IN THE HIGH COURT OF LESOTHO
In the matter between
JOAQUIM DA SILVA FREITAS Plaintiff
CANDIDO FELICIANO DE FREITAS 1st Defendant
FRANK'S AUTO ELECTRICAL MASERU (PTY) LTD 2nd Defendant
Delivered by the Honourable Mr. Justice J.L. Kheola on the 22nd day of March, 1988
The plaintiff is suing the defendants for payment of the sum of M7,315-00 being money lent by plaintiff to defendants in November, 1985 which money is due and payable by defendants jointly and severally the one paying the other to be absolved, interest at the rate of 11% per annum from November, 1985 to date of payment and costs of suit.
The plaintiff and the 1st defendant are businessmen residing in Maseru. The 2nd defendant is a company carrying on business at Site 47 (b) Industrial Area, Maseru. It is owned by the 1st defendant who is the main shareholder and the managing director.
The plaintiff testified that in October, 1985 the 1st defendant came to his house and told him that he wanted to get three airtickets
from Portugal to Maseru. 1st defendant asked him to get a quotation for him. The plaintiff telephoned one Santos who is a travel agent in Johannesburg and was told that the price would be about M7,000-00 but the exact figure could not be given because the exchange rate was not constant.
The 1st defendant accepted the quotation and asked the plaintiff to get the tickets for him with his (plaintiff's) money Plaintiff says the 1st defendant said that he and the 2nd defendant would repay the loan by two equal instalments in November and December, 1985. 1st defendant explained that at that time he did not have the money for the tickets but pointed out that his business was doing very well.
The plaintiff accepted the undertaking and placed the order for three tickets. He drew a cheque in favour of Portour which is the name of the travel agent run by Santos. The 1st defendant had explained that the tickets were for the family of one Joachim Perreira who was employed by the defendants as a motor mechanic and was working at the premises of the 2nd defendant.
In cross-examination the plaintiff stated that it was not the first time he lent money to the 1st defendant, in 1983 1st defendant borrowed M500-00, in 1984 he borrowed M50000-00 when the 1st defendant bought a motorbike. The debts were repaid without any problems. The plaintiff admitted that he and 1st defendant were friends and visited each other's houses from time to time. He denied that he told 1st defendant that he had advanced money to Perreira and that he asked him (1st defendant) to deduct a certain amount from Perreira's salary every month and pay it to him. He denied that when he heard that Perreira had been dismissed he became very angry and told the 1st defendant that he would be sorry for what he had done.
Joachim Perreira testified that he arrived in Lesotho on the 15th September, 1985 and immediately started working for the defendants as a motor mechanic at a monthly salary of Ml,300-00. He left his wife and two daughters in Portugal hoping that they would join him at a later stage. About a month after he started working for defendants, he approached 1st defendant and informed him that he would like that his wife and children should join him. As he did not have money at that time, he asked 1st defendant to get the airtickets for him and then deduct a certain amount from his salary every month until the whole amount was recovered.
The first defendant agreed and bought the tickets (Exhibits D1, D2 and D3). He then telephoned his wife in Portugal instructing her to collect the tickets from a travel agency He says that the 1st defendant had told him that he would get the money for the tickets from a friend in Maseru named Freitas.
On the 15th December, 1985 the 1st defendant dismissed himi on the ground that the defendants were not making any profit. He admitted that at the time of his dismissal he was involved in police investigations concerning a car he had bought from a man from Mozambique. It was alleged that the car was stolen.
in his evidence De Silva testified that on one occasion the defendant telephoned him and asked him to find out from travel agents in Bloemfontein the price of three air tickets from Lisbon to Johannesburg. The defenant said the tickets were for his wife and children. The quotation from Bloemfontein was M7,500-00 and defendant said Johannesburg was cheaper than Bloemfontein. The evidence of this witness must be ignored because he appears to be unreliable. The 1st defendant testified that when the Court adjourned for lunch De Silva came to
him and apologised for having given evidence against him and gave the impression that he had been forced to come and give false evidence.
The plaintiff testified that he telephoned De Silva in Ladybrand after the alleged apology was reported, but De Silva denied that he had done such a thing The problem with this witness is that he lives in Ladybrand in the Republic of South Africa outside the jurisdiction of this Court. There was an allegation that he said he would not come to Lesotho again even if he were served with a subpoena. His evidence was so neripheral that it did not carry the plaintiff's case any further.
The first defendant denies that he ever borrowed the money claimed by the plaintiff in the present case. He admits that he did borrow an amount of M5,000-00 from plaintiff and repaid it by monthly instalments. He owns the 2nd defendant, a restaurant, Molimo-Nthuse off sale and a night club. Perreira started working for him as a motor mechanic in September, 1985. About a month after he started working for him he said he wanted his family to join him and borrowed money from him to pay for them to come to Lesotho. The 1st defendant says that he refused to do so on the simple ground that he did not know him well enough as he had worked for him for hardly a month. About four days later Perreira told him that he had found some one who was prepared to lend him the money.
About a week later Perreira came to him and told him that his wife and children had arrived and asked him to give him more furniture for the house. 1st defendant gave him more furniture because under the terms of their contract the employer provided accommodation and furniture. Before Perreira's family arrived
the 1st defendant met the plaintiff near Maseru Roller Mills and told him that he (plaintiff) had lent money to Perreira to pay for the airtickets of members of his family from Portugal to Maseru. He asked the defendant to deduct a certain amount from Perreira's salary and pay it to him. The first defendant said there would be no problem if Perreira agreed.
The first defendant says not long after his wife and children had come to Lesotho, Perreira bought a vehicle suspected of having been stolen. When he asked him about the vehicle and why he had bought it he became cheeky and said that he (1st defendant) wanted the vehicle for himself. One day Mr. Wilson, who is the manager of the 2nd defendant, reported that Perreira was always taking time off and that the work was suffering. 1st defendant dismissed him on the 16th December, 1985.
A few days later the plaintiff came to the workshop and was furious. He said the 1st defendant had made a big mistake by dismissing Perreira. He then said that they should sort out their accounts and settle them. 1st defendant owed the plaintiff the sum of M400-00. He paid it and plaintiff was expected to bring a receipt About two weeks later plaintiff came and demanded M7,315-00. He told him that he knew nothing about it and refused to pay it.
Antonio Manuel is a manager of a shoe manufacturing company in Maseru. He met Perreira in Portugal in December, 1984. In the course of their conversation Perreira asked him to get a job for him in Lesotho. Manuel came back to Lesotho in January, 1985 and asked the 1st defendant whether he could be interested in a motor mechanic from Portugal. He was interested and made an offer which was accepted
by Perreira. Manuel visited Perreira after he had come to Lesotho and on several occasions he told him that he would like that his wife and children should join him. He said 1st defendant had refused to lend him the money to pay for their air tickets. On the last occasion Manuel says that Perreira had told him that the plaintiff (Freitas) had lent him the money.
Manuel Aldeira testified that he is the owner of a bottle store at Maseru railway station. His evidence is to the effect that Perreira works for plaintiff as a motor mechanic and that he has often seen Perreira and plaintiff together. One Sunday he met Perreira at the Portuguese Club, he was crying and saying that he wanted his wife to come back to Lesotho. He said that on the first occasion when his wife and children came to Lesotho he borrowed money from the plaintiff and that he had already repaid it. He was saying that he would again have to go to plaintiff and borrow money because His wife had gone back to Portugal without his permission.
Owen Wilson is the father-in-law of the defendant and the manager of the 2nd defendant. His evidence is to the effect that during the period October, 1985 to December, 1985 the defendants were in a very sound financial position and had more than seven and half thousands maloti in their accounts. If the 1st defendant decided to buy tickets for Perreira there was no need for him to borrow money from plaintiff because he had sufficient money to pay for the tickets. At about the same time the 1st defendant opened a night club for which he had to pay for a licence and a few thousands a of maloti were involved, he owned restaurant and the 2nd defendant.
In October, 1985 he (Wilson) sold his farm for M50,000-00 and saved M20,000-00. He says if the 1st defendant wanted to borrow
M75QO-00 for the tickets he would have borrowed if from him because he had previously lent him money. On the day the plaintiff and 1st defendant settled their accounts there was no mention of a debt of R7,315-00.
The issue in this case is whether there was a loan to the defendants by the plaintiff. The burden of proof is on the plaintiff to show on a balance of probabilities that there was a loan. Mr. Pearson, counsel for the plaintiff, submitted that the balance of probabilities is in favour of the plaintiff. He submitted that Perreira came here on his own. However, an employer is not going to expect a married man to live alone without his family. The employer would easily advance money to his employee because it would be easy for him to recover his money by deducting a certain amount from the salary of the employee.
I agree that an employer can be expected to take interest in the welfare of his employee, but that will depend on how well he knows his employee. He (the employer) can only crust the employee after he has worked for him for a reasonable time In the present case Perreira had worked for the defendants for about a month when he borrowed a substantial amount of money from the 1st defendant. He naturally told him that he had not known him long enough to have a trust in him. If the 1st defendant had known Perreira and had personally recruited him, one would look at the matter in a different light. Perreira came to Lesotho on his own and did not know the 1st defendant before he started working for him.
I do not mean that the 1st defendant did not care about the welfare of Perreira. He oared for him to the extent that he provided
free accommodation for him and when his family arrived he provided more furniture. After ha had dismissed him he allowed him to remain in the house for some time. Before he could know Perreira well, he got involved in the purchase of a vehicle suspected of having been stolen and kept it in the premises of the 2nd defendant
If the 1st defendant had borrowed money from the plaintiff one would have expected him to have been very reluctant to dismiss Perreira because he would recover his money from the salary of Perreira. If he dismissed him he would not be in a position to recover it and yet he would still be under an obligation to pay the plaintiff. It seems to be unlikely that he would have dismissed Perreira if he had borrowed money from the plaintiff. Perreira says that the 1st defendant said it did not matter that the company would lose M7,315-00. I do not agree that the 2nd defendants were in such a strong financial position that they would not care to lose that large amount of money.
I find it improbable that the first defendant borrowed that large sum of money to help a man who was almost a stranger to him.
Mr. Pearson submitted that the plaintiff did not know Perreira and that he could not lend him MJ,315-00. He knew the first defendant very well and had previously lent him over M5000-00. It is not quite correct that he did not know Perreira. There is evidence by Wilson that the plaintiff often visited him at the workshop of the 2nd defendant and that they were friends. This evidence is supported by the fact that after his dismissal Perreira was seen working in the yard of the plaintiff. Manuel Aldeia also testified that the plaintiff and Perreira were friends and he had seen them together many times.
Plaintiff knew Perreira very well and seems to have been annoyed when 1st defendant dismissed him.
It is alleged that when he heard about the dismissal he rushed to 1st defendant's place and told him that he had made a big mistake. They decided to settle their accounts apparently because they did not want to have anything to do with each other after that day. Accounts were settled and the 1st defendant paid about M400-00 to the plaintiff. It is surprising that at that stage the plaintiff did not demand payment of M7,315-00 which was a very big debt. The plaintiff denies that accounts were settled but I believed the 1st defendant and his father-in-law.
The plaintiff wants this Court to believe that he lent M7,315 00 to the defendants but there is not a single document which shows that any money was ever paid to the 1st defendant. The cheque (Exhibit C) was made payable to Portour and the receipt (Exhibit B is in the name of Mr. Freitas, the invoice is in the name of Perreira. If the money was being lent to the 1st defendant the cheque ought to have been payable to him. He (1st defendant) would then have issued his own cheque payable to Portour. I find it most improbable that a businessman of plaintiff's standing could do such an unwise thing as to make the cheque payable direct to the travel agency when he was in fact helping the first defendant.
All the arrangements were made by him. He contacted the travel agency, he gave the names of Perreira's wife and children to the agency and accepted the receipt and the invoice and kept them until he decided to sue the defendants. It is surprising that he did not show the receipts to 1st defendant as soon as they arrived.
The first defendant testified that he visits Portugal every year. He says that if he telephoned DE Silva, it must have been his own children who were to travel to Maseru. However, he does not remember ever telephoning him It seems to me that the 1st defendant has a lot of experience in air travel arrangements and I see no reason why he could leave everything to the plaintiff as if he did not know what to do.
The evidence of Wilson is attached on the ground that if the defendants were in such a sound financial position, as he wants this Court to believe, he ought to have produced the books of account of the 2nd defendant. I think there is some substance in the criticism of his evidence but that does not mean that his evidence is entirely useless The 1st respondent owns not only the 2nd defendant but a number of other businesses which have not been declared insolvent One of the businesses, the discotheque, was opened at about the same time that Perreira joined the 2nd defendant. At that time 1st defendant appears to have been in a sound financial position because he could not open another business if he had no money
There is practically no evidence that at the relevant time the defendants were in any financial difficulties. Wilson has testified that if defendants wanted to borrow money, they would have borrowed it from him. He had just sold his farm and had the funds. There was no reason why the 1st defendant would prefer to borrow money from the plaintiff despite the fact that his father-in-law, with whom he had so many dealings, had the necessary funds.
The plaintiff has given the impression that he and Perreira were not friends, but as I have shown above the evidence of Wilson
and Aldera proves that they were friends. The evidence of the 1st defendant also proves friendship. Plaintiff is alleged to have been very angry when Perreira was dismissed. He had earlier told 1st defendant that he lent Perreira money and asked that 1st defendant deducts a certain amount from Perreira's salary every month to repay the loan. All these things show a very close relationship between Perreira and plaintiff. It is also significant that after Perreira was dismissed he was seen working in the yard of the plaintiff
Perreira finds himself in a very dangerous situation. He is unemployed and the plaintiff is showing some sympathy towards his plight. He is likely to give evidence favourable to the plaintiff because he is heavily dependent on him. However, he told Aldeia that he had already repaid the loan to plaintiff and that he would have to borrow from him again because his wife returned to Portugal without his consent and he wanted her to come back Aldera is an independent witness and struck me as a truthful witness who had no interest in the matter. On the other hand the plaintiff and Perreira did not strike me as forthright witnesses.
In the case of National Employers Mutual General Insurance Association v. Gany, 1931 A.D. 187 Wessels, J.A said
"Where there are two stories mutually destructive, before the onus is discharged the Court must be satisfied that the story of the litigant upon whom the onus rests is true and the other false. It is not enough to say that the story told by Clarke is not satisfactory in every respect, it must be clear to the Court of first instance that the version of the litigant upon whom the onus rests is the true version...."
It was submitted that the present case does not fall into the category of mutually destructive versions type of a case to which the above case applies. I agree with this submission because there are a number of probabilities to which I have referred and all of them are in favour of the defendants.
I have come to the conclusion that the plaintiff has failed to discharge his onus, his claim is dismissed with costs.
22nd March, 1988.
For the Plaintiff - Mr. Moiloa
For the Respondents - Mr. Redelinghuys.
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