CIV/T/543/04

IN
THE HIGH COURT OF LESOTHO

In
the matter between:-

LIRAHALIBONOE
LETSIE PLAINTIFF

and

MOTLOMELO
SELEMELA DEFENDANT

JUDGMENT

Delivered
by the Honourable Madam N. Majara

on
the 27^th
November 2006

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

1. Payment
   of M40, 000.00 (Forty thousand) general damages;

   
   

2. 
   Interest therein
   at the rate of 18% a tempore morae;

   
   

3. 
   Costs of suit;

   
   

4. 
   Further and/or
   alternative relief.

   
   

This action arose
from a contract of sale entered into between the parties on the 29^th
January 2001, whereby plaintiff allegedly sold a tractor to defendant
at the total price of M18 000.00. Per the plaintiff’s

declaration, it was agreed that defendant take immediate possession
of the tractor and to effect payment in December 2001.

It is plaintiff’s
case that defendant failed to pay the purchase price as agreed and
that sometime in January 2002, he approached
defendant demanding
same but the latter only paid about M3 000 after a few months and
made a verbal and written undertaking to
pay the balance soonest.

Plaintiff further
alleged that in acknowledgement of his letter of demand, defendant
confirmed using the tractor and finding it
in a satisfactory
condition but still refused to pay as was agreed. He went further to
state in his founding affidavit at paragraphs
8, 9, 10, 11 and 12
respectively:-

“While
using it Plaintiff during ploughing season earned M960.00 per day
charging M120.00 per acre, over 8 acres. The Defendant
however used
the said tractor for four month (sic) for his own benefit thus
depriving Plaintiff of the profits he could have earned.

The Defendant
having used the said tractor when he failed to pay in December 2001
was in breach of the contract by using it after
the breach and for
his own benefit.

Plaintiff
received no profit either in full payment of M18, 000.00 as agreed or
return of the tractor.

In consequence
of the breach and illegal use the Plaintiff has lost the tractor and
claims general damages and deprivation of profit
in a total sum forty
(sic) thousand maloti (M40 000.00) and interest at the rate of 18%
a
tempore morae.”

Defendant’s
plea to these allegations amounted to the following:-

1. He
   admitted the contract of sale, the price as stated and having taken
   delivery of the tractor.

   
   

2. He
   denied having paid M3, 000.00 only and pleaded to have paid
   plaintiff in full and final settlement as agreed.

   
   

3. He
   denied the rest of the averments as quoted above from plaintiff’s
   declaration.

   
   

The matter was
argued before me on the 27^th
September 2006 following the granting of a default judgment in favour
of plaintiff on the 6^th
June 2005 and a successful application for rescission of same on the
30^th
June 2005.

From the
pleadings, that sometime in October 2001, plaintiff and defendant
entered into a contract of sale of a tractor for M18,
000.00 on
condition that defendant would pay the full purchase price to
plaintiff in December of the same year is common cause
and that
defendant took delivery of the tractor about two (2) days later.

The only disputed
fact is whether after delivery of the tractor defendant paid the full
purchase price as was agreed by the parties.
It was plaintiff’s
testimony that after defendant took delivery of the tractor, he did
not pay him the full purchase price
as was agreed but only paid the
sum of M3, 000.00 after he made several demands on him and that to
date defendant still owes him
the balance of M15, 000.00.

It is also
plaintiff’s case that defendant owes him the total amount of
M40. 000.00 in general damages which is made up of
the loss of
earnings he would have made from ploughing other people’s
fields which he used to do before he sold the tractor
to defendant.

After the
plaintiff closed his case, Mr
Mahlakeng
counsel for defendant applied for absolution from the instance in
terms of Rule 41 (6) on the grounds that the evidence of plaintiff

established that there was a contract of sale of a tractor between
the parties and that plaintiff paid up the sum of M3, 000.00
leaving
a balance of M15, 000.00 so that the subject matter of the agreement
was no longer the property of plaintiff but of defendant.

Counsel for
defendant also submitted that plaintiff had not even managed to
discharge the onus of proving that the property was
his. In
addition, that there was no evidence supporting the claim of M40,
000.00 for general damages because the plaintiff’s
claim is for
a money debt and that the basic measure of damages for a failure to
pay an amount of money is the current rate of
mora
interest
on the amount with interest being payable from the moment of mora.

Mr Mahlakeng
further submitted that it is only where the non-possession of money
causes special damage that compensation is recoverable, but
only if
such damage was foreseen or foreseeable. He added that a breach of
contract is not in itself a wrong carrying an award
of damages unless
patrimonial loss of the aggrieved party has in fact occurred.

In response,
Mr Makhera
for plaintiff made the submission that when the plaintiff closes its
case the Court should look at whether he has made a prima
facie case
against defendant and not whether he has proved his case on a balance
of probabilities. He added that plaintiff has
proved the existence
of a contract between him and defendant which he contended was not
denied.

It was also the
submission of counsel that plaintiff has proved breach due to failure
of payment of the purchase price as a result
of which he suffered
damages. On the issue of whether plaintiff could have claimed the
purchase price and interest thereon Mr
Makhera
pointed out that one of the remedies for breach is general damages
and that plaintiff need only prove that he suffered loss as
a
consequence of that breach. Further that a plaintiff needs only to
show that the defaulting party has been unjustly enriched
as a
consequence of the breach which per his contention, plaintiff in
casu has
shown.

Counsel for
defendant added that defendant has not put any contradicting evidence
that he did not gain anything while defaulting
and that there is an
inference of loss to plaintiff centering on the cause of action on
whose basis the Court has to be wary of
granting absolution. He also
pointed out that although in his plea defendant averred that he had
paid the full purchase price
in full this was not put to plaintiff
when he was in the witness box and that due to these contradictions
defendant has a case
to answer.

In conclusion Mr
Makhera
submitted that the issue for determination at this stage is whether
there is an inference of a cause of action and not for the
Court to
evaluate the evidence of the plaintiff. Further, that the issue of
ownership was not raised in the pleadings but that
of quantum.

I now proceed to
deal with the application for absolution from the instance.

The main ground
advanced before the Court by Counsel for defendant was that plaintiff
should not have claimed general damages but
only the balance of the
purchase price as he alleged defendant had paid him M3, 000.00 albeit
with the rider that plaintiff had
not discharged the onus of proving
ownership of the tractor.

In his plea,
defendant did not answer the averments contained in paragraphs 4 and
5 of the plaintiff’s declaration which basically
detailed how
the alleged contract, the source of the dispute between the two came
about. He however answered the allegation that
he did not pay
plaintiff on time as per the contact terms but only paid the amount
of M3,000.00 as follows:-

“Defendant
denies each and every allegation therein contained as if specifically
set out herein and so denied and the plaintiff is
put to the proof
thereof.

Defendant
pleads that the plaintiff was paid in full and final settlement as
agreed.”

From these
averments as they stand, defendant did not raise the issue of
ownership but only averred that he paid plaintiff in full
and final
settlement. I am therefore of the view that Mr.
Makhera
was right is his submission that defendant cannot be allowed to raise
the question of ownership at this stage when he never put
it in
issue.

On the question of
plaintiff’s claim of general damages, although most scholars
are agreed that the term damages is not easily
defined, it is trite
that in cases of breach of contract, a plaintiff may in certain
instances claim general damages. Thus it
has been stated R
H Christie’s Law of Contact in South Africa 2^nd
Edition
at 639
that:-

“…damages
for breach of contract are normally not intended to recompense the
innocent part for his loss, but to put him in the position
he would
have been in if the contract had been properly performed.”

In addition, in
dealing with general damages for breach of contract, in their work,
The
Law of Damages 1993, P J Visser ad J M Potgieter
p
19 have
this to say at:-

“In
contract, general damage is the damage that flows naturally from a
breach of contract and which the law presumes that the parties

contemplated would result from such a breach;…”

It is therefore my
understanding of this position that where the other party is in
breach, a plaintiff is entitled to general damages
that flow directly
from the contact or that are intrinsic to the said contract. He
cannot claim any other damage which the parties
had not contemplated
at the time they entered into the contract of sale.

In casu,
whilst plaintiff did allege in the last paragraph of his declaration
that ‘in
consequence of the breach and illegal use the Plaintiff has lost the
tractor and claims general damages and deprivation
of profit in a
total sum forty (sic) thousand maloti (M40 000.00 and interest
thereon at the rate of 18% a
tempore morae’,
it was also his case that the said contract was that of sale of the
tractor, the subject matter of this action for the amount of
M18,
000.00 which defendant was expected to pay by December 2001.

This being the
case, it is my opinion that the mere fact that plaintiff averred that
whilst using it before the contract was entered
into he used to earn
M960.00 per day charging M120.00 per acre and that defendant used the
tractor for four months for his own
benefit thus depriving plaintiff
of the profits he could have earned does not change the fact that the
purported contract between
the parties was for sale of a tractor
after whose delivery plaintiff was only expecting the amount of M18,
000.00 as the full purchase
price, nothing more nothing less.

This is
strengthened by the contents of Exhibit A which was written on the
29^th
October 2001 and signed by the parties and two witnesses in which the
agreement of the sale was reduced in writing. Per this letter
and
the plaintiff’s averments, I am of the view that it was never
the intention of the parties that anything else would be
due to
plaintiff other than the purchase price. The locus
classicus
is the case of Holmdene
Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 at
687
where the learned Corbett JA stated that:-

“To
ensure that undue hardship is not imposed on the defaulting party…
the defaulting party‘s liability is limited in
terms of broad
principles of causation and remoteness to (a) those damages that flow
naturally from the kind of breach of contract
in question and which
the law presumes the parties contemplated as a probable result of the
breach, and (b)those damages that although
caused by the breach of
contract, are ordinarily regarded by law as being too remote to be
recoverable unless, in the special circumstances
attending the
conclusion of the contract, the parties actually or presumptively
contemplated that they would probably result from
the breach….”

This then brings
me to the question whether for the reason that plaintiff claimed
general damages instead of the balance of the
purchase price and I
might add interest thereon, this Court should at this stage grant the
defendant absolution from the instance
all things considered.

As I already
mentioned above, defendant pleaded that he paid the full purchase
price and as such, did not deny that the parties
did enter into a
contract of sale of a tractor for M18, 000.00. From the pleadings
and the evidence placed before the Court, plaintiff
averred that he
was only paid the sum of M15, 000 00. According the contents of
Exhibit C, a document which bears the stamp of
the area chief, and
which ex
facie
was written on the 5^th
May 2002 and signed by plaintiff and defendant, the latter
acknowledged having paid the former the sum of M3, 000.00 and still

to pay the balance of M15, 000.00.

Exhibit D in turn,
is a letter which was ex
facie
written by defendant on the 3^rd
March 2002 acknowledging his indebtedness to plaintiff and
undertaking to pay him as soon as he had sorted out matters
concerning
a certain cheque. In my opinion, the plaintiff has
succeeded to make out a case for damages for the balance of the
purchase price
even if he failed to make one for general damages in
the amount of M40, 000.00 as claimed in his summons. The onus
therefore shifted
on to the defendant to prove that he had executed
fully, his part of the contract.

As I have already
stated above, it is trite that in cases of breach of contract, the
Courts have the duty to place the plaintiff
in the position he would
have been had the other party performed. In their endeavour to do,
Courts have also been warned to adopt
a flexible approach so that
even where a plaintiff has not successfully proved the whole damages,
he should at least be awarded
those he has proved or, be placed in
the position he would have been had the defendant performed. See the
case of Esso
Standard SA (Pty) Ltd v Katz 1981 (1) SA 964 at 969-970.

If such is the
case, it is my view that I cannot correctly grant defendant herein
absolution from the instance because I have already
shown that
plaintiff has made out his case for the balance of the purchase price
in the amount of M15, 000.00. I accordingly dismiss
the application
for absolution from the instance.

Costs will be in
the cause.

N.
MAJARA

JUDGE

For
plaintiff : Mr Makhera

For defendant : Mr
Mahlakeng