CIV/A/25/84

IN THE HIGH COURT OF LESOTHO
In the
Appeal of

PAKI MOAKI Appellant

v

MOKETE THABA Respondent

JUDGMENT.

Delivered by the Hon, Mr Justice J.L. Kheola on the 27th
day of February, 1986

This is an appeal against the judgment of the Resident
Magistrate for the district of Butha Buthe in which he dismissed the
appellant's
claim for damages for breach of contract and upheld a
counterclaim in which the respondent claimed R1,000-00 as damages for
breach
of contract

The facts of this case are not very clear and to make
things worse the two written contracts are missing from the file.
However, the
facts seem to be that the appellant and the respondent
entered into a written contract. The terms of the contract were that
the respondent
was to build the appellant's house measuring 25 x 67
metres and 10 lines high. It was agreed that the respondent would be
paid the
sum of R3,500-00. It is common cause that some time after
the respondent had started building, the appellant decided to
increase
the size of the house to 25 x 76 metres while the height
remained the same. It was agreed by the parties that remuneration of
the
respondent would have to be increased by R1,500-00. A new written
contract was entered into showing the new dimensions of the house
and
the new remuneration.

It appears that before the respondent completed the
building according to the second written contract, the appellant
again wanted
to

/make

-2-

make a change to the building by increasing its height
by two lines.

He, however, refused to increase the remuneration of the
respondent accordingly. The respondent alleges that the appellant
expelled
him at this stage and employed another builder.

The learned Resident Magistrate conducted an inspection
in loco and was convinced that the respondent had built up to
what he calls the face canopy. I wish he would have been more precise
because
the contract refers to 10 lines The respondent deposed that
he was expelled after he had reached the 10th line and this is, to
some
extent, confirmed by the observations of the court during the
inspection in loco. If that is the case, the respondent has
fully complied with the second written agreement and was entitled to
the balance of R1,500-00.
But he is claiming only R1,000-00 as
"profit if he had worked the building to a finish as
the house was R5000-00" (See page 5 of the proceedings lines
18-19). Further down on same page lines 26.29 the respondent makes it
clear that R3,500-00
was payment for the work he had done up to the
window level. He stated that the appellant did not pay him for the
two lines he built
above the window level.

The trial court found that the respondent had proved
that the appellant had breached the contract by increasing the height
of the
walls without increasing the respondent's remuneration
accordingly. I cannot say that the trial court misdirected itself on
this
finding because the appellant agreed that the respondent left
the building at window level but came back and built for three days
above the window level. It is for this work that the respondent
counterclaimed for R1,000-00. The learned Resident Magistrate was
wrong in saying that the sum claimed by the respondent was a balance
from R8,500-00 because the respondent had been paid only R2,500-00.
It is common cause that he was paid R3,500-00.

As far as the claim by the appellant is concerned the
trial court

/dismissed

-3-

dismissed it on the ground that it was the appellant who
was in breach of contract. I cannot accuse the lower court of any
misdirection
on this point. The claim of R2,000-00 has no basis at
all. If the appellant paid the new builder who completed the building
the sum
of R2,000-00, he is not entitled to recover the entire amount
from the respondent because if the respondent had himself completed
the building the appellant still had to pay him R1,500-00. If it had
been proved that the respondent had breached the contract, the
appellant would be entitled to damages in the amount of R500-00 which
is the difference between what he actually paid the new builder
and
what he would have the respondent.

The appeal is dismissed with costs.

J.L. KHEOLA JUDGE.

27th February, 1986.

For
Appellant - Dr. Tsotsi

For Respondent - Mr. Mofolo.