CIV/T/503/90 IN THE HIGH COURT OF LESOTHO
In the matter between:
CARLYLE MALEBO PLAINTIFF
VLESOTHO PLANT SERVICES RESPONDENT
Before the Honourable Chief Justice Mr. Justice B.P.
Cullinan on the 3rd Day of November, 1992.
For the Plaintiff : Mr. T. Poopa For the Defendant
: Mr. S.C. Buys
RULING Cases referred to:
(1) Corbridge v Welch (1892) 9 SC 277.
The plaintiff has closed his case and Mr. Buys on behalf
of the defendant applies for absolution from the instance.
The plaintiff's claim reads in part thus:
"4. On or about February, 1990 at the offices of
the defendant in Maseru the parties herein entered into a verbal
terms of which plaintiff would render services by using
his own trucks to load some loads of soil at or near the airport area
5. It was further agreed that Defendant will pay
the Plaintiff at the rate of Seventy Maloti (M70-00) per
hour for the services rendered as per the said contract.
Plaintiff duly performed his part of thecontract.
On the aforegoing Defendant is indebted to
thePlaintiff to the tune of THIRTY SEVEN THOUSAND ONEHUNDRED
AND EIGHTY SEVEN MALUTI AND FIFTY LISENTE(M37,187-50) being the
amount for the servicesrendered to Defendant by the Plaintiff.
Contrary to the contract aforementioned anddespite
demand defendant refuses to pay the plaintiffthe said amount."
It will be seen that the declaration does not state
when, or over what period the particular services were rendered.
7 of the declaration indicates that M37,187-50
represents the amount claimed in respect of all the services
rendered. The evidence
for the plaintiff establishes however that the
plaintiff rendered services over the period of February to July,
1990, both months
inclusive. Further, it transpires that the
plaintiff's claim is in respect of non-payment for services rendered
during the period
from 20th April to 31st May, 1990, both dates
Mr. Buys points to the declaration, which indicates that
the whole contract price was unpaid, the evidence of the plaintiff
otherwise, however. Mr. Poopa for the plaintiff submits
that the defendant could have applied for further particulars.
or not a defendant seeks further
particulars, does not however, as Mr. Buys submits,
absolve the plaintiff from the necessity of proving all of his case.
stand, the plaintiff's evidence contradicts his pleadings.
Mr. Buys submits that were the defendant to succeed in
this application, that would not shut the plaintiff out, as he could
come to Court again with a fresh summons. That is confirmed by
the following dicta of De Villiers C.J. in the case o Corbridge vWelch (1) at p.279:
"By long practice in the Courts of South Africa
"absolution from the instance" has acquired a wider range
than it possessed
in the Dutch courts. The latter Courts confined
this form of judgment to those cases in which a plea in abatement
would be successfully
pleaded according to the practice of the
English Courts. In this Colony, however, and, I believe, in the
neighbouring states, it
has been a constant practice to grant
absolution in cases where the plaintiff has not established the facts
in support of his case
to the satisfaction of the Court. At first it
was treated as equivalent to a non-suit, and confined to cases in
which evidence had
been given for the plaintiff only. In course of
time, however, it was extended to cases in which evidence for the
defendant had also
been given. It was found convenient to have a form
of judgment which would enable the plaintiff to take fresh
exposing himself to a plea of lia finita."
To compel the plaintiff to enter into fresh proceedings,
however, will only add to costs. The matter can be remedied by
and the authorities are legion that the Court will permit
amendment in the absence of mala fides, and injustice to
the other party which cannot be compensated by costs.
There is no evidence of either aspect before me.
Mr. Buys however submits that where a balance is owed,
one would expect the plaintiff to prove the rendering of all services
the part-payments made, and the balance owing. Further, he
submits that the plaintiff has but placed three invoices before the
without any supporting documents such as weigh-bills,
truck-drivers' records etc. Here, as I see it, the Court is concerned
the probative value of the plaintiff's evidence, I consider that
the Less 1 say about that aspect at this stage, the better. Suffice
it to say that the defendant has tendered three invoices and has
testified that no payment was made in respect of the services
in the said invoices. He has conceded that the defendant has
made payment in respect of some other services, and there is evidence
indeed that the defendant made a large payment much about the time
involved. The plaintiff led no evidence as to the particular
respect of which payment had been effected, and this
possibly may ultimately affect the outcome of the case. There is
evidence that payment has not been made in respect of the
services referred to on the three invoices before the Court.
The test is whether a reasonable tribunal might, but not
necessarily should, give judgment to the plaintiff, were the
defendant not to adduce any evidence to the contrary at
this stage, I emphasise that I do not have to decide what I might do
circumstances: the test is what a reasonable tribunal might
do. In all the circumstances, I find that a reasonable might, but not
necessarily should give judgment to the plaintiff, were the defendant
not to adduce any evidence to the contrary at this stage.
I will now entertain an application by the plaintiff to
amend his declaration, as previously indicated. Subject to
the application for absolution is dismissed.
In view of the proposed amendment, I will also entertain submissions
as to costs arising
from such amendment.
at Maseru this 3rd Day of November, 1992.
B.P. COLLINAN CHIEF JUSTICE
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