6 lies at the core of the scheme. It creates a statutory duty on the insurer to compensate a third party for loss or damage suffered as a result of bodily injury to, or the death of, any person caused by or arising out of the driving of a registered motor vehicle in Lesotho. The liability arises where the injury or death results from the negligence or other unlawful act of the driver, the owner, or a servant of the owner acting in the course of employment. [6] The section thereby substitutes the insurer in place of the wrongdoer, so that victims of motor vehicle accidents are compensated even where the negligent party lacks the means to meet the claim. [7] Section 8 qualifies and limits the general liability created under s 6. It prescribes monetary ceilings and defines categories of persons whose injuries or deaths attract compensation under the Order. Where an injured or deceased person was being conveyed in or on the registered motor vehicle at the time of the occurrence, the insurer’s liability is capped at M12 0003 per person and M60 0004 in total for all such persons affected by a single accident. 3 Section 8(1)(a) of the Order. 4 Section 8(1)(b) of the Order. 7 [8] The liability against the insurer only arises where the passenger was conveyed ‘for reward’, in the course of the owner’s business, or, in the case of employees, in the course of their employment with the owner or driver.5 [9] Subsection (2) of s 8 deals with the position of employees who are entitled to benefits under the Workmen’s Compensation Act, 1977. It provides that the insurer’s liability in such cases is limited to the difference between the compensation payable under the Order and the amount recoverable under the Workmen’s Compensation Act, subject always to the maximum limits stated. [10] Section 9 is a statutory safeguard for the insurer. It prescribes the circumstances in which the insurer is not obliged to pay compensation and imposes procedural duties on claimants. It provides that the insurer shall not be liable for loss or damage for which neither the driver nor the owner of the vehicle would have been liable if s 6 had not been enacted, thereby preserving the common law defences available to the insured. [11] The insurer is also not liable for injury or death suffered by persons conveyed in circumstances not contemplated in s 8, such as gratuitous passengers or those travelling without the owner’s consent.6 In addition, the section excludes claims where the claimant is unable to identify the vehicle or its driver,7 a provision 5 Section 8(1)(a)(i), (ii) and (iii) of the Order. 6 Section 9(b) of Order. 7 Section 9(c) of the Order. 8 evidently designed to guard against fraudulent or speculative claims. [12] In addition, s 9 places procedural obligations on claimants: a claimant must cooperate with the insurer by submitting to medical examination(s) at the insurer’s request and expense, providing medical records, hospital reports, and a sworn affidavit detailing the accident. The claimant must also supply any statements, documents, or further particulars required by the insurer within a reasonable period. Failure or unreasonable refusal to comply with these requirements disentitles the claimant to compensation.8 [13] Section 14 completes the statutory framework by preserving the common law right of an accident victim to proceed directly against the actual wrongdoer. It provides that nothing in the Order shall be construed as limiting or excluding the right of any person who has suffered loss or damage as a result of bodily injury or death caused by a motor vehicle to recover such compensation directly from the person liable under the common law. The section thus confirms that the statutory insurance scheme supplements, rather than supplants, the delictual liability of the wrongdoer. It ensures that an injured person retains the option to pursue a direct claim against the negligent driver or owner, even where the insurer is also statutorily liable. Relief sought [14] In the High Court, the appellants sought the following relief: 8 Section 9(d) of the Order. 9 ‘. . . 1. Declaring that section 8 of the Motor Vehicle Insurance Order 1989 (as amended); to be inconsistent with section 18 and 19 of the Constitution of Lesotho, 1993 and therefore unconstitutional in so far as the said section unfairly discriminates against passengers and victims of motor vehicle accidents on unspecified grounds. 2. (a) Declaring that a total sum of M60 000 allocated in connection with claims for one occurrence of the motor vehicle accident which covers compensation for individual limited claims of the sum of M12 000 in respect of any bodily injury to or death of any person to be unfair, insufficient, and invalid, and therefore remove limitation of liability on quantum. In the alternative; 2 (b) Ordering the respondents to re-compute the formula and revise the limited liability in the sums of M60 000 covering the whole accident and maximum sum of M12 000 to individuals for compensation to be compatible with the current inflation and cost of living for equitable distribution of funds concerned. 2 (c) Ordering the second to 5th respondents to urgently arrange for the amendment of quantum stipulated under section 8(1)(a) and (b) and section 8(2)(a) of the Motor Vehicle Insurance Order No. 26 (as amended) 1989 and align it with the current inflation since 1989. Incidentally, 3 Ordering the respondents to arrange for the amendment of the Motor Vehicle Insurance Order No. 26 of 1989 (as amended) to provide for statutory undertaking in respect of compensation for future medical expenses, costs for accommodation in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to him 10 resulting to injuries sustained by the victim in the motor vehicle accident, to compensate the plaintiff in respect of the said costs after and upon proof thereof; 4 Ordering that the invalidity, inconsistency and/or revised quantum will apply to and govern all claims instituted or to be instituted under the Motor Vehicle Insurance Order No. 26 of 1989 which at the date of this order: a. Have not prescribed; b. Have not been finally determined by judgements of the courts of first instance or on appeal; and c. Have not been finally determined by settlement duly completed. 5 Costs of suit in the event of opposition hereof. 6 Further and or alternative relief.’ What the appeal is about [15] In light of the far-reaching relief sought by the appellants in the court a quo, it is necessary at the outset to make clear what the present appeal is not about. We are not called upon to deal with the merits of the appellants’ claim that the relevant provisions of the Order are unconstitutional. That is so because the High Court did not determine the merits of the complaint and dismissed the appellants’ application on the ground that they lacked the locus standi to challenge the relevant provisions of the Order. The appeal is therefore confined to the question whether the court a quo correctly shut the door to the appellants for want of locus. [16] During the hearing of the appeal the appellants quite correctly conceded that they are not entitled to and do not pursue their grounds of appeal addressing the merits of the matter. 11 Relevant facts (relating to locus standi) pleaded by the appellants [17] The factual foundation of the case was that the first and second appellants were passengers in a motor vehicle owned and driven by one Thapelo Chele. They were travelling to attend a wedding of a friend. The bridegroom, their friend, had hired some cars, including the one they were travelling in, to transport them to the wedding. It is alleged that Chele ‘was trying to avoid a collision with a motor vehicle which was coming from the opposite direction and travelling in our lane while it was overtaking another motor vehicle coming from the same direction’. The vehicle of Chele overturned and the first and second appellants both sustained serious injuries; the first appellant suffered a spinal cord fracture leaving him permanently disabled and confined to a wheelchair. [18] The third appellant who made common cause with the first and second appellants, was injured in a separate accident when the vehicle in which he was a passenger overturned. On or about 17 April 2018 he was a passenger in a motor vehicle driving from Ha Makhoathi towards Roma. Whilst they were so driving ‘at or near Mahlabatheng GL Funeral Undertakers …the motor vehicle was driven in (sic) a high speed and the driver lost control as (sic) a result overturned’ and he sustained ‘severe injuries’. He alleged that he was accompanying the driver to show him directions to some place. 12 [19] All the appellants had lodged claims with the first respondent without success and therefore instituted action in the High Court for ‘third party claim compensation against the first respondent and the insured driver.’ The first respondent refused and or neglected and or failed, without any good cause, to compensate them in terms of the Order. [20] Therefore, the first respondent’s actions infringe upon their constitutional rights to be compensated, including for ‘past and future medical expenses and general damages from the third party compensation fund under its administration’. In the case of the first and second appellants it is alleged that the owner of the vehicle in which they were conveyed ‘does not have a capacity to compensate’ them. Therefore it is ‘unfair for the statute to shift a huge responsibility to him while there is a fund established to compensate victims and claimants such as myself. I have also contributed a lot in that fund as I used to own and drive a motor vehicle’. [21] The following further averments are made: ‘5.6. According to section 8(1) of Motor Vehicle Accident Order, No. 26 of 1989, my claim is categorised to be a limited claim because I was a passenger in a motor vehicle which its driver regarded to be negligent and the sole cause of the accident, since there was no collision with an identified motor vehicle which was travelling in our lane of travel. 5.7 As a result, and according to this impugned section 8(1), the 1st respondent is obliged to offer me compensation not exceeding the 13 maximum of compensation of M12 000 only and the whole accident is covered with M60 000 only. 5.8 I wish to aver that this section is invalid because it is inconsistent with section 18 and 19 of the Constitution of Lesotho. It is discriminating me from other passengers whose claims do not fall under limited claims in terms of section 8(1) of the Motor Vehicle Insurance Order, No 26 of 1989. 5.9 I also aver that section 8(1) of the Motor Vehicle Insurance Order is unfairly discriminatory in the manner it provides for compensation from the 1st respondent because all passengers should be treated equally without applicable of any uneven limitations. I strongly aver that the discrimination is on the categories of passengers and not directly the amount of compensation. 5.10 I am advised by counsel and verily believe it to be true that according to section 8(1)(b) and section 9(c) of the Motor Vehicle Insurance Order, the insured driver to be blamed for negligence is my driver only because we all failed to identify the registration numbers of motor vehicle which caused our unfortunate accident because it was travelling in our lane when our driver lost control of the motor vehicle when avoiding a collision. 5.11 In order to show that section 8, specifically subsection (i)(a) and (b) are unfairly discriminating against me and other applicants, as passengers, I am confined to a wheel chair as a result of the accident which I have not contributed to but the Law provides for an amount of only M60 000 to cover claims for all victims of accident and an amount not exceeding M12 000 per persons, even if I was the only passenger or claimant in the accident. This is unfair because I deserve to be compensated with an amount in money which is more than M60 000 as a result of the disability. 14 5.12 I aver that the accident happened in the middle of the night or early hours of the morning and it was difficult to see the registration numbers of the motor vehicle which was travelling in our lane. Even if the said motor vehicle was identified, the fact that there was no collision between the motor vehicles, this claim would still remain a limited claim in terms of section 8 of the order. 5.13 I therefore aver that section 8 of the Motor Vehicle Insurance Order no. 36 of 1989 as (amended) is unconstitutional as it fails to comply with the purpose and spirit of section 18(1)(d) and section 19 of the Constitution of Lesotho. Harm and Prejudice 6.1 I will suffer irreparable harm and prejudice if this court does not find the impugned provision is not declared invalid because my rights will be infringed by having been discriminated from other passenger of the motor vehicles and has to live my whole life is support of compensation of an amount of only M12 000 as a full and final settlement of my claim as would be guided by and allocated for limited claims in the year 1989, about thirty-two (32) years ago.’ [22] According to the appellants, their constitutional rights were infringed by s 8 of the Order ‘as being discriminatory and inconsistent and fail to comply with the spirit and purport of the Constitution of Lesotho. . . ’ First respondent’s answering affidavit [23] The first respondent resisted the application, raising at the outset the objection that the appellants lacked locus standi to institute the proceedings. It was contended that they had not shown that they fell within any of the categories of persons 15 contemplated by s 8(1)(a): namely passengers conveyed for reward, in the course of business, or in the course of employment. According to the first respondent, the first and second appellants had not established that they were conveyed for reward within the meaning of the Order or that the driver was authorised by permit under the Road Transport Act, 19819 to convey passengers for reward. The third appellant, it was said, had not alleged that he was conveyed for reward, in the course of business, or in employment. [24] In respect of all the appellants, it was stated that, since they had not shown that they were personally affected by the provision they sought to impugn, they had no standing to invoke the jurisdiction of the Constitutional Court. 9 Road Transport [Act No. 6 of 1981](/akn/ls/act/1981/6). 16 Locus standi [25] In limine, the first respondent maintained that the appellants had not demonstrated that they fell within the category of persons contemplated under s 8(a) of the Order. According to the first respondent, s 8(a) applies only to passengers conveyed for reward, in the course of business, or as employees, and the appellants had not established that they belonged to any of these categories. [26] With respect to the first and second appellants, the first respondent pointed out that although they alleged they were passengers in a vehicle hired by a bridegroom for a wedding, they had not provided evidence to prove that they were conveyed for reward. Their declarations (in a separate case) filed against the first respondent also contained no averments to that effect. Furthermore, the appellants alleged that another unidentified vehicle was involved in the accident. The first respondent submitted that if that unidentified vehicle was solely negligent, then, in terms of s 9(c) of the Order, the first and second appellants had no claim against the first respondent at all. [27] Regarding the third appellant, the first respondent pointed out that he had not alleged in his affidavit or declaration that he was conveyed for reward or in the course of employment. In the absence of such an allegation, he did not fall within the ambit of s 8(1)(a) and therefore had no claim under the Order. [28] The first respondent stressed that the appellants’ case was directed entirely at challenging the constitutionality of s 8. 17 However, since they had failed to demonstrate that they were personally affected by that provision, they lacked the necessary standing under s 22(1) of the Constitution to mount a constitutional challenge against it; and that the appellants did not sufficiently plead or establish a direct and substantial interest in the constitutionality of s 8 to bring themselves within s 22(1) and (2) of the Constitution. [29] For these reasons, the first respondent maintained that the application should be dismissed for want of locus standi. The High Court [30] As far as the disputed issue of locus standi is concerned, the court a quo upheld the in limine objection raised by the first respondent. It reasoned: ‘[10] To pass the locus standi threshold under section 22(1), the appellants should establish that they are directly adversely affected, or stand to be affected by the impugned provision in the context of the rights and interests that they are seeking to vindicate.’ [31] The court held that the mere fact that a passenger sustained injuries arising from the driving of an insured motor vehicle did not, without more, entitle such a passenger to compensation by the insurer. The passenger must fall within one of the three categories listed in s 8(1)(a) (i) to (iii) of the Order. [32] The court went on to consider whether the appellants indeed fall within the listed categories. With regard to the first and second 18 appellants, the court held that they failed to demonstrate that the vehicle they were traveling in was licensed to carry passengers for reward under the Road Transport Act: ‘within the context of s 8(1)(a)(i) read with s 2(1) of the Act, a passenger who is conveyed for reward in a motor vehicle that is not licenced for such purpose in terms of the Road Transport Act falls outside the scope of passengers that are eligible for compensation by the insurer under the Act’. [33] The court a quo concluded that no evidence was provided to show that the driver Chele held a valid permit authorising him to convey passengers for reward. As a result, it held that the first and second appellants had failed to establish that when the accident that caused their injuries occurred, they were being conveyed for reward as contemplated in s 8(1)(a)(i) of the Order read with s 2(1) of the Act. [34] The court found that these appellants had failed to establish that they have locus standi to challenge the constitutionality of the impugned section, as they failed to establish that they are eligible for compensation in terms of the impugned s 8 of the Order. [35] Concerning the third appellant, the court a quo held that the founding papers similarly did not establish in which of the three categories of passengers listed in s 8(1)(a) he fell. There was no indication whether he was being conveyed for reward, in the course of the business of the vehicle owner, or within the course of such employment when the accident occurred. The court rejected the 19 argument that the applicant was assisting the driver in locating a destination, as this was not substantiated in the founding papers. [36] In the result, the court concluded that the third appellant too failed to establish that he fell within the scope of passengers that are eligible for compensation in terms s 8(1)(a) of the Order. Accordingly, he also failed to establish locus standi to impugn the constitutionality of the provision. [37] The High Court upheld the first respondent's preliminary objection, finding that the appellants failed to establish their locus standi under s 22(1) of the Constitution. It held as follows: ‘Within the context of section 22(2) of the Constitution, a person who challenges the constitutionality of a statutory provision should establish the legal standing to do so by proving that the rights sought to be vindicated, are affected or stand to be affected by the impugned statutory provision’. Grounds of appeal [38] Dissatisfied with the judgment of the court a quo, the appellants appealed to this Court. On the aspect of locus standi, they assert: ‘. . . 1. The court a quo erred and misdirected itself in finding that the appellants have no locus standi to challenge section 8 of the Motor Vehicle Insurance Order of 1989. 2. The court a quo erred and misdirected itself in not finding that the appellants have a direct and substantial rights to challenge any 20 impugned section in the Motor Vehicle Insurance Order of 1989 which has a negative impact on them for the reason that they were involved in the motor vehicle accident and they are victims of the motor accidents which is regulated by this Act, Motor Vehicle Insurance Order, 1989. 3. The court a quo erred in not finding that the very same section, section 8 of the Motor Vehicle Insurance Order, 1989, unfairly discriminates against the appellants from being compensated in the similar manner as other victims of the motor vehicle accidents. 4. The Court a quo erred and misdirected itself in not delivering a clear determination on the rest of the prayers prayed for in the Notice of Motion.’ Submissions Appellants [39] Concerning locus standi, the appellants submit that by virtue of being involved in a motor vehicle accident, they had sufficient legal interest to ventilate their legal rights before the Constitutional Court. Contrary to what the court a quo held, that they have no locus standi, the appellants submit that in terms of s 22(1) of the Constitution, they have the right to challenge the provisions of the Order because they are victims of motor vehicle accidents. [40] The appellants submit further that they have locus standi because the Order denies them the right to be compensated like ‘other passengers’ involved in motor vehicle accidents. They submit that as victims of motor vehicle accidents they have a direct and substantial interest to institute the proceedings. 21 [41] They further argue that they have a direct interest because once the impugned provision is declared to be in conflict with the Constitution, they will have a right to be compensated like other victims without limitations contained in s 8 of the Order. First respondent [42] The first respondent supports the decision of the High Court dismissing the appellants’ application for lack of locus standi. In sum, it contends that the High Court correctly found that the appellants failed to show that they were persons affected by s 8 of the Order: the first and second appellants did not prove conveyance for reward or driver culpability, the third appellant did not show he fell within any statutory category, and all appellants failed to allege lawful conveyance or in the case of first and second appellant, identify the culpable driver. According to the first respondent, “reward” under s 2 of the Order excludes any unlawful reward under the Road Transport Act, 1981. Because the appellants did not allege that the driver had a permit to carry passengers for reward, their claims fell outside the statute. [43] In addition, s 9(c) of the Order bars claims if the driver responsible for the accident cannot be identified. The appellants failed to identify the driver responsible, further defeating their claim. Furthermore, s 9(b) excludes liability for passengers who are not conveyed for reward, in the course of business, or in the course of employment; and s 9(c) excludes liability where the responsible driver or vehicle is unidentified. Both exclusions applied here. 22 [44] They therefore did not demonstrate a contravention of their rights “in relation to them” as required by s 22(1) and (2) of the Constitution. [45] According to the first respondent, the appellants failed to plead or prove that their constitutional rights were directly affected by the statutory provision they challenged. Section 22(1) of the Constitution governs standing in constitutional matters and limits access to the courts to persons whose rights are contravened “in relation to” them. The appellants bore the burden of showing that s 8 of the Order applied to them personally and directly but failed to do so. [46] As concerns the court a quo’s finding that the appellants sought impermissibly to cure the defects in their pleadings in reply, the first respondent supports the court a quo and stresses that standing should have been established in the founding papers. Disposition [47] Section 22(1) of the Constitution provides: “If any person alleges that any of the provisions of sections 4 to 21 of this Constitution has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress.” 23 [48] In Letsika v Basotho Congress Party10 this Court correctly reaffirmed that standing requires a direct and personal interest in the subject matter.11 [49] It follows that, in a constitutional complaint, the applicant must allege that a right in Chapter II (Bill of Rights) has been or is likely to be violated and that the infringement is “in relation to” him or her (i.e., personal standing). In other words, to establish standing, an applicant must plead that the impugned law or conduct directly affects his or her constitutional rights and demonstrate that to be so with the necessary allegations. A mere say-so without alleging the necessary jurisdictional facts will not suffice. [50] The appellants’ complaint is not that the restriction of target beneficiaries in s 8(1)(a) is unconstitutional. Therefore, given the current compensation scheme under the Order, the only basis they could anchor their locus standi on is that they were the victims of accidents negligently caused whilst they were being conveyed in one or more of the capacities stated in s 8(1)(a). That is so because the only beneficiaries under the scheme are the categories of persons listed in s 8(1)(a). [51] On the pleaded facts, the appellants do not fall within any of those categories. The assertion that the Order discriminates 10 Letsika v Basotho Congress Party (C of A (CIV) 21/2022) [[2022] LSCA 56](/akn/ls/judgment/lsca/2022/56) (11 November 2022). 11 See Jonathan v Lephole and Others LAC (2017-2018) 198 and Marumo and Others v National Executive Committee of Lesotho Congress for Democracy and Another LAC (2011-2012) 240. 24 against them - compared to other persons in respect of which the Order imposes no limitation - could only be sustainable if the restriction to the defined categories was squarely challenged. At all events, barring the monetary caps under s 8(1)(a) and (b), the scheme makes no allowance for limitless quantum in favour of accident victims against the insurer. [52] The appellants have not demonstrated that the court a quo erred in concluding that they did not fall into any of the three categories of target beneficiaries in s 8(1)(a) of the Order. They had to demonstrate that as a jurisdictional fact. The impugned provision did not apply in relation to them. [53] According to the appellants, the quantum of liability falling on the insured is wholly inadequate: it requires either substantial increase; alternatively it should not be subject to any cap. Only a person covered by s 8(1)(a) would have the locus standi to challenge the monetary limitation of liability which is at the heart of the appellants’ grievance. [54] Therefore, only persons covered by s 8(1)(a) can challenge the constitutionality of the limitation in its present form. The High Court’s order dismissing the application for lack of locus standi is therefore unassailable and the appeal must fail. Costs [55] Considering that the appellants approached court raising constitutional complaints and it is not suggested that they acted 25 frivolously or vexatiously, there will be no order of costs and each party must bear its own costs. Order [56] The appeal is dismissed, with no order as to costs. _______________________________ PT DAMASEB ACTING JUSTICE OF APPEAL I agree _____________________________ K E MOSITO PRESIDENT OF THE COURT OF APPEAL I agree ________________________________ S.P. SAKOANE CHIEF JUSTICE 26 I agree ________________________________ P MUSONDA ACTING JUSTICE OF APPEAL I agree ________________________________ J VAN DER WESTHUIZEN ACTING JUSTICE OF APPEAL FOR APPELLANTS: ADV T.S. MOHASOA (briefed by Attorney L.M.A LEPHATSA) FOR FIRST RESPONDENT: ADV. P.B. FARLAM #### __Related documents ▲ To the top >