IN THE HIGH COURT OF LESOTHO
In the matter of :
JOAQUIM SILVA FREITAS Plaintiff
JARDAN DE JARDIN
JOAD VELHO REGO
Delivered by the Hon. Mr. Justice M.P. Mofokeng
on the 29th day of October. 1982.
The plaintiff sues the two defendants for an amount of
twenty thousand maluti and interest at a stated rate on the
plaintiff's Declaration. This was a loan which both defendants
undertook to repay to the plaintiff. The two defendants,
simply deny the existence of such a loan between them and the
In his evidence in brief, the plaintiff deposed that he
and the defendants were the best of friends. He often visited
at their business premises. Then the defendants requested a
loan of an amount of twenty thousand maluti (20,000.00) and
promised to repay it within a matter of days. The reason
for such a big loan was that the defendants wished to purchase,
from an unknown African gentlemen, a number of Kruger pounds.
The plaintiff, like a good friend he says he was of the
defendants, agreed but then stated that he did not have
such a large amount of cash money on his person nor did he
have it at home. He promised to draw money from the bank
the following day and would then be in a position to
grant the loan as requested. He charged no interest on
this huge loan.
The plaintiff also testified that he had a cheque cashed
at a Bank the following day. He was with Mr. Sebatana who is
his part-time mechanic. It was in bundles of ten maluti notes
of about a hundred maluti each. Thereafter it was placed in
en ordinary off-whitish Bank bag which are provided free to
customers. Plaintiff got off and took the "money" with him
and went round the defendant's premises. There he delivered
the required cash which was counted and placed in a small safe.
Plaintiff then left to join Sebatana in his car outside.
They drove off. Plaintiff is amply corroborated by this
independent witnesses in his evidence as briefly outlined above.
The promised days passed and nothing happened. He then
inquired when payment would be made. There began a saga of
Intrique which culminated with court actions, first in the
subordinate court and secondly in this Court. Trucks were
either loaned or held in security for payment of a loan;
false arrests were, in the process, made, to mention but a few
of the vile things that occurred after the demand of payment.
The plaintiff says that later the defendant agreed to
liquidate the payment of the loan by instalments of M2,000.00
per month. A postdated cheque was issued payable on 30/9/80
but on presentation it was returned with the following
inscription on the face of it: "Refer to drawer" which is a
Banking language of saying that there are no sufficient funds
to meet the payment of that cheque. I am referring to
"Exh.'B'". The defendants say this cheque was a security of
a loan of an equivalent amount the first defendant had
loaned from the plaintiff when he proceeded to Portugal on
holiday. It had nothing to do with a loan of M20,000.00
which they know nothing about. It will be seen shortly when
we deal with the demeanor of witnesses that the defendants
had previously made sworn statements in which they had denied
having borrowed any sum of money at all from the plaintiff.
The defendants say that the plaintiff wished to buy
Kruger pounds and lost a huge sum of M40,000.00. As usual,
he was swindled during broad daylight and all the parties
were present. However, the defendants could remember none
of these characters. Indeed, the chief negotiator was simply
referred to as the strange gentleman.
The second defendant called Mr. Simon Lipitsi as his
witness. This man is a salesman in his business. He was
engaged as such on that particular day when the plaintiff
arrived at the shop to bring the money. He says he went out
to see who was accompanying the plaintiff but found he was
alone. But it is common cause that Sebatana was In the car.
He gave the colour of the plaintiff's car as green whereas it
was white. The plaintiff presently owns a green coloured car!
He saw the plaintiff enter the door carrying a leather bag
but everybody agrees that the plaintiff carried the usual off-
white Bank bag in which money was contained. He was generally
not an impressive witness who lied deliberately and unshamedly.
This was a witness who had been brought patently to bolster
up the story of the defendants which in the words of the
plaintiff's counsel, was becoming "weaker and weaker".
The two defendants attested to Affidavits in Proceedings
in the subordinate court in which they categorically denied
ever having borrowed money whatsoever from the plaintiff at
any time. The second defendant ultimately found himself
having to say that he just signed the Affidavit without
knowing what was in it. Both defendants were greatly shocked
by the production of "Exh.B" because I think when the affidavits
were made it was thought that it had somehow disappeared. When
it appeared dramatically in Court, it had to be explained and
that is where, in my view, a web of lies began such as that
"Exh.B" was meant to be a security. Who ever heard of a
cheque being an instrument for security? A cheque is intended
to be paid into the Bank when it falls due.
The second defendant did not deny that there was discussion
regarding a building project. Why would the plaintiff be
interested in discussing such a venture with him for. The
proposal had been made, in my view, as that the second defendant
should undertake such a project and with the proceeds repay the
When the first defendant returned from a trip overseas
he found a handsome profit of M6,000.00 awaiting him. This
was a profit over a matter of about six weeks. The Books of
the Bussiness were requested and produced. I saw them. They
were not Books of Account from which any intelligible
information could be gathered. They were utterly useless.
If that Balance Sheet,(Exh.F) was a Balance Sheet which was
submitted to the Receiver of Revenue, somebody is telling a
lie somewhere on the defendants' side or was not given all
the necessary information.
First defendant now alleges that he subsequently paid the
plaintiff a sum of M2,000.00, not directly but through his
mechanic, one Moreira da Silvass. However, he never insisted
upon a receipt or some document to the effect that a cash
amount of M2,000.00 had been received by Moreira da Silvass.
This gentleman has denied the existence of such a transaction.
I believe him. I saw him. He appeared a truthful witness to me.
The defendants were both poor witnesses and were
obviously fabricating and each was forced to concede that
they told untruths either here in this Court or in the court
below. Each one of them is caught under a web of lies connected
with this loan which is advanced as a reason for making this
payment. (i.e. Exh.B). This case has demonstrated clearly to
me that the second defendant is a man who will say anything
on Oath or otherwise to advance what he thinks is in the best
interest of his case, regardless of what it is and regardless
of the truth. And the same can be said of the first Defendant
because he did know what was in the Affidavit. He knew what
was in the Affidavit and he disclaimed any previous loan
transaction or any loan with the plaintiff at all. The final
question to be answered is: why did the defendants make a payment
of M2,000.00? A person does not make payments for nothing.
Having rejected the web of lies surrounding the explanation
of this cheque (Exh.B), there remains one reasonable inference
namely that the defendants were liquidating a debt as the
The probabilities in favour of the plaintiff are enumerable:
there is the Sebatana incident; there is a cheque (Exh.'B')
and, of course, the incredible evidence of both the defendants.
The story of the M40,000.00 has proved to be a complete
In my view of the matter, the whole evidence of the
defendants and their witness is an incredibility and I do not
accept it. The probabilities are overwhelmingly in favour of
the plaintiff. He has discharged whatever onus was on him.
The judgment of the Court is as follows :-
(a) Payment of the sum of M20,000.00
(b) Interest thereon at 10% per annum a temporate morae
(c) Costs of the suit.
For Plaintiff : Mr. Sapire
For Defendants : Adv. Lombard. 29th October, 1982.
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