IN THE HIGH COURT OF LESOTHO In the
CARL RUSSEL PRINGLE Plaintiff
andPORTUGUESE CONSTRUCTION (PTY) LTD Defendant
Delivered by the Honourable Chief Justice Mr Justice
J.L. Kheola on the 3rd day of February. 1995.
In this action the plaintiff is claiming:
Payment of the sum of M30,770.00;
Interest thereon at the rate of 18% atempora morae;
Coats of suit;
Further and\or alternative relief.
In his declaration the plaintiff alleges that on or
about March, 1990 plaintiff entered into a verbal agreement with one
Da Mota E. Silva in the latter's capacity as Managing
Director of defendant in respect of a joint venture to build three
for the German Volunteer Service in Semonkong in the
district of Maseru.
In terms of the agreement the plaintiff was to go to
Semonkong and do the actual construction and completion
of the said project while the defendant was to supply the necessary
material and deliveries.
It was a further term of the agreement that the profits
from the joint venture would be shared equally between the parties.
On or around August, 1990 plaintiff completed
construction of two of the houses and parties realised a profit of
was received by the said Fernando Da Mota E. Silva
on behalf of the defendant.
On or around March, 1990 while at Semonkong the
plaintiff had to spend M2,600.00 from his own pocket for the purpose
and benefit of
the joint venture.
Between May and August, 1990 the said Fernando Da Mota
E, Silva, on behalf of the defendant, paid the plaintiff the sum of
and the parties agreed that he would pay the balance of
the plaintiff's share of M28,170.00 plus tine aforesaid sum of
by the end of August, 1990.
In its plea the defendant denies that it had a joint
venture with the plaintiff. It avers that on the date alleged the
plaintiff approached the defendant for employment and it
was agreed between the parties that the defendant would build three
on behalf of the plaintiff. It denies that there was any joint
The plaintiff was to be remunerated for his services by
being paid an amount equal to half of the profit the defendant
making in respect of the building project.
Defendant denies that the plaintiff completed
construction as alleged or at all and avers that as a result of the
to complete the building, the defendant
terminated the agreement and completed the construction itself. It
denies that a profit of
M80,000,00 was realised. It admits having
paid the plaintiff M11,830.00 but denies that a balance was to be
So much about the pleadings.
The plaintiff testified that before they entered into an
agreement of a joint venture the defendant took him to Semonkong in
to inspect the sites where the construction of the three houses
was to be made. After the inspection of the sites the plaintiff
an interest in the joint venture. The terms of the joint
venture were that the plaintiff would supply three of his own labour
he would provide his own tools,
equipment and his own transport. The defendant would
provide three brick-layers, expenses money for casual labour.
The defendant (Mr. Silva) explained that the cost of
building the three houses would be M217,000.00 and that they would
an estimated profit of M142,000-00. After each house
was completed they would get a letter of acceptance from the
developer. An inspector
from Works would also be present as well as
the engineer. If there were any faults the engineer and the inspector
would prepare a
list and corrections would have to be made.
The plaintiff says that he completed the construction of
two of the three houses. Re was unable to build the third house
site was inaccessible by road. The L.C.U, was expected to
construct a road to that area but that never materialised. With
to the two houses completed a list of corrections was made
(See Ex "A"). The corrections were made by him and Exhibit
and "C" are letters of acceptance of the two
The plaintiff testified that as an experienced building
contractor he was able to calculate the profit when he took into
costs, materials' costs etc. He was quite sure that
they made a profit of M80,000.00 when all the costs are
The defendant has not given any evidence.
Mr. Buys, attorney for the defendant, submitted that the
plaintiff must seek out the right defendant. In his evidence he says
he entered into this agreement with Fernando Da Mota E. Silva
and not with the defendant. It eeems to me that Mr. Buys has
his client's plea in CIV\T\316\91. In that case the
plaintiff sued Fernando Moda trading as Lesotho Block and Paving. In
Mota said that his correct names were Fernando Da Mota E.
Silva and he averred that any agreement which may have been entered
with plaintiff was entered into by the defendant in his capacity
as the representative of Portugues Construction (Pty) Limited
defendant) and not in his personal capacity.
It seems to me that the question of the right defendant
in the present proceedings was established beyond any reasonable
the defendant's plea in CIV\T\316\91. The defendant cannot
again raise the question of who the right defendant is in the present
The plaintiff has proved on a balance of probabilities
that he and the defendant made a profit of about M80,000.00 and the
defendant has failed to rebut the evidence of the
plaintiff. Why is the defendant not honest and not prepared to take
the Court into
its confidence and disclose what profit was made and
how much it is prepared to share with the plaintiff?
The plaintiff has produced documentary evidence
(Exhibits "B" and "C") that the two houses in
question were completed
and all major faults were corrected.
The plaintiff has proved that his payment when the
building was completed was that they would share the profits. The
that payment was to be equal share of the profits
but alleges that: the plaintiff was a mere employee of the defendant,
It is improbable
that a building construction company of the size of
the defendant could share its profits with its employees. That would
it is unable to pay its employees. I agree with the
plaintiff that he was not an employee of the defendant.
The evidence of the plaintiff has not been controverted
at all. The plaintiff was a very good witness who gave his evidence
was never shaken in cross-examination.
In the result judgement is for plaintiff in the sum of
with interest at the rate of 18% a tempora morae with
costs of suit.
J.L. KHEOLA CHIEF JUSTICE
3rd February, 1995
For Plaintiff - Mr. Nathane For Respondent _ Mr.
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