CIV/A/4/81
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
HLOMELANG LEROTHOLI Appellant
v
'MATHABO MANARE Respondent
JUDGMENT
Delivered by the Hon. Chief Justice, Mr. Justice
T.S. Cotran on the 24th day of September
1961

This is an appeal from the Judgment of the Senior
Resident Magistrate, Maseru (B.K. Molai, Esq) in which he
awarded the plaintiff, now the respondent, the sum of M1110
being the unpaid balance of instalments due on a Datsun
vehicle sold to the defendant, now the appellant, in March
1978 together with interest and costs. In this Judgment I
shall refer to the parties as the plaintiff and defendant.
The plaintiff wanted to sell her husband's car and
employed for this purpose Mr.attorney Masoabi to draft a
document. For reasons which appear later in this Judgment
this turned out to be a most unfortunate document for her.
The following is the full text of the agreement:-
"MEMORANDUM OF AGREEMENT OF SALE
MEMORANDUM OF AGREEMENT entered into by and between:
MATHABO MANARE(married woman)
on behalf of her husband TEBOHO MANARE
(hereinafter referred to as the Seller)
and
HLOMELANG LEROTHOLI
(hereinafter referred to as the Purchaser)
NOW THEREFORE the parties have agreed as follows :
(1)/    

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(1)
The Seller has agreed to sell and the Purchaser
has agreed to buy the vehicle Datsun 1804 1975
Model.
(2)
The Purchase price for the said vehicle is Two
Thousand and Two Hundred Rand(R2,200-00).
(3)
The amount of One Thousand Two Rand (R1.000) shall
be payable immediately upon the signature of this
agreement.
(4)
The balance of One Thousand Two Hundred(R1,200-00)
shall be payable within the next fourteen (14)
months from the signature of the Agreement and
shall be payable as follows:
(a)     The Purchaser shall with effect from
April 1978 and at the end of each sub-
sequent month pay the amount of One
Hundred Rand (R100)
(b)     All the monthly instalments shall be
paid promptly by the Purchaser at the
Attorneys Offices of CM. MASOABI &
COMPANY 2nd Floor, Motikoe House,
Leabua Highway, MASERU and such funds
or instalments shall be deposited in
the Trust Account of the Attorneys
for transmission to the Seller.
(5)
The Purchaser shall not be deemed to be in default
until after the lapse of thirty(30) clear days and
until the Attorneys of the Seller have given the
Purchaser fifteen(l5) clear days within which to
pay the arrear instalments.
THUS DONE and SIGNED at MASERU on this 8th day of
March 1978.
M. Manare        Hlomelang Lerotholi
SELLER   PURCHASER
AS WITNESSES     AS WITNESSES    
1        ..       1       
2                 2       

The agreement contains an artithmetical error. If the
purchase price was M2200 and the balance still unpaid was
M1200 to be settled at the rate of M100 monthly the balance
would have been cleared in 12 months not 14 months which is
the period that appears in Clause 4 of the agreement. The
declaration, drawn by Mr. Masoabi on behalf of the plaintiff,
also contains an error. She wanted the balance unpaid.
Mr. Masoabi knew what that balance was but he claimed M1600
and I am at a loss to understand as to how he arrived at this
/figure.

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figure. I shall not venture to guess whether these were
typographical errors or were symptomatic of the slovenly way
the affairs of this plaintiff have been handled.
The Datsun was duly delivered to the defendant. The
plaintiff was soon to depart from the country and entrusted
Mr. Masoabi with collecting the instalments. The first
instalment as per Clause 4(a) was due in April. It was not,
however, paid. It is common cause that in May the defendant
paid M60 and M30 on different dates at Mr. Masoabi's office.
In July 1978 the vehicle was stolen. No evidence was forth-
coming on the circumstances of this theft and since no one in
evidence suggested to the contrary I can assume with confidence
that the defendant was not negligently instrumental in its
loss.
The agreement is silent as to who is the "owner" pending
the payment of the instalments, and is also silent as to who
was to bear the incidence of risk in the event of damage or
loss to the vehicle. Now if we look at paragraphs 3, 5 and 6
of the plea, we see that defendant challenged plaintiff's
contention that ownership of the vehicle had passed to him.
He alleged that the plaintiff "and or" her attorney
(a)     failed to pass ownership of the vehicle to
enable him to register it in his own name,
(b)     that there was no proper delivery,
(c)     that the risk had not passed,
(d)     that he was not liable to pay the arrears
of the instalments.
To this the plaintiff, through her attorney, replied :
(a)     denying that she refused to pass ownership,
(b)     alleging that defendant was duly paying his
monthly instalments, (factually incorrect
for he was in default in April, May and June),
(c)     that "after delivery", the risk of loss or
profit "in fact and in law" was to be borne
by the defendant,
(d)     that her attorney was not "in law obliged"
to pass ownership since the vehicle did not
belong to him,
(e)     that alternatively, if the court should hold
that ownership had not passed, "nevertheless
the risk of loss of the car passed to the
defendant as purchaser at the time of delivery".
The pleadings are not particularly elegant. Learned
attorney for the plaintiff submissions on the law are not
entirely correct. In our law ownership is never passed by
/mere

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mere delivery "unless in addition to giving delivery the seller
has the intention of transferring the property and the
purchaser has the intention of becoming the owner" (per Juta AJA
Weeks v. Amalgamated Agencies Ltd 1920 (A.D.) 218 at 230). It
was clear from the defendant's pleadings that he intended to
prove that this contract of sale was in fact conditional on
the happening of an event even though the contract did not say
so expressly. Two matters were in issue: firstly whether such
evidence as the defendant sought to establish was admissible
and secondly whether, if it was, the defendant was able to
discharge the onus placed upon him which onus text book writers
and judicial precedents say is a heavy one indeed.
Some passages of the learned magistrate's Judgment were
rather curious. He certainly appreciated the law about
delivery and intent to pass ownership and the law about the
incidence of risk, but in sum total, he seems to have come to
the conclusion mero moto so to speak, that the text of the
agreement (supra) must prevail over the intention of the parties
thereto, and on his reading of the text, (there being no
suspensive or resolutive conditions) the sale of the vehicle
was unconditional and the risk therefore passed to the
purchaser even though the parol evidence adduced by both parties
to the agreement was definitely to the contrary.
I say mero-moto because no argument whatsoever was
advanced by either of the legal representatives about the law
relating to the circumstances under which parol evidence may
be admissible to vary or alter an agreement that has been
reduced into writing by the will of the parties. The law on
this subject is extremely complex but there are many exceptions
to the rule which the magistrate invoked and applied. There is
support for the proposition that a sale, absolute on its face,
may be proved by extrinsic evidence to be something else
(Phipson on Evidence 12th Ed. para 1904) and extrinsic evidence
is admissible to prove any matter which by substantive law
effects the validity (fraud or mistake come to mind) of a
document or entitles a party to any relief in respect thereof
notwithstanding that such evidence tends to vary, add to and in
some cases contradict the writing, e.g. defective or conditional
execution (Phipson, supra, para 1909 and see Hoffmann South
African Law of Evidence 2nd Ed. 212 at pp 215-216 (b) and (c),
Scoble The Law of Evidence in South Africa 3rd Ed. p.430 et seq
and MacKeurtan Sale of Goods in South Africa 4th Ed. p. 148 top
/of page

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of page at (c)). In Cambell Discount Co. v. Gall 196l(2) All
E.R. 104 at p. 107 B-E (partly overruled on other points not
relevant to the case before me in Branwhite v. Worcester Works
Finance, Ltd 1968(3) All E.R. 104, and departed from in United
Dominions Trust v. Western 1975(3) All E.R. 1017) Pearce LJ,
stated the rule thus:
"In Bank of Australasia v. Palmer(1897 A.C. 540)
Lord Morris said:
         parol testimony cannot be received
to contradict, vary, add to or substract
from the terms of a written contract, or
the terms in which the parties have
deliberately agreed to record any part
of their contract.'
Parol evidence can be used, however, to show
whether a written contract is void for mistake:
see cases cited in CROSS ON EVIDENCE at p.477:
or was signed subject to a condition precedent.
Moreover, in certain cases parol evidence is
admissible when it is relevant for the court to
find the true nature of the transaction.
The Hire-Purchase Acts(4), like the Bills of Sale
Acts, 1878 and 1882, and the Rent Acts(5), cannot
in my judgment be excluded by documents which,
though purporting to be outside the Acts, represent
a transaction which is in truth within it. Under
the two latter categories of Acts,(6) parol
evidence has always been admissible to show the
true nature of a written transaction which appears
to satisfy or exclude the Acts although that
evidence varies or contradicts the documents.
Such evidence is admissible here for the purpose
of showing that the true bargain was within the
Hire-Purchase Act, 1938, as amended (although
the written document is outside it) unless the
defendant is estopped from so contending."
The way the case was presented I think the defendant
should have been called upon to begin. Mr. Masoabi however
called his client into the box first and she admitted in
cross-examination as follows (pages 4 and 5 of the typed record
of the proceedings):
"This agreement was a kind of hire-purchase
agreement. The ownership papers for this
vehicle are with the defendant. The papers
are in my husband's name. The ownership
was to be changed when the purchase price
had been fully paid. I would say the
ownership of the vehicle still remains
with my husband".
The defendant testified as follows (p.6):
"On 8/3/78 I entered into a Hire-Purchase
Agreement with the plaintiff."
This Court is perepared to accept that the parties, who
/are lay,

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are lay, did not quite appreciate the legal niceties of the
consequences of the true nature of the transaction they entered
into. The plaintiff was not advised about the incidence of
risk nor was she told that by agreement this could be altered.
The parties were however ad idem that ownership was not to pass
until the instalments were fully paid. Learned attorney
Masoabi did not reflect this in the document he drafted on
plaintiff's behalf. Though the "ownership papers" were handed
to the defendant these it seems were limited to the Registration
Book. Passing the Registration Book simpliciter does not have
the effect of making the defendant the statutory owner in terms
of sections 11 and 24 of the Road Traffic and Transport Order
1970. The transferor (plaintiff) and the transferee(defendant)
have to sign Form TCI for presentation to the Licencing
Authority and the plaintiff implies that this was to take place
when all the instalments have been paid. The transferor is
enjoined by s.20 of the Motor Vehicle Insurance Order 1972 to
remove the third party token before delivery of the vehicle
and to inform his insurers of the name and address of the
transferee. This was not apparently done for defendant
testified (and this was not contradicted) that the papers and
the disc on that car were in the name of the plaintiff's
husband and that he (defendant) had not paid clearance, third
party and comprehensive insurance for it. This was a hire-
purchase agreement and it did not comply with the provisions
of s.6(2)(g)of the Hire-Purchase Act 1974.
There is no doubt that on the evidence, though the sale
looked absolute on the face of the document, it was in fact
subject to a true suspensive condition and not therefore a
"perfecta" sale. (Norman's Law of Purchase and Sale in
South Africa 3rd Ed. p. 157, and see also Wille and Mullin's
Mercantile Law of South Africa 3rd Ed. p.169, MacKeurtan's,
supra, p.154). That being the case the risk, in the event of
total loss not attributable to the default or negligence of
the purchaser remained with the vendor.
Judgment should therefore have been entered for the
defendant.
The appeal is accordingly allowed with costs here and
in the Court below.

CHIEF JUSTICE
24th September 1981
For Appellant: Mr. Kolisang
For Respondent: Mr. Masoabi