1

CIV/T/511/89

IN THE HIGH COURT OF LESOTHO
In the
matter of :

JOSEPH NYAMANE Plaintiff

and

LESOTHO STEEL PRODUCTS Defendant

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the 12th
day of December. 1995.

Plaintiff herein instituted, against the defendant,
an action in which he claims:

"(a) payment of an amount of M54,000;

2. 
   interest thereon at the rate of
   11% per annum
   calculated from 14
   days after the date of judgment
   to date of
   payment;

   
   

3. 
   costs of suit;

   
   

4. 
   further and/or alternative
   relief."

   
   

Defendant intimated intention to defend the action. No
minutes of pre-trial conference were, however, handed in pursuant to
the provisions
of

2 subrule (5) of rule 36 of the High Court Rules.
1980.

In his declaration to the summons, as amplified by
further particulars, Plaintiff alleged that on 6th November, 1985 he
had bought
a hammermill at the cost of M12,000. As proof thereof.
Plaintiff attached annexure "MM2" being a High purchase
agreement.
The hammermill was used to grind grain for members of the
public and plaintiff earned on the average, M70 a day.

In December, 1987, Plaintiff went to defendant's place
of business and requested that repairs be effected on his hammermill.
On 8th
December, 1987 Eddie Pelser and a certain Michael accordingly
came to Plaintiff's home, at Peka, and informed him that they had
been
sent by the defendant to repair and/or collect the hammermill
for repairs at the defendant's place of business. Acting as
defendant's
agents, Eddie Pelser and Michael removed the hammermill
to defendant's place of business for repairs. They at the same time,
collected
from Plaintiff an amount of M400 as deposit. Plaintiff
attached a form headed "Service Contract" and bearing the
letter
heads of defendant (annexure "MM1") as proof that
Eddie Pelser and Michael had been sent to him by the defendant and he
had paid the amount of M400 deposit.

3

On 22nd February, 1988 Plaintiff's Attorneys of record
addressed, to defendant, a letter by which a demand was made for the
return
of the hammermill, duly repaired, failing which reimbursement
of the M400 deposit, payment of M12,000 being the cost of the
hammermill
and collection commission. Notwithstanding demand, the
defendant refused and/or neglected to either return the hammermill or
pay
the M12,000. Nor did he reimburse Plaintiff with the amount of
M400 deposit.

In his declaration to the summons. Plaintiff further
alleged that sometime after the 22nd February, 1988, he went to
defendant's place
of business and demanded an amount of 41,650 being
his loss of earnings due to the deprivation of the use of the
hammermill for 596
days at the rate of N70 per day. Despite demand,
defendant refused and/or neglected to pay the M4l,650.

Consequently, plaintiff suffered damages, for which he
held defendant liable, in the amount of M54,050 calculated as
follows:

1. 
   value of the hammermill M12,000.00

   
   

2. 
   Deposit advanced 400.00

   
   

3. 
   Loss of income 41,650.00

   
   

4

Wherefor, Plaintiff prayed for judgment against the
defendant.

In its plea, defendant alleged that it was selling
hammermills. It was, however, not responsible for the repairs of any
of the hammermills
sold by it. It had, instead, entered into an
agreement, with a certain Eddie Pelser, whereby the latter attended
to the servicing
and repairs of the hammermills. Eddie Pelser was,
therefore, acting in his own capacity and not as its (defendant's)
agent or employee.

On 6th November, 1985 defendant sold a hammermill to the
Agricultural Bank for a total purchase price of M9,306. It did not
dispute
that Plaintiff subsequently bought the hammermill from the
Agricultural Bank and used it to grind grain for members of the
public.
It denied, however, Plaintiff's allegation that he had bought
the hammermill at the cost of M12,000 and used it to earn, on the
average,
an amount of M70 a day. Furthermore, defendant did not
dispute that the hammermill was subsequently removed from Plaintiff's
house
by Michael and Eddie Pelser who also collected the amount of
M400 deposit from him (Plaintiff).

According to defendant's plea, at the time he

wanted to fetch the hammermill for repairs, Eddie

5

Pelser did not know the location of Plaintiff's home.
He, therefore, asked for the assistance of Michael, an employee of
the defendant.
Michael was consequently given leave by the defendant
so that he could be free to assist Eddie Pelser. Defendant denied,
therefore,
Plaintiff's allegation that when they removed the
hammermill for repairs and collected the amount of M400 deposit Eddie
Pelser and
Michael were acting as its agents and/or employees.

Defendant acknowledged receipt of the letter of demand
from Plaintiff's attorneys of record. It, however, pleaded that it
was entitled
to refuse to effect the repairs to Plaintiff's
hammermill or, alternatively, pay the amount of M12,000, being the
cost of the hammermill,
together with the M400 deposit, to the
Plaintiff.

Defendant denied that Plaintiff had suffered damages in
the amount of M41,650, or at all, as alleged in the declarations to
the summons.
It, therefore, pleaded that it was entitled to refuse to
pay the amount of M4l,650, or any other amount, to Plaintiff in
respect
of the alleged loss of earnings or deprivation of the use of
the hammermill. wherefor, defendant prayed that Plaintiff's claim be
dismissed with costs.

6

No witnesses were called to testify on behalf of the
Plaintiff. However, Plaintiff himself gave evidence, on oath, in
support of his
case. At the close of the case for the Plaintiff,
defendant did not adduce any evidence. He, instead, applied for
absolution from
the instance which application was, however, resisted
by Plaintiff who contended that he had, on a preponderance of
probabilities,
established a case for damages.

Where, at the close of the case for the
Plaintiff, defendant applies for absolution from the instance, the
test to be applied
is, in my view, whether there is, at the close of
his case, evidence upon which a reasonable man might, and not should,
find for
the Plaintiff. I am fortified in this view by the dicision
in Ruto Flour Mills (Pty) Ltd v. Adelson (2) 1958(4)
S.A. 307 where at page 309 Boshoff, J. had this to say on the
issue:

"At the close of the case for the Plaintiff,
therefore, the question which arises for consideration of the court
is : Is there
evidence upon which a reasonable man might find for the
Plaintiff?"

Inasmuch as it is relevant, the evidence, adduced by the
Plaintiff, is that he bought, from the defendant, a hammermill for
the total
purchase price of M12,981-87. As proof thereof, Plaintiff
handed in annexure "MM2" as exh "A" and part of
his
evidence.

7

This, however, contradicts the declarations to the
summons where Plaintiff alleged that on 6th November, 1985, he had
bought the hammermill
for the amount of M12,000.

It is also significant to observe that, according to exh
"A" Plaintiff had, in fact, bought the hammermill, from the
Agricultural
Bank, and not, therefore, from the defendant, at the
total purchase price of M13,912-47. Indeed, Plaintiff handed in
payment receipts
as exh "C" and part of his evidence.
According to Exh "C", Plaintiff had been paying instalments
for the hammermill
to the Agricultural Bank, and not to the
defendant.

In his evidence, Plaintiff further told the court that
later on the hammermill gave him problems. He then went to
defendant's place
of business and reported the problems to a certain
white person whose names he could not even remember. The hammermill
was, on 8th
December, 1987, removed from his home for repairs by
Michael and Eddie Pelser who also took from Plaintiff an amount of
M400 as deposit.
They informed him that they were doing so on the
instructions of the defendant. According to him. Plaintiff believed
and allowed
them to remove his hammermill merely because he had, on
an earlier occasion, seen Michael working at the defendant's place of
business
and Eddie Pelser

8

produced a blank form headed " SERVICE CONTRACT"
and bearing the letter heads of the defendant. The form was handed in
as
exh "B" and part of Plaintiff's evidence.

Plaintiff told the court that when, on 8th December,
1987, Pelser and Michael removed it from his home, the hammermill was
to be returned
after 4 days. It was, however, never returned. On 22nd
February, 1988 Plaintiff caused a letter of demand (annexure MM"3")
to be addressed to defendant. The letter reads, in part:

"Dear Sirs,

re Joseph Nyamane vs Lesotho Steel
Products:

We refer to the abovementioned matter and wish to inform
you that we are herein acting on behalf of our abovenamed client, Mr.
Joseph
Nyamane.

Our client informs us that on or about the 8th December,
1987 your Messrs. Michael and Eddie took his grinder for repairs, but
till
now he hasn't got back his grinder. He is always informed by you
that some spares for the grinder are with Mr. Eddie in Ladybrand.

That being the case, our client's instructions are to
demand from you, as we hereby do, an immediate return of our client's
grinder
which must be thoroughly repaired and in good working
conditions. failing which you must repay our client his M400-00
paid to you as a deposit for the said repairs, together with an
amount of M12,000-00
which is the amount at which the

9

grinder was bought.

The above amounts, together with our 10% collection
commission to be calculated from the total of the above amounts as
well as M10-00
being for this letter of demand should be paid at our
offices within seven (7) days from the date hereof failing which
summons will
be issued against you without any further notice.

Yours faithfully,

M. TAU (Miss) N. MPHALANE & COMPANY"

According to Plaintiff's evidence, before it was removed
from his home, he had been using the hammermill for profit and earned
an
income of M70 a day. Although no record of any kind was produced
to substantiate this evidence, Plaintiff testified that, at the
time
of instituting the present proceedings, he had been deprived of the
use of the hammermill for 595 days. He, consequently, suffered
damages, for which he held defendant liable to him, in the amount of
M4l,650 calculated at the rate of M70 a day for 595 days. This
is,
however, in conflict with the declarations to the summons, as
amplified by further particulars, where Plaintiff alleged that
he had
been deprived of the use of the hammermill for 596 days and
consequently lost earnings in the amount of M41,560 calculated
at the
rate of M70 per day for 596 days.

10

Notwithstanding demand, defendant refused and/or
neglected to pay the amount of M41,650, return the hammermill or,
alternatively,
pay the amount of M12,000, being the cost of the
hammermill, together with the M400 deposit. Wherefor, Plaintiff asked
for relief
against the defendant, as prayed in the summons.

Plaintiff's evidence is, in my finding, too vague and
contradictory to serve as proof of the question in issue, viz. the
claim for
damages. I entirely agree with the decision of Boshoff J.
in Ruto Flour Mills (Pty) Ltd Adelson (2) 1958(4) S.A. 307
where at page 309 the learned judge said:

"if it be a fact that it is too vague and
contradictory to serve as proof of the question in issue - (Shenker
Bros. v. Bester,
1952(3) S.A.664 (A.D.) at p.670 -then it would be
evidence on which a reasonable man would not find, and the court
would be perfectly
justified in granting absolution from the instance
at the close of the case for the Plaintiff".

Assuming the correctness of my finding that Plaintiff's
evidence is too vague and contradictory to serve as proof of the
question
in issue, it must be accepted that, on the authority of the
above cited passage from the decision in Ruto Flour Mills (pty)
Ltd v. Adelson(2), supra, the court is perfectly
justified to grant absolution from the instance.

11

In the premises, I would grant absolution from the
instance, with costs to the defendant.

B.K. MOLAI

JUDGE 12thDecember,1995.

For Plaintiff : Mr. Mphalane For Defendant : Mr. Buys.