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 27th November 2006
Plaintiff herein instituted an action against defendant in which he claims:-
Payment of M40, 000.00 (Forty thousand) general damages;
Interest therein at the rate of 18% a tempore morae;
Costs of suit;
Further and/or alternative relief.
This action arose from a contract of sale entered into between the parties on the 29th 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:-
He admitted the contract of sale, the price as stated and having taken delivery of the tractor.
He denied having paid M3, 000.00 only and pleaded to have paid plaintiff in full and final settlement as agreed.
He denied the rest of the averments as quoted above from plaintiff’s declaration.
The matter was argued before me on the 27th September 2006 following the granting of a default judgment in favour of plaintiff on the 6th June 2005 and a successful application for rescission of same on the 30th 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 2nd 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 29th 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 5th 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 3rd 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
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