CIV/T/596/2002 CIV/APN/99/2006
IN THE HIGH COURT OF LESOTHO
In the matter between:
THE LIQUIDATOR OF LESOTHO BANK PLAINTIFF
(In liquidation)
And
AUTHER MOKOENA MAJARA DEFENDANT
JUDGMENT
Delivered by the Honourable Mr Justice T. Nomngcongo On the 7th November 2007
The Plaintiff instituted action against the defendant for payment of the sum of M46,349.15, being an amount the plaintiff alleges is due, owing and payable by the defendant to the plaintiff in respect of a Hire Purchase Agreement entered into between the parties in Maseru on the 9th March 1992.
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At the commencement of the proceedings it was agreed between the parties and the trial proceeded on that basis that the only issue was whether as pleaded by the defendant he had discharged his obligation under the agreement. This was if anything a tacit acknowledgement of the agreement between the parties. In any case, it was confirmed by the agreement itself which explicitly indicated that it was between the plaintiff Auther Mokoena Majara and Lesotho Bank (now in liquidation). Now the defendant is no ordinary layman. He can, as he demonstrated when he testified, distinguish between a natural person and a juristic person. So there is no question that he might have been mistaken and that perhaps he was signing in a representative capacity as it was suggested during the cross-examination of the plaintiffs witness.
Since the defendant alleges that he has paid what was due and owing to him I ruled that the onus was on him to prove payment. In this regard it was held in ELECTRA HOME APPLIANCES V FIVE STAR TRANSPORT 1972(3)SA583at585(F-9)
"It was laid down in Pillay v Krishna that when the defence to a claim for a sum of money is that it has been paid, the onus of proving payment is on the defendant. That statement of the law may have been obiter, as counsel for the defendant suggests. But it was a firm statement,concurred in by Watermeyer CJ., Tindall
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J.A. and based upon what appears to be a wealth of authority" per Colman J.
The summons alleges that the defendant in breach of his obligations under the Hire Purchase Agreement was in arrears in the sum of M81,349.15 calculated in accordance with annexure "C". Annexure "C" is what was called by the witnesses a spread sheet. It reflects an initial amount of M34,000.17 which with interest escalated to R81,349.15 over the years. The summons goes further to allege that the vehicle subject matter of the agreement was repossessed and sold at a public auction for M35,000 hence the present reduced claim for R46,349.15.
The defendant says he made accelerated payments on the agreement and finished in 1994 well ahead of the agreed time, obtained the
ownership documents of the vehicle from the bank and disposed of it by way of sale to one Oscar Frietas around 1995. He refers us in this regard to a contract of sale which is annexed to the papers. He is unaware that either that it was
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repossessed or sold at a public auction as he had no further interest in it. The defendant says he is unable to produce any documentary evidence to prove payment. All his documents went up in flames during the 1998 disturbances. He attempted however to demonstrate on the documents annexed on behalf of the plaintiff to show that he had a zero balance with the bank. Well, he did not profess to be any kind of expert in reading balances and such like but he was not convincing and he certainly did not convince me of anything on the figures he pointed out. For example in Exhibit "B" under the second account heading 0010-001251 -005 MAJARA A.M. there appears the following transaction:
Current Account Maloti
Credits Posted Account Balance
Transfer- Credit
104,667.99 02 Aug 0.00CR
And again
0010-001251 -005 MAJARA A.M. Current Account Maloti
Particulars Debits Credit Posted Account Balance
TO 0010-948003-426
Account closing Balance 04 May 0.00CR
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The amount of 104,667.99 appears again on the second page of Ext "B" but this time it appears as and under the column Account Balance. Obviously these things would need explaining by those qualified to do so and the applicant and I are not. As they stand they do not convey any meaning to us. Mr Majara cannot claim on the basis of that document that he had a zero balance, whatever that means.
In the final analysis we are left with the defendant's word that he made full payment sometime during 1994.
Now the plaintiff led the evidence of one Ntsoaki Mooki who was a registered accountant and auditor of the firm Moss Roland. Among others this firm does the books of Lesotho Bank (in liquidation). She was asked by the attorneys for the plaintiff to look at the records in their possession relating to this case. An examination of these documents revealed that the plaintiff had on 9th March 1992 entered into Hire Purchase Agreement with the
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defendant and the full purchase price of the contract was Rl27,309.01. A deposit of M33,275.33 was paid leaving a balance of M94,003.85.
Account number 010001251301 was used to service this account.
From that year according to the statements of account from Lesotho Bank that this witness testified to the plaintiff paid regularly an amount of M2,612.05. This appears from the document Ext "C".
This continued up to the 26 June 1994 when we see the last statement of account from Lesotho Bank. The statement reflects a balance of R34,000.17.
The witness next referred to Ext. "A". Now this document is what was described as a spread sheet. It is not like Ext. "C". It does not emanate from Lesotho Bank but rather from Lesotho Bank (in
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liquidation). It appears therefore that it was prepared by or at the instance of the liquidators.
Ext. "A" starts with an opening balance of M34,000.17. The witnesses says it is the same balance as was outstanding on the plaintiffs account as at 26th June 1994. Indeed it is, and what is clear is that whoever prepared and computed the figures on Ext. "A" simply picked up the amount and started calculating on it.
Be that as it may, the immediate question that arose was what had happened to the accounts for the remainder of 1994 and the years 1995 and 1996. The explanation given was that the plaintiff was not paying and the matter had been referred to "legal". I assume by that she meant the legal department. The explanation is clearly untrue. First of all, this witness did not work for LESOTHO Bank and she would not know such things. Secondly, it is unconceivable that a bank would suddenly take legal action against a customer who had been servicing his account as religiously as
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did the plaintiff over the years. Why would the plaintiff have stopped so suddenly in just one month. Where is the record to show that the matter was referred to "legal" and whatever the result of that. Surely things are referred to lawyers for them to take action and not to keep them for two years and then return them to clients without any action.
I do not believe for one moment that there were no other statements of account from Lesotho Bank after the 26 June 1994 relating to the plaintiffs account, and judging by his previous pattern of behaviour I have little doubt that he effected further payments into the account although it is impossible to say how much.
To conclude the absence of the Bank records after the 26th June have cost a serious doubt on the case for the plaintiff. The plaintiff was selective in the production of documents and he chose those that favour him particularly Ext. "A" which I regard with extreme
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suspicion. It is a document that emanates from and was prepared by the liquidators of Lesotho Bank and is not an audited account of Lesotho Bank statement of accounts.
The action is dismissed with costs.
T.NOMNGCONGO
JUDGE
For Plaintiff: Du Preez
For Defendant: Mr Mokobocho
