THE HIGH COURT OF LESOTHO
CIV/T/460/03In the matter
KIMBERLEY ENGINEERING WORKS
(Pty) LTD. APPLICANT
DELIVERED BY THE HONOURABLE MRS K.J. GUNI ON THE
20TH MARCH, 2006.
contract of sale of goods
Burden of proof of the terms
of the said contract rests on the plaintiff
alleges the contract and relies on the terms of the said
of the identity of the parties to the said
SUMMARY OF THE CASEThe parties in this matter
entered into a verbal contract of sale of goods.The plaintiff
alleges that he sold and delivered the goods to the defendantat
the latters special request and instance. The defendant failed to
pay forthe goods. Plaintiff is suing the defendant for the
payment of the saidgoods.
Held:1. That the plaintiff
must prove the terms of the alleged
contract of sale of goods.
2. That the plaintiff must
prove the identity of the parties to
the said contract.
1. PARTIES TO THIS SUIT The plaintiff in this
matter is KIMBERLEY ENGINEERING WORKS(Pty) LTD. [hereafter
referred to as KEW]. It is a duly registeredcompany according to
the LAWS OF THE REPUBLIC OF SOUTHAFRICA.
It carries on its
business at TRANSVAAL ROAD, KIMBERLEY, SOUTH AFRICA. The
defendant is the MRC BUILDING CONSTRUCTION (Pty)LTD.
[hereafter referred to as MRC]. It is a company dulyregistered in
terms of THE LAWS OF THE KINGDOM OF LESOTHO.It carries on its
business at CREDIT UNION HOUSE, MASERU,LESOTHO. Plaintiff is
suing the defendant for the payment ofM122.299.20 contract price
of goods sold and delivered by plaintiffto the defendant at the
latters special request and instance.
 PLAINTIFFS CASEIt is the plaintiff
s case that the parties entered into an oralagreement of sale
of goods. Plaintiff was represented by one of itsemployees.
Defendant was represented by one EDWARD MOLELLE.In terms of the
said agreement the plaintiff sold and delivered to thedefendant,
goods [i.e. 180 cast iron spearheads for fencing] for anamount of
one hundred and twenty two thousands, two hundredand
ninty-nine maloti and twenty lisente [122,299,20]. It was
anexpressed, tacit and/or implied term of the said agreement that
oncethe goods have been delivered, the defendant will pay.
The delivery of the goods
was made. The defendant has not paid forthe goods. Despite
repeated demands the defendant has failed topay for the goods.
 DEFENDANTS CASEIt is denied by the
defendant that there was ever an agreementbetween the parties for
the sale of goods. It is further denied thatthe Defendants
company was ever represented by one EDWARDMOLELLE as there is no
employee at the defendants company by thename of EDWARD
MOLELLE. No one at the defendant companyentered into an agreement
of sale of goods with the plaintiff. Theterms of the alleged
agreement of sale are also denied. In short thedefendant has
placed a blanket of denials on everything alleged bythe plaintiff
that relates to the alleged contract of sale of goods.Everything
alleged in the declaration is at issue and must be proved.
 THE LAW OF
CONTRACT OF SALE OF GOODSThe contract of sale of goods in our
present case, is governed bycommon law not statute. In common
law the contract of sale ofgoods is concluded when the two
parties with a requisite intentionand capacity to enter into a
valid contract agree together that onemakes something (e.g.
goods) available to the other in return for thepayment of the
price. THE LAW OF SALE AND LEASE, secondedition by A.J. Kerr,
page 3. An agreement is regarded as one ofsale of goods if it
involves the transfer of goods and the propertyrights in the said
goods from the seller to the buyer for moneyconsideration.
It is the evidence of the plaintiffs first witness
[DR. PETERHANCOCK], that the search for the suitable manufacturer
andsupplier in this region [Southern Africa] for the cast
ironspearheads he had designed and drawn for the fencing of the
PRIME MINISTERs official residence, led him to this
plaintiff KEW.Dr. PETER HANCOCK is an Architect and Urban
According to Dr. PETER
HANCOCK, KEW is the only supplier of thesaid cast iron spearheads
known to him. Dr. PETER HANCOCK made the design and drawings for
the additions to the state house and thefencing of the whole
premises. He also supervised MRC whichcarried out the
construction of the extension of the house and theinstallation
and/or erection of the spearheads - fencing thepremises.
On the 11th January 2002, Dr. Peter Hancock
sent an e-mail to KEW plaintiff herein enquiring from them
the period it would take forthe fabrication of the cast iron
spearheads whose detailed drawingshe had previously sent to them.
[Refer to EXHIBIT H1]. It is hisfurther evidence that in fact KEW
was the only supplier given thedesign and drawings of the cast
iron spearheads referred to by DR.PETER HANCOCK. No one else was
given by DR. PETER HANCOCKthe said design and drawings. DR. PETER
HANCOCK received thereply by e-mail on the 24th
KEW replied that it will
take 8-10 weeks from the date of the receipt of the order to
deliver in BLOEMFONTEIN those cast iron spearheadsat [R535.50]
five hundred and thirty five rands and fifty cents eachplus VAT
(Refer to EXHIBITS H2 and H3). The delivery was to bemade in
BLOEMFONTEIN because it was convenient for both parties.
Plaintiff was not going to deliver the spearheads in
MASERU,LESOTHO at no extra cost. The defendant was not prepared
to incurfurther costs in order to fetch the spearheads from
KIMBERLY. Itemerged during the two parties, discussions that
plaintiff deliversgoods to SOUTH AFRICAN RAILWAYS at
BLOEMFONTEIN, regularly.Then they agreed that plaintiff should
come with the spearheads toBLOEMFONTEIN during its regular trips.
Those spearheads werecontained in one box. Putting that box on
the lorry together withSOUTH AFRICAN RAILWAYS goods was of no or
very littlesignificance according to the plaintiff. Defendant
advised the plaintiffof the address in BLOEMFONTEIN where it will
be convenient for him
to collect the said
Plaintiff was instructed to deliver the box of
spearheads at thedefendants chosen address in BLOEMFONTEIN.
Thesearrangements were made by the parties through the use of
thetelephone. The telephone number through which the
defendantcalled and received calls from the plaintiff is not his
companysaccording to the defendant. Before this court that
telephone numberis not known or recognized by the defendant as
his. He deniescommunicating with the plaintiff in any way or
form. That numberappears on the defendants companys
letterheads and faxes. Butstill the defendant persists in his
denials that he spoke to the plaintiffby that telephone or any
other similar device.
Defendant insists that he has never seen or met the
plaintiff. Hedoes not know the plaintiff. He does not suggest
that someone musthave stolen the stationery bearing his companys
letterheads andtelephone number. He does not suggest that
plaintiff and hiswitness have imagined all these facts which show
the court thatdefendant contacted the plaintiff and the parties
entered into a
contract of sale of cast
iron spearheads designed and drawn by pw1.
The collection of the said spearheads was made by the
defendantwho claims that he hired Stutterfords to transport the
spearheadsfrom BLOEMFONTEIN to MASERU. According to the defendant
thesewere not the spearheads from KEW. Defendant claims that
hebought the spearheads that he fenced the PMs official
residencewith locally in MASERU from LESOTHO TIMBERS.
This local suppliers told the defendant that he will
have to paytransport for the goods from BLOEMFONTEIN because they
LESOTHO TIMBERS buy their goods from there. The evidence of
thesupervising designer and architect Dr. PETER HANCOCK
clearlyshows the court that when the contractor this
defendant submittedhis claim for payment of the job well done for
the fencing of the PMsofficial residence he is required as the
supervising consultant tosupport and/or approve the defendants
claim [in EXHIBIT A] hefirst of all investigated especially
the contractors claim for transportfrom BLOEMFONTEIN.
DR. HANCOCK was
satisfied by the transporter that the spearheadswere actually
collected by them from BLOEMFONTEIN. That witness could not say
whether or not those spearheads were from KEW. Atthe same time he
did not know LESOTHO TIMBER as suppliers ofsuch material. He had
not given them his designs and drawings ofthose spearheads.
In his evidence in chief the defendant had claimed that
he used thespearheads which were left over on site, by the
previous contractorwho did not complete the job of fencing the
premises of the PMsofficial residence. Defendant told this
court that it was HANCOCKwho instructed him to use those
leftovers. This was not put to DR.PETER HANCOCK when he testified
before this court. It wastherefore an after thought on the part
of the defendant. Thedefendant said everything he did in respect
of the building ofadditions to the house and the fencing of the
premises was inaccordance with the instructions from Dr. HANCOCK.
He was theone telling the contractor to use the spearheads left
on the side bythe previous contractor.
There was no previous
contractor and when DR. PETER HANCOCK was testifying he never
referred to or talked of any previouscontractor. When DR. PETER
HANCOCK said he advised thecontractor to go to purchase the
spearheads at KEW he was notchallenged. He conceded that he did
not know if the contractoractually did so. He also could not deny
that he got them fromelsewhere. It was not put to the witness
that the contact MRC wasinstructed to use the spearheads he
found on site by the witness.
In civil cases the burden of proof is at the lower scale
than incriminal cases. It is on the balance of probabilities.
There are threescenarios as regards where exactly the defendant
obtained thespearheads he used to fence the PMs official
residence. It is theplaintiffs evidence that this morning on
his way to this court, hewent passed the PMs house. He
observed the spearheads fencingthose premises. He had no doubt
they are similar to the ones hemanufactured in accordance with
the designs and drawings hereceived from DR PETER HANCOCK.Now
let us look at the scenarios. First of all according to the
plaintiffs claim the
spearheads are from him - KEW. According tothe defendant in his
evidence in chief he got the spearheads on thesite left over by
the previous contractor who did not complete thejob of fencing
those premises. Under cross-examination thedefendant put forward
yet another source of the spearheads heneeded to fence in
accordance with the designs and drawings of the consultant
architect Dr. PETER HANCOCK. He claimed he purchasedthe
spearheads locally from LESOTHO TIMBER. When he wasquestioned as
to why then did he claim payment from Ministry ofWorks for
transporting spearheads from BLOEMFONTEIN, defendantadded that
LESOTHO TIMBER buys its supplies at BLOEMFONTEINand they [Lesotho
Timbers] charged him for transporting their stockfrom
BLOEMFONTEIN. Which is the truth? Which is likely to be thecorrect
position. There has been too much posturing by thisdefendant. I
accept as most probable, the story by the plaintiff thathe
supplied the defendant with those spearheads and that as theparties
agreed the delivery was made by the plaintiff to thedefendant at
the address of the defendants choice inBLOEMFONTEIN as shown
on the delivery note - EXHIBIT D. The
spearheads collected by
the defendant from BLOEMFONTEIN were from KEW. On the defendants
valuation of the work done EXHIBIT A. The number and
price of those spearheads coincideexactly e with the number and
price as set out in EXHIBITS C1 andC2.
 IDENTITY OF THE PARTIES TO THE
CONTRACTC1 emanates from the defendant company. It bears the
letterheadsof the defendant company. It bears the signature of
the companyowner Mr. EDWARD MOLELLE. It also bears the date
stamp of thedefendant company. C2, similarly bears the
letterheads of theplaintiff company. It contains some particulars
of the defendantcompany as the applicant of the credit
facilities. It also containssome particulars of the plaintiff
company. It emanates from theplaintiff company as an application
form. It has been completed bythe defendant.
The evidence of Pw2
the owner of the plaintiff company MR DEREK PREECE, clearly
shows that the defendant companyrepresented by its owner Mr.
EDWARD MOLELLE arrived at KEW topurchase the cast iron
spearheads. The defendant according to theplaintiffs evidence,
had problems with paying cash on delivery. Henegotiated credit.
Plaintiff faxed to the defendant EXHIBIT C2 -which the defendant
filled and returned to the plainitiff.
Once his application for credit was approved by the
plaintiff,defendant was sent a fax EXHIBIT B. Which shows
that hisapplication for credit was approved. When he was at
theplaintiff/company, defendant represented by Mr. MOLELLE,
consultedand was helped by one of the plaintiff companys
employee. Whenhe was being cross examined, defendant was shown
EXHIBITS C1and C2. He immediately recognized them. He told the
court thatplaintiff faxed to him an application form for credit
application. Hecompleted the application form and forwarded it to
He recognized and admitted his signature on exhibit C1
acknowledged as his
letter requesting credit for 180 spearheads fromthe plaintiff.
Plaintiff delivered 180 spearheads to the defendant at ischosen
delivery address in BLOEMFONTEIN [Refer to Exhibit F]. Isthat a
mere coincidence? The defendant although he claims hepurchased
locally from the local supplier, he collected the goods alleged
bought in MASERU, from BLOEMFONTEIN because the localsupplier
charged him transport cost from where that supplierpurchased his
stock. This is most unlikely. This did not come outfrom his
evidence in chief. Why did he not tell the court that. Thetransport
costs may be added in the mark up of the price but notcharged
separately from the price. I do not accept that defendanthired
stuttafords to go to BLOEMFONTEIN to collect supplies ofLESOTHO
TIMBER because he the defendant, was going topurchase those
from LESOTHO TIMBERS. The goods collected weretransported to
MASERU. They were those 180 spearheads which theplaintiff sold
and delivered to the defendant at that BLOEMFONTEINaddress
indicated to the plaintiff by the defendant.
BREACH OF THE
CONTRACT Having received the goods sold and delivered by
plaintiff to thedefendant, defendant failed to honour his side of
the contract,therefore causing the breach of the said contract of
sale of goods.On the 28th March 2003 the defendant
wrote a letter Exhibit G tothe plaintiff. He humbly
apologized for the inconvenience he causedthe plaintiff by
failing to pay his account on time. The defendant inthis way
accepted the he was in breach. In that letter the defendantwent
on to say
accept the amount of money I owe you.The
defendant did not only admit that he was in breach of the termsof
the contract of sale of goods to him by the plaintiff, he
alsoacknowledged his indebtedness to the plaintiff. This is the
letter EXBIBIT G which after the lunch-adjournment the
defendantapologized to the court that he had made a mistake by
recognizingthat letter as the one he wrote and by admitting his
I agree with him that he made a huge mistake by
admitting that hewrote that letter. He made a very colossal
mistake by accepting the
signature as his too. But
perhaps the defendant was forced intothese mistakes by the
similarity of the signatures to his own. Thesignature on the
letter - EXHIBIT G and signature in EXHIBIT C1 arethe same. There
is hardly any difference between those signatures.It is the one
and the same signature. But the defendant does notallege any
forgery of his signature on anyone of those documents.Although
this letter Exhibit G is not the only evidence of
thedefendants indebtedness to the plaintiff, it certain goes a
long wayto support the plaintiffs claim. May be he was not
aware that theadmission and acceptance of the letter and the
signature thereonwould connect him to the contract which he is
denying. Evenwithout that letter, the claim can still stand.
Coming back after anadjournment to ask the court to change his
evidence on this point ofhis signature on the letter in which he
acknowledged hisindebtedness, mere confirmed him as a
pathological liar in themaking because before adjournment he was
confident and spokehonestly without hesitations that the letter
is his.The defendant was very uneasy as he repeated his
apologies. Heappeared ashamed and worried. He looked around as if
looking for assistance.
That gave me the impression that he hadbeen advised to change his
evidence on this point. He appeared tobe in some kind of dilemma.
He was not a good liar. Under cross-examination he literally
shredded his own evidence leaving nothingfor the court to
All the documents produced before this court which
emanates fromhis company MRC bear the company stamp and his name.
Theplaintiff has put before the court circumstances and reasons
whichmade him believe that the man he dealt with was MR.
EDWARDMOLELLE. In the light of the evidence indicated above this
court hasfound that MR. EDWARD MOLELLE represented the
defendantcompany MRC at KEW when they [two companies] entered
intothis contract of sale of goods.
 CHARACTER OF WITNESSES IN THIS CASE.
Pw1 was a very fair honest and truthful witness. He did
exaggerate or embellish
his evidence in anyway. He told the court that KEW was the only
manufacturing company of spearheads whichhe gave his designs and
drawings to manufacture those spearheads.But he readily conceded
that he could not rule out the passing of hisdesign and drawings
by the defendant or KEW to anyone.
Again he could not say for certain the spearheads which
thedefendant installed or erected for fencing the PMs official
residenceare from KEW. He had advised the defendant to purchase
thespearheads from KEW but he did not know or see KEW deliver
thosespearheads to the defendant. The spearheads presently
standing aspart of the fence around the PMs official residence
are according tohis designs and drawings that he presented to KEW
to manufacturethem. Although he said KEW is the only spearhead
manufacture thathe knows, he could not definitely say there are
Pw2 also gave evidence well and in a straightforward
manner. Hewas not caught lying anywhere during the time he
testified beforecourt. He had no difficulties to answer any
question put to him. He
did not contradict his
evidence in chief under cross-examination. Hedid not create new
and different stories when cross-examined.
Defences only witness the defendant himself
contradicted himselfunder cross-examinations. He had no scruples
whatsoever to tellblatant lies one after another. For example he
initially claimed in hisevidence in chief that he found abandoned
on site the spearheadsused by the previous contractor who did not
finish the job.
Then later on changed the story and claimed that he
purchasedspearheads from LESOTHO TIMBERS. He said LESOTHO TIMBER
isa local supplier here in MASERU. But when shown Exhibit A
andasked why did he claim payment for transport from
BLOEMFONTEINwhen he bought spearheads locally, he then adds that
his localsupplier LESOTHO TIMBER told him that he will charge
himtransport costs from where it obtains its supplies
Despite this claim, in his discovery affidavit he says
he has in his
documents to use in this trial. When he was asked ifhe had a
receipt as proof of his purchase from LESOTHO TIMBER,defendant
answered is the affirmative but added that he does nothave the
receipt in his possession. He left it behind. Whatever thatmeans.
I have great difficulty believing anything said by thiswitness.
He should have shown this court in his evidence that hepaid
separately for the goods and also for transport. The bits andpieces
of evidence extracted under his cross-examination are notcoherent.
They are scattered and do not come together to make anysense.
Why in his discovery affidavit, did he say he has no
documents in hispossession in respect of this suit if he knew he
has receipts for hispurchases of materials used in this
construction contract? Why doeshe have the receipt now, under
cross - examination though not onhis person when in his pleadings
he clearly denies having any.
In conclusion I have found that the plaintiff has proved
contract of sale of goods
which he and the defendant entered into asalleged. I am satisfied
that plaintiff has established on the balanceof probabilities
that the defendant breached the term of the saidcontract by
failing to pay for the goods sold and delivered to him bythe
plaintiff. Defendant is therefore liable for the payment
ofM122.299.20 which he owed the plaintiff.
The plaintiffs action succeed. The judgment is
entered against thedefendant in terms of prayers;
the payment of the sum of M122,299.20.
interest at the rate of 15.5% per annum
costs of suit.
For Applicant : Webber Newdigate
For Defendant : Mr. Phafane
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