HIGH COURT OF LESOTHO
(Pty) Ltd 1st Defendant
Senekane 2nd Defendant
Mohloboli 3rd Defendant
by the Honourable Mr. Justice T Monapathi On the 17th October. 2006
an application for absolution from the instance. It comes after the
Plaintiff in this matter had led evidence in support
of his claim for
damages and then closed his case.
concerning applications from the instance in actions for damages has
been stated by Stratford J in Hersman V Shapiro 1926
"If it is certain that perenviary damage has been suffered the
court is bound to award damages. It is not so bound in the
evidence is available to the Plaintiff which he has not produced. In
those circumstances the court is justified in giving
and does give
absolution from the instance." What the learned Judge means in
my mind is that for an application for absolution
from the instance
in an action for damages to succeed the Plaintiff must be found to
have failed to substantiate his damages.
authors Visser and Portgieter have written, it is incumbent upon a
Plaintiff to produce sufficient evidence substantiating
amount of his damages. Failure to do this is fatal to a Plaintiff's
case. See Visser and Portgieter The Law of Damages;
Cape Town Juta &
Co. Ltd. 1993 at page 437.
Plaintiff in this matter issued Summons against the defendant's
of M5,284.98 in respect of damaged merchandise in trade.
of M8,000.00 in respect of repairs to a crashed building.
of M100.00 per day for loss of business calculated from the date of
damage to the building to date of payment.
at 11% p.a. from the date of issue of Summons to the date of
and/or attentive relief.
that give rise to the Plaintiffs action for damages are briefly as
second Defendant was employed by the first Defendant as a driver. On
or about the 20th November, 1994 and at Mokhotlong Township
second Defendant allowed the third
to drive the first Defendant's motor vehicle. It was a heavy truck.
The vehicle crashed into the Plaintiff's rented business
while being driven by the third Defendant. The second Defendant had
no authority to allow the third Defendant to drive
the vehicle. The
crash resulted in some damage to the Plaintiff's rented business
premises. It also resulted in loss of business
to the Plaintiff which
was caused by damage to his stock-in-trade which was located in the
Plaintiff led his own evidence in support of his claim. He also led
evidence of one witness Mputo Ramoholi and then closed his
first and the second Defendants took the view that the Plaintiff had
failed to substantiate his claim hence the present
absolution from the instance.
To make a
finding on this application this court as to revisit the evidence led
in support of the Plaintiffs claim. The evidence
led in support of
the claim for damages for ruined merchandise
of a list of such merchandise. PW 2 Mputi Ramoholi led the evidence
in question. He conceded under cross-examination that
he did not know
the value of the merchandise.
Plaintiff himself led evidence in support of the claim for damages
for loss of business. He conceded under cross-examination
that he had
not revealed to the court what his gross income was nor had he told
the court what his running expenses were in order
to arrive at the
figure Ml00.00 per day.
respect of the repairs to the Plaintiffs damaged rented business
premises, the Plaintiff handed in a quotation for such repairs.
had been prepared by a builder. This court accepted the quotation as
proof of an agreement between the Plaintiff and the builder
as proof of the contents thereof as it had been submitted.
now the entire evidence led in support of the Plaintiffs claim, it
can hardly be said that the Plaintiff has substantiated
amount of his damages as required by the law. The concessions made by
both the Plaintiff himself and PW2 had to be considered.
application was refused for the following reasons Mr Ntlhoki
Ntlhoki submitted that application for absolution from the instance
ought to fail in that a reasonable court might find for Plaintiff.
said regard should be had to the following; Firstly, the conduct of
defendant as manager, secondly, the bare unsubstantiated
the plea. Thirdly, the evidence of plaintiff concerning the amount he
expected in repairing the building. Fourthly,
the evidence of
plaintiff in cross examination about the merchandise destroyed. The
evidence relating to the repair of the building
statements both of which were not
(unavailable) as set out in the discovery affidavit. He contended
that all the above stood out to indicate that, there
other hand Mr. Malebanye contended that the items/issues over which
there had (not) been no proof called for absolution as
Indeed, there were addresses from both sides geared to demonstrate
the requirements for proof of damages. But I thought
the approach was
different because the approach is not whether the court at this stage
believes the plaintiff or the defendant.
It is whether the court in
exercising its discretion finds justification, for example in this
instance, granting absolution in
one part of the claim and refusing
the same with regard to the other part of the claim. There is
obviously no justice in this approach.
it is this problem which is illustrated by the judgement of Mofolo J
in Malefu Francina Letsielo v Ernerst Lethola Khobethi
and two (2)
others CIV/T/628/95, 30th September, 2005 (unreported) where, the
at the idea of granting absolution without hearing the defendant.
At page 5
of his judgment Mofolo J speaks of the need to evaluate evidence from
both sides which is only possible after both sides
have closed their
evidence. He goes on to quote the case of Theron v Behr 1918 CP.D 443
in which the following quotation is to
"Which is that according to the practice in this court in later
fears Judges have become very loath to decide questions of
without hearing all the evidence on both sides."
The learned Judge goes on to canvas the question where "a
defendant who might be afraid to go into the box should not be
permitted to shield behind the procedure of absolution from the
Supreme Service Station v Fox Goodrige (Pty) Ltd 1971 (4) SA 90 (RAD)
at 93. Refer to page 6 of Mofolo J's judgment. This
court has to hear
both sides. Defendants may decide to close their case as they are
entitled to do. Still justice will have resulted
in the circumstances
of this case.
the application is refused and costs will be costs in the cause.
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