LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) /25/2024 CCT/0462/2022
In the matter between –
TEBOHO CONSTRUCTION (PTY) LTD APPELLANT
And
RCJ EXPRESS (PTY) LTD RESPONDENT
CORAM: MUSONDA, AJA
CHINHENGO, AJA
VAN DER WESTHUIZEN, AJA
HEARD: 10 OCTOBER 2024
DELIVERED: 1 NOVEMBER 2024
SUMMARY
Rules of Court are there in the interests of fair litigation. Counsel often seem to assume that violation of the Rules will be condoned. Condonation is not to be taken for granted though.
In a dispute on moneys allegedly owed, the onus of proof is on the plaintiff. The cause of action cannot be changed by the defendant from specific performance under contract to damages under delict. Within the appropriate context, an email can prove a binding agreement.
Because of a lack of reasonable prospects, condonation for the late filing of a record is refused.
JUDGMENT
J VAN DER WESTHUIZEN, AJA:
Introduction
[1] This appeal against a judgment of the High Court by Kopo J deals with a dispute resulting from a contract between Teboho Construction (the principal; defendant in that Court; and appellant in this Court) and its clearing agent, RCJ Express (the plaintiff in the High Court; and respondent in this Court).
Condonation
[2] Rules of Court are there to ensure, or at least promote, due legal process and fair litigation. The appearance is often created in this Court that litigants and their legal representatives do not respect the Rules of Court and assume that condonation will be granted for the late noting of appeals and out of time filing of records and other essential documents.
[3] When counsel address this Court on condonation, the first point raised is more often than not that the application is unopposed, as if this binds the Court to grant condonation. Of course it does not. It creates pressure though on the judges, some of whom come from other jurisdictions and are only available on this Court during the two sessions per year. The risk is that it would seem petty to dispose of an appeal on the basis of the late filing of documentation, given the limited time during a session. The absence of opposition may be helpful for getting through a busy roll but is not at all good for the procedure of and respect for courts in Lesotho. Indeed, the main reason why condonation applications are unopposed, is often the fact that both sides are in the same boat and support one another’s sloppiness!
[4] Spending valuable hours, which should be used to arrive at the just adjudication of substantial disputes, on reading and considering condonation applications, containing numerous explanations for something quite basic, is not only a huge waste of time. It is also undignified for an apex court; and, for that matter, any court of law.
[5] In this case the appellant applied for condonation of its late filing of the record of the proceedings in the High Court. It was supposed to happen within three months of the noting of the appeal on 3 May 2024. In an affidavit, supporting the condonation application, the appellant’s general manager explains the lateness, mainly by referring to delays in the transcription of the record, which was only completed on 23 August 2024. While asking for condonation, the general manager fails to state in the affidavit when the record was finally filed … perhaps in itself a telling omission. From the stamp on the record, it appears to have been received on 28 August 2024.
[6] The period of lateness was not extraordinarily long. The explained reasons are understandable.
[7] However, apart from bestowing judicial approval or even tolerance onto sloppy litigation, it would make little sense to grant condonation in an appeal that is clearly doomed to fail. Therefore, an important question to take into account in the consideration of condonation, is whether the appeal holds reasonable prospects of success. This is dealt with below, whereafter a ruling on the condonation application follows.
Background
[8] In 2019 the parties entered into an agreement. As the appellant’s clearing and forwarding agent, the respondent had to clear and transport twelve containers of goods. The containers belonged to the Maersk shipping line. They arrived by sea in Durban, South Africa, from where they had to be transported to Maseru, Lesotho. This, the respondent did. The empty containers also had to be returned to Durban, which (subject to a dispute explained below) the respondent also did.
[9] The respondent then billed the appellant for the service, including the return of the empty containers at M9 500,00 per container. The appellant paid for the service, but not the return of the containers. So, the respondent approached the High Court with a claim of M114 000.00, being the cost of returning the twelve containers, plus interest and costs of suit.
High Court
[10] After a trial during which oral evidence was heard, the High Court found in favour of the respondent (as the plaintiff before the Court) and ordered payment of the amount claimed, plus interest and costs.
[11] The High Court judgment reflects the evidence by witnesses in some detail. The plaintiff’s witnesses testified that the respondent had previously also rendered services of the kind at stake for the appellant. Shipments were normally transported by rail. In this case the appellant changed the instructions from rail to road transport, to save time. Because this meant increased costs, the respondent sent an email, clarifying the costs of the return of the empty containers from Maseru to Durban, to the appellant.
[12] This email, sent on 8 February 2019, was presented to the Court as exhibit “D”. it states, inter alia: “Due to the changes for your container from Rail to Road, there will be more cost involved, please kindly check the below charges.” The eight “below charges” then include “Empty return: R9 500.00 / per container”. Thus, the respondent’s claim was based on the contract between the parties, as evidenced by the email.
[13] The appellant argued that the amount for the clearing and transport agreed to with the respondent was M27 243,52. The additional M9 500.00 per container, which brings the amount to M36 743.52, was not agreed to.
[14] According to the appellant, the email referred to was never received by it. Its only witness testified that he had indeed contracted the respondent to clear the goods; and subsequently instructed the respondent to transport the goods by road, instead of by rail. When he was orally informed that the change would cost M9 500.00 per container, he immediately asked why it was that expensive. He went on to enquire from other agents what the costs of returning the empty containers would be. Thereafter he told the chief executive officer of the respondent that he would get someone else for the return of the containers. He was told that it was too late, because the job had already been done.
[15] Thus, the appellant contended that there was never an agreement to pay M9 500.00 per container for their return from Maseru to Durban. The respondent’s claim of M9 500.00 per container was indeed a claim for damages, not a contractual one. And the respondent had not proven that it incurred M9 500.00 per container for the return, according to the appellant.
[16] The High Court identified the main dispute as whether the claim was for payment in terms of the contract; or for damages, for costs incurred upon returning the twelve empty containers from Maseru to Durban.
[17] The High Court judgment states that the inaccurate wording in the summons could easily give the impression that the claim was for moneys lent and advanced. This obvious mistake did, however, not prejudice the appellant. The respondent’s declaration clearly shows that the respondent’s claim was for services rendered in terms of the contract. The declaration showed though that the claim was for specific performance, based on the partly written and partly verbal agreement. between the parties.
[18] The High Court concluded that… “the plaintiff clearly pleaded that it charged the Defendant for the services it rendered. It did not claim the payment of the costs incurred.”
[19] From analysing the pleadings, the High Court proceeded to the question whether agreement had actually been reached on the return of the empty containers at the cost of M9 500.00 per container. Thus, it focussed on the above-mentioned email of 8 February 2019. Based on much circumstantial evidence, it found that appellant had indeed received the email. This, in spite of the appellant’s denial.
[20] The Court also referred to the submission by the respondent’s signing of the clearing instructions, presented to the Court as exhibit “H”. This bound the respondent to return the containers to Durban.
[21] After referring to academic authority and to e.g. the almost century old South African decision in Van Ryn Wine and Spirit Co v Chandos Bar (1928 TPD 417 at 423 – 424), as well as to Puma Energy Lesotho v Mothibeli Thomas Sehlabo ((CCA/0092/2021) [2022] LSHC116 (20/9/2022)) the High Court further concluded that the essentials of a valid contract were satisfied. The appellant had to meet its contractual obligations, namely, to pay M9 500.00 per container, as agreed.
This Court
[22] Unsurprisingly, the respondent supported the High Court’s judgment in this Court.
[23] Counsel for the appellant persisted with the appellant’s argument in the High Court that the respondent had sued for damages but failed to prove them. The High Court erred in finding otherwise.
[24] Counsel strongly stressed the importance of the evidence given by the witnesses during the trial. The respondent namely presented three invoices for M7 000.00 per container. These indicated that only three containers had been returned to Durban. As proven damages incurred by the respondent, the appellant was willing to pay the respondent M21 000.00. No proof was presented that the remaining nine containers had indeed been returned, let alone at what costs, according to the appellant.
[25] In answer to the above, it was submitted on behalf of the respondent that the invoices had not been presented as evidence of damages. They only proved the return of the containers. The invoices were mere examples, showing that the respondent had indeed met its contractual obligations by returning the containers, as agreed between the parties.
[26] From the Bench, the difference between the claimed amount of M9 500.00 per container and the M7 000.00 per container on the invoices was questioned. Respondent’s counsel unhesitatingly agreed that it was indeed “a mark-up”, based on the additional work the respondent had to do, after the appellant had changed the instructions from the previously agreed rail transport to road transport.
Issues
[27] To be decided by this Court are thus the following questions:
Was the respondent’s claim based on damages suffered by the respondent as plaintiff in the High Court; or for payment as specific performance to be rendered by the appellant, the defendant a quo, in terms of a contract between the parties?
Did the respondent prove the damages, or the claimed amount as payment due in terms of an agreement between the parties?
Consideration
[28] In spite of repeated questions from the Bench to the appellant’s representative about the legal basis for damages claim, no clear explanation was provided. The question remains unanswered. Damages cannot come from the air. One way to understand this is that law students are taught that legal obligations result from contract, delict, or a variety of other legal causes (captured in the Latin maxim ex variis causarum iuris figuriis (from a variety of private law causes), such as unjustified enrichment. The last mentioned did not enter the picture in this matter. The appellant failed to identify any delict, or other wrongful conduct, by the appellant, that could result in damages payable to the respondent.
[29] These leaves one with the alleged contract. The High Court placed the above-mentioned email of 8 February 2019 at the centre of the enquiry. It found that its receipt by the appellant had been proven. In view of the burden of proof in civil matters, namely a balance of probabilities, the High Court cannot be faulted in this regard. The email was indeed sent to the appellant’s correct email address. Only the appellant’s denial of receipt was offered from the other side. It is not for a court to speculate whether the appellant had not seen or read the email, for whatever reason, saw but ignored it, or falsely denied its receipt.
[30] As stated in the High Court judgment, the agreement between the parties was entered into verbally and in writing. The email clearly indicates that the respondent billed the appellant for the return of the containers at M9 500.00 per container. The fact that the appellant was unhappy, considered alternatives and informed the respondent as such. does not help it. The respondent’s assertion that it was too late to cancel the agreement, because it was in an advanced stage of execution when the appellant’s unhappiness was orally communicated, was not controverted.
Conclusion
[31] No material error or misdirection can be found in the High Court’s judgment and its order.
Back to condonation
[32] The appeal has no reasonable prospects of success. Therefore, the application for condonation of the late filing of the record cannot be granted, even though the period of lateness was not extraordinarily long and the reasons for the delay understandable. As stated above, condonation is not there for the taking, as often seems to be assumed by litigants and their legal representatives.
[33] The process that this Court, in many cases, has to interrogate fully the facts, law and submissions in a purported appeal, in order to find that the appeal should not have proceeded beyond an unsuccessful condonation application in the first place, is unfortunately circular and time consuming. However, it is necessitated by the need for fairness, protected in the Rules. Condonation may well be refused (conceivably with a punitive cots order against the relevant legal representatives), even when the appeal has reasonable merits, because of a flagrant violation of the Rules. As stated above, the Rules are supposed to ensure fairness in litigation.
[34] Condonation for the late filing of the record in this matter is denied.
Costs
[35] No reason has been put forward to deviate from the rule that costs must follow the result.
Order
[36] In view of the above –
the application for condonation is dismissed; and
the appeal is dismissed with costs.
______________________________ J VAN DER WESTHUIZEN
ACTING JUSTICE OF APPEAL
I agree
___________________________ P MUSONDA
ACTING JUSTICE OF APPEAL
I agree
______________________________ M CHINHENGO
ACTING JUSTICE OF APPEAL
For the Appellant: Adv E.T Fiee
For the Respondent: Adv M.M Makara with
MS M Makhetla