CIV/T/122/84

IN THE HIGH COURT OF LESOTHO
In the
matter of

MAHOMED MHAISKER
v

FIDELIA REZANT 1st Defendant

MAHOMED
ASLAM ABUBAKER 2nd Defendant

COMMISSIONER
OF LAND 3rd Defendant

JUDGMENT

Delivered by the Hon. Mr. Justice J.L Kheola on the 26th
day of March, 1986

The Plaintiff is asking this Court to make a declaration
that the transfer of lease No. 22124-005 from the First Defendant to
the
Second Defendant is null and void and order that the Third
Respondent should transfer the said lease to the Plaintiff In the
alternative
Plaintiff claims payment by First and Second Defendants
jointly and severally of the sum of R50,000 damages for loss of
occupation
and use of the said improvements on the said site.
Alternatively payment by First Defendant of the sum of R50,000
damages for breach
of contract.

The Plaintiff has testified that on the 6th February,
1979 he and the First Defendant entered into a contract of purchase
and sale
of three houses belonging to the First Defendant (Seller)
built on an unnumbered plot situated at Maputsoe. The terms of sale
read
as follows

"1. The full purchase price of the aforesaid plot
shall consist of the payment of R1,000 and a flat of block of eight
rooms
to be built for the SELLER on the site of the said SELLER lying
adjacent rooms at MAPUTSOE, in the Moholisa area.

/2. That the.....

-2-

2. That the said flat of block of eight rooms shall be
built in the following manner

(a) materials to be used in the building of the flat
shall consist of cement blocks, iron roofs and each room shall be
fitted with
one wooden door one window of six lights in front and one
window of six lights at the back of each room. Each room shall be 9
feet
by 10feet in dimension.

3 In the intervening period the SELLER shall make
efforts to

obtain the Certificate of Allocation, Form C, trans-

fering the plot on which the houses for sale are built

from her late father's name on to hers in preparation

for ultimate transfer to the BUYER

4. R1,000 shall be paid to the SELLER by the BUYER
after transfer of the site

The BUYER shall continue to pay R40 per month in rent,
in respect of the houses on the plot forming the subject of SALE here
until
the building of the said flat has been completed upon which the
payment of rent shall terminate."

The Plaintiff told the Court that the negotiations
preceding the signing of the deed of sale were conducted on his
behalf by his elder
brother, Mahomed Kassim Mhaisker. Prior to
entering into this deed of sale the Plaintiff had been a tenant of
the First Defendant.
He rented a building which he used as a butchery
and paid a monthly rental of R40-00 He claims that he used to give
the rental to
Kassim and expected him to pay it to the First
Defendant. He did this because he did not personally run the butchery
but hired a
person who managed it He worked for his brother-in-law
and got a salary of R200 per month.

Under cross-examination the Plaintiff admitted that on
the 6th February, 1979 when he signed the deed of sale he did not
have any
money in the bank but hoped that Kassim or his
brother-in-law would help him to pay the sum of R1,000 stipulated in
the contract
and also to build the eight rooms in terms of the
contract. At the moment he is not working. He denied that the First
Defendant did
not know him

/Mahomed ........

-4-

He had told her that he had some problems. The terms of
contract of sale to the Second Defendant were the same as those of
the deed
of sale between her and Kassim.

At the close of the Plaintiff's case an application for
absolution from the instance was made in respect of the Second
Defendant
I granted the application because in his evidence Kassim
told the Court that he never discussed the transaction between his
brother
and First Defendant with the Second Defendant. There was no
evidence that the Second Defendant knew that the property had been
conditionally
sold to the Plaintiff.

The parties put different interpretations to the
contract of sale which was handed in as Exhibit A. To me the terms of
the deed of
sale are simple and unambiguous. The first term describes
the "full purchase price" of the plot The purchase price
shall
consist of R1,000 and a flat of block eight rooms to be built
by the buyer for the seller on the plot. The second term relates to
the materials to be used in the building of the rooms and their size.

The Third term is more important. It states that in the
intervening period the seller shall make all efforts to obtain a Form
C (Certificate
of Allocation) transferring the plot on which the
houses for sale are built from her late father's name to hers in
preparation for
the ultimate transfer to the buyer It is important
to determine what period is covered by the phrase the "intervening
period".
It seems to me that the phrase refers to the period
between the signing of the contract and the time the Form C in the
name of the
First Defendant is obtained The fact that the Form C had
been obtained had to be communicated to the Plaintiff because he
could
not start building before the trnsfer into the name of the
First Defendant had been done. Regarding this point we have the word
of
the First Defendant against that of Kassim. She says that after
she had obtained the Form C she

/communicated

-3-

Mahomed Kassim Mhaisker confirmed that he negotiated the
terms of the contract of sale on behalf of the Plaintiff and made nis
role
quite clear to the First Defendant. He denies that the signature
in the deed of sale is his. He was present when the Plaintiff and
the
1st Defendant signed the contract before Mr Lephoma who had prepared
it for them. He claims that when he paid the rentals the
First
Defendant knew that he was doing so on behalf of the Plaintiff. All
the receipts were issued in his name He says that the First
Defendant
never told him that she had obtained transfer of the proper from her
late father's name to hers. She only came to him when
she was coming
to tell him that she had already sold the property to the Second
Defendant.

Kassim further told the Court that at one stage after
the signing of the contract the First Defendant unilaterally and
contrary to
the terms of the contract increased the rental from R40
to R50. When she again attempted to increase it from R50 to R60 he
(Kassim)
decided to retain one room and allowed the First Defendant
to let the other rooms to other people.

The First Defenant's version is that throughout the
transaction she had been dealing with Mahomed Kassim Mhaisker and she
never had
anything to do with the Plaintiff She saw the Plaintiff
for the first time in Court. She claims that the signature appearing
in
the deed of sale is that of Kassim. After she had obtained the
relevant documents i.e the Form C in her own name, she informed
Kassim
but the latter suddenly stopped paying rent and vacated the
premises leaving his brother-in-law Osman. The First Defendant
regarded
this as a cancellation of the contract by conduct on the
part of Kassim. She then sold the property to the Second Defendant
during
the middle of 1983. She says that when she told Kassim that
she had obtained the Form C he said he would come with his father but
he never came back.

/He had. ...

-5-

communicated this fact to Kassim who told her that he
would come with his father. He also said he had some problems and
stopped paying
rent. Kassim denies this.

That at one stage Kassim suddenly stopped paying rent is
supported by the copies of receipts handed in as exhibits by the
First Defendant
The last R40 paid in accordance with the terms of
contract was on the 3rd June, 1979 No payments appear to have been
made for July,
August, September and October, 1979. The next payment
was made on the 6th November, 1979 and it was the sum of R50. On the
4th December,
1979 the First Defendant gave Kassim notice that
because of his carelessness in the use of the rooms the rent would be
increased
to R60 with effect from the 1st January, 1980. The point I
am trying to make is that documentary evidence does show that Kassim
suddenly
stopped paying rent in July, 1979 and that when he again
started paying in November, 1979 it must have been under a different
agreement
because the rent was then R50. By agreeing to pay the new
rent different from the original agreement Kassim was accepting that
he
was then a tenant under new terms.

It seems to me that Kassim would not have accepted
paying new rent if he had not known that the original agreement had
been cancelled
because of his breach by failing to pay rent. He would
have realized that the First Defendant was breaching the terms of
contract
by increasin rent which was stipulated in the contract.

The fourth term is also interpreted differently by the
parties It reads R1000 shall be paid to the Seller by the Buyer after
transfer
of the site. The buyer shall continue to pay R40 per month
in rent, in respect of the houses on the plot forming the subject of
Sale
until the building of the said flat has been completed upon
which the payment of rent shall terminate. It is the Plaintiff's
contention
that the intentio of the parties was that the money paid
as rent was to be deducted from the

/R1000 . ...

-6-

R1000 stipulated as part of the purchase price The
First Defendant has denied this. The terms of the contract are very
clear that
pay­ment of rent had nothing to do with the purchase
price of P1000, rent was to be paid until the building of the rooms
was
completed and R1000 was to be paid after transfer of the property
to the Plaintiff (Kassim). If the parties had intended that R40
rent
must be deducted from the purchase price they would have said so.
They deliberately said R1000 would be paid after transfer
of the
property to the Plaintiff.

I have no doubt in my mind that this case is a typical
example of a case of error in persona The Plaintiff and his
brother Kassim have a common first name of Mahomeo The negotiations
in this sale were conducted by Kassim,
he paid rent and all the
receipts were issued in his own name of Kassim, he occupied the rooms
and one of the rooms was used as a
butchery. The butchery was managed
by an employee of the Plaintiff and it could not have been easy for
the Second Respondent to know
that the employee was working for the
Plaintiff and not For Kassim who was in occupation of the premises.
Another factor which caused
the mistake was that even before the deed
of sale was contemplated Kassim was already the tenant of the First
Defendant and was paying
rent in his own name

The question is whether or not the identity of the
parties, especially the Plaintiff was a material element of the
contract. If it
was a material element of the contract error in
persona will vitiate consent (Stephen v Pepler, 1921 E D
L. 70). In her evidence the First Defendant said that if she had
known that she was dealing with a boy of about 18 years
of age, she
would not have entered into this contract. At the relevant time the
Plaintiff was a minor who had to be assisted by a
guardian. It has
been suggested that the Plaintiff was emancipated because he had been
allowed to trade in his own name. The problem
with this submission is
that the Plaintiff and his elder brother have a common first name
His elder brother has several businesses
in the Leribe district

/The butchery...

-7-

The butchery at Maputsoe could well be one of such
businesses. If the licence is in the name of Mahomed Mhaisker, it may
refer to
any of them I come to the conclusion that the identity of
the Plaintiff in the instant case was a material element of the
contract
which had to be disclosed Kassim behaved in a rather
strange way because if he was paying rent on behalf of the Plaintiff
it was
his duty to see to it that the receipts are issued in the name
of the Plaintiff. It seems to me that he deliberately misled the
First
Defendant into believing that he was dealing with him (Kassim)

It has been submitted on behalf of the Plaintiff that
the fact that the contract was cancelled was never communicated to
the Plaintiff
(Swart v Vosloo, 1965 (1) S A. 100 (A.D ). The
First Defendant told the Court that after she had obtained the Form C
she informed Kassim. By so doing
she placed him in mora but he
did not perform part of his contract. According to the contract he
was supposed to start building the rooms as soon as the
Form C in the
name of the First Defendant had been obtained. Instead he stopped
paying rent and vacated the premises. The First Defendant
was
entitled to accept that Kassim had cancelled the contract and to sell
the property to whoever was interested. There is evidence
that the
First Defendant sold the property to the Second Defendant for the
same purchase price that had been accepted by Kassim.

The Plaintiff's claim is dismissed with costs.

J L KHEOLA JUDGE

26th March, 1986.

For Plaintiff - Dr. Tsotsi
For Defendant - Mr.
Snyman